RMI 4 Law members enjoy benefits such as 24/7 legal advice, representation by qualified practising Attorneys and standard legal documentation. A recent example: A RMI 4 Law member was confronted by a client who refused to settle his bill in full. On this Friday afternoon, a quick telephone call to RMI 4 Law connected the member to an Attorney who explained and confirmed the member’s right of retention of the vehicle until the bill is settled. After payment in full, the client left the premises with the repaired vehicle and nothing was heard from him since.

By having immediate access to the telephonic legal advisory service, the RMI 4 Law member avoided being drawn into litigation by having to institute collection action against the client. These events underscore the value in obtaining legal advice in good time, thereby ensuring positive cash flow and avoiding unnecessary legal action.

In the next articles, attention will be given to representation by practising Attorneys and standard legal documentation.

These and other benefits are available to RMI members.

All you have to do to join, is to contact RMI 4 Law at 0861 668 677.

Automotive greetings from RMI 4 Law.

The phrase: “Don’t fix it if it aint broke” comes to mind when considering the failure by second generation businessmen and RMI 4 Law member to update the standard terms and conditions utilized by his father over many years. Account must be taken of changes to the business environment, such as the recent implementation of the National Credit Act (“NCA”). When attempting to rely on the written agreement, consisting of standard terms and conditions, the RMI 4 Law member found himself falling short of the mandatory provisions of the NCA.

The customer relied on the agreed terms and conditions some weeks after the transaction was concluded, placing the RMI 4 Law member in a difficult legal position. As one of the benefits enjoyed, the RMI 4 Law member accessed and implemented standard legal documentation, in order to prevent a similar problem in future.

Were he not a member of RMI 4 Law, access to standard legal documentation may have cost him thousands of Rands, in consultation with- and drafting by a legal practitioner.

You too can enjoy these and other benefits as a RMI 4 Law member. All it takes is a telephone call to RMI 4 Law at 0861 668 677.

In our next article, we will feature some of the additional benefits enjoyed under membership to RMI 4 Law.

Automotive greetings from RMI 4 Law.

The best known form of a Company is a Private Company, having share capital and the most important characteristic is that the risk attaching to those who have contributed to the share capital, does not extend further than the amount which they paid for their shares. The liability of Shareholders for the debt of the entity is thus limited. As the majority of Companies enjoying RMI membership are Private Companies, attention will be focused on this form of enterprise as opposed to Public Companies.

Similar to Close Corporations in this aspect, Private Companies have their own distinct legal personality, separate from its members (also called “Shareholders”) and its Directors. This means that the assets and liabilities of the Company belong to the Company itself. Shareholders have no proportionate right of ownership in the assets of the Company and only in the event of Liquidation or winding up, the Shareholders become entitled to share in the free residue of the assets of the Company. The debts of the Company are its own and cannot be recovered from Shareholders. The profits belong to the Company and Shareholders only become entitled to their portion of the profit when a dividend is declared. Shares in the Company are freely transferable, unless the existing Shareholders agree to the contrary.

Shareholders are generally not entitled to represent the Company in its business transactions. The effective control of a Company is vested in its Directors, who are appointed by the Shareholders. Unlike Close Corporations where members are entitled to be involved in the business of the CC and has equal rights to manage and represent the Corporation, Shareholders in Companies are not entitled to represent the Company. Although Shareholders are entitled to appoint Directors of their choice, Private Companies often find some or all of their Shareholders also enjoying appointment as Directors of the Company.

The Company is taxed at the current rate of taxation applicable to Companies, but the distribution of profits to members are Tax free in the hands of the recipients. However, such distributions do attract secondary Tax on Companies.

Some of the advantages are the following:

 Shareholders are not liable for the debts of the Company and also enjoy the benefit of continuity;

• A single person may establish a Private Company;
• Shareholding is freely and easily transferable;

Some of the disadvantages are:

x The number of Shareholders in a Private Company is limited to fifty;

x Management is more complex as a result of the distinction between Directors and Shareholders, as well as statutory requirements;

x Audit requirements exist;

x Directors may be personally liable for debt of the Company in the event of reckless and/or negligent trading;

It has to be noted that the Companies Act is being completely overhauled and it is anticipated that the entire Companies and Close Corporations Acts will be replaced in 2009. The new Act will usher in significant changes to Companies and Close Corporations.

In the meantime, amendments to the Companies and Close Corporations Acts were promulgated by the Corporate Laws Amendment Act, number 24 of 2006 and will come into effect on a date to be proclaimed. Upon this occurrence, the most relevant aspects of this Act will be communicated to RMI 4 Law members.

In the next issue, we will focus our attention to the Business Trust as a form of enterprise.

RMI 4 Law members enjoy the benefit of access to legal advice by practising attorneys, standard legal documentation and representation in legal matters.

You can also be a member. To join, contact RMI 4 Law at 0861 668 677.

Automotive greetings from RMI 4 Law.

• Lede word gearresteer bloot weens die feit dat die lid se beweerde “houding” nie die Regsbeampte aanstaan nie;
• Waar lede hulleself verdedig of verset teen misdaad word die slagoffer saam met die misdadiger gearresteer;
• Indien ‘n klaer wie ‘n saak aanmeld Afrikaanssprekend is, word die klaer gearresteer; en
• Wanneer familielede navraag doen na die status van gearresteerdes en omgekrap raak oor swak behandeling deur die owerhede, word hulle gearresteer vir sogenaamde “inmenging met die ondersoek”.

Dit is opvallend dat hierdie arrestasies veral saans en gedurende naweke plaasvind.  In sekere gevalle verneem ons van die familie en vriende van die gearresteerdes dat daar op ‘n stadium ‘n aanduiding aan hulle verskaf word dat die persoon wel vrygelaat sal word teen betaling van ‘n buitensporige bedrag geld.  In ander gevalle weier die owerhede volstrek om iemand, wie vir ‘n onbenullige misdryf gearresteer is, met ‘n waarskuwing om in die hof te verskyn of op stasieborg vry te laat hangende die eerste hofverskyning die volgende dag, net om na ‘n periode van aanhouding die persoon in elk geval vry te laat. In terme van geldende wetgewing, is geregsdienaars verplig om op aanvraag hulself te identifiseer, maar kry ons gevalle waar die betrokke beamptes fiktiewe name aan die prokureurs verskaf, wetend dat onregmatige arrestasie vir hulle persoonlike nagevolge mag inhou. Lede vertel ons dat die aanvanklik ongenaakbare houding van die owerhede spoedig meer gemoedelik raak sodra die prokureur kontak bewerkstellig en dit duidelik word dat die lid selfs na-ure toegang tot regsverteenwoordiging geniet.

Hier is ‘n paar wenke wat dalk handig te pas mag kom:

1. Probeer kalm bly en verhoed te alle tye dat emosies eskaleer;
2. Wees beslis, maar altyd hoflik, indien jou regte aangetas word;
3. Moet onder geen omstandighede omkoopgeld aanbied of die indruk skep dat omkoopgeld aangebied sal word nie;
4. Maak so spoedig moontlik kontak met ‘n familielid of vriend wie kan dien as tussenganger na die prokureur wanneer kommunikasie middele van die gearresteerde weggeneem word;
5. Vermy na-ure kontak met die owerhede, indien wettig moontlik; en
6. Hou altyd jou Solreg lidmaatskap kaart waarop jou lidnommer en die regsbystand telefoon nommer verskyn byderhand.

Te oordeel aan die frekwensie waarmee hierdie gevalle onder ons ledetal plaasvind, wil dit voorkom asof dit wyd verspreid en baie meer gereeld gebeur as wat mens sou vermoed.  Ons stel belang om meer uitgebreide statistieke oor hierdie tendens te versamel en indien u of enige iemand wat u ken ‘n slagoffer hiervan of soortgelyke optrede was, word ‘n uitnodiging gerig om u verhale met ons te deel, ook indien u sou verkies om dit anoniem te doen.  Vir hierdie doel klik net op die blog ikoon op www.legalex.co.za of stuur ‘n e-pos na info@legalex.co.za of ‘n faks aan   0861 92 10 20.

Solreg is ‘n bykomstige ondersteunende produk, met ‘n spesiale verlaagde premie van R70 p/m eksklusief aan lede van Solidariteit, waarvoor apart aansoek gedoen moet word deur eenvoudig ‘n e-pos te stuur aan info@legalex.co.za of 0861 10 20 92 te skakel.  Dit is en bly ons trots om 24 uur ‘n dag, 365 dae ‘n jaar aan ons lede toegang tot regsadvies en regsverteenwoordiging vir siviele en kriminele sake te verskaf.

Solreg Groete.

W. Barnard

Direkteur

With the downturn in the global economy, being only one on many challenges, receiving payment from your debtors has become a frustrating task, often leading to costly and time consuming legal process. Unfortunately there is no magic spell to invoke to make all your debtors pay as and when they should. However, using certain techniques can be just as effective.

The Right of Retention or a lien, if used wisely, is an extremely powerful tool which can legally be used to help ensure prompt payment.

In order to explain this concept we will use the example of a client who delivers a vehicle to a local workshop, in order to have the vehicle serviced or repaired. However when the client returns to collect his or her vehicle suddenly there is a problem with making the payment and/or making full payment. The simple solution and to some extent the logical solution is to retain possession of the vehicle until the client has paid the full outstanding invoice. But is this legal and if so, how does a business manage its legal risk?

There are no guarantees that a client will make payment, even if the vehicle is retained, and in most instances the terms and conditions on the Job-Card will, to a large extent, govern the relationship between the business and its customer. It cannot be over-emphasised how important these terms and conditions are to the contractual relationship between the parties.

There are primarily two kinds of Retention Rights namely:

(i) Special retention, which is the right to retain property, in terms of contract or agreement, until the person or entity, holding the property, has been compensated for the labour or financial expenditure to such property.

(ii) General retention is the right to withhold or detain the property of another, in respect of a debt, which is due by the owner of such property to the person who has the custody thereof.

From these definitions it becomes clear that the primary requirement, to exercise this right, is possession of the object and more specifically lawful possession, being the manner in which possession was obtained. In most instances possession is established by way of contract or agreement between the parties. A lien will not come into existence if possession of the object was obtained in an unlawful manner.

It should be remembered that the individual that elects to rely on this right has the obligation to prove how the possession of the object was obtained and that it was obtained lawfully. Loss of possession extinguishes the right or destroys the lien and recovery of the possession once lost will not revive the right.

Whilst there are a wide variety of liens, the lien created in our example would arguably be described as a “debtor and creditor” lien. This type of lien is dependent upon a debtor-creditor relationship between the parties. It is for this reason that this type of lien is only enforceable as between the parties to the agreement.

Once the debt and/or account has been paid in full the retention right falls away, through operation of law, and the possessor needs to make the property available  to the owner thereof. This process becomes a little more complicated if there are two interested parties in the vehicle, for example the alleged owner and a banking institution. The retention right can be exercised against a banking institution, in specific circumstances.

In next months issue we will continue the above discussion and further explore the legality of Storage Fees.

Contributed by: Wesley Watson LLB (UNISA), Barnard Incorporated Attorneys

An employer may have all the reasons in the world to take action against and even dismiss an employee but if the procedure was unfair or flawed the dismissal can be overturned or an employee may succeed against an employer in the CCMA for an award for unfair dismissal.

This is a discussion of fair procedure :

There are no strict prescriptions of what constitutes fair procedure but procedure should be deemed fair if the employer, prior to taking any disciplinary action against the employee, lodges an investigation to determine whether there are grounds for disciplinary steps.  Investigations can vary from something as simple as observing an employee to something as complicated as a forensic audit.

After the investigation the employee should be handed a notice of suspension as well as a notice to attend a disciplinary hearing.  The notice to attend a disciplinary hearing must be in a clear language and must state a date, a time and a place where the hearing will be held, sufficient details of the charges against the employee should be given to enable the employee to understand fully and clearly all charges levied against him and to afford him or her the opportunity to properly prepare for his or her hearing.

The employee must be awarded sufficient time to prepare for the hearing.  Sufficient time will vary depending on the nature and complexity of the charges but should not be less than 2 (two) to 3 (three) days.  The notice should further state that the employee is entitled to be assisted by a trade union representative or a fellow employee.

The disciplinary enquiry should be chaired by a person who can objectively make a ruling and where relevant this person should preferably be independent.

At the hearing the charges must be put to the employee, and evidence should be lead regarding all the charges.  The employee should then be given the opportunity to cross examine the witnesses of the employer and to call his own witnesses to testify.

The hearing should be minuted in detail and the finding of the chairperson should be communicated to the employee in writing after the hearing.

Should the employee be found guilty he can be given a warning, a final warning or be dismissed depending on the degree of seriousness of the offence.

HS Clarkson

www.legalex.co.za

The traffic/metro Police in certain areas will set up “random” road blocks, usually in affluent areas, feed your details or registration number into a computer and threaten to or actually arrest you on the spot for outstanding fines or warrants.

To avoid placing yourself in a position where you are at a disadvantage, always make certain that you carry your driver’s licence with you.

For any arrest to be lawful the following is required:

1.         The arresting officer must be in possession of the original Warrant of Arrest. A copy of the warrant or the fact that “the computer says there is an outstanding warrant” is not acceptable. Insist on seeing the original warrant.

2.         The original summons had to be served on you personally. Ask to see the Return of Service or proof of registered post. If this can not be produced the Warrant of Arrest can not be valid. Insist on seeing the proof that you personally received the summons. Insist on seeing the document with your signature as proof of service.

3.         If the person attempting to arrest you persists, explain to him that on the basis of the above the arrest is illegal and unlawful and refuse to go. If they still won’t let you go explain that you will press charges for illegal arrest and sue for damages.

4.         Make certain to get the name of the arresting officer and details of his or her unit.

5.         Try to record (most cellular phones have this facility) or keep a record of everything that happened or was said.

6.         On your release, go to your nearest SAPS office and lay criminal charges against the arresting law body and the arresting official in his personal capacity.

7.         Contact your attorney immediately in respect of a civil claim.

Members of LegalX can simply phone the 24/7 legal advice line and get the attorney on duty to speak to the arresting official. If you make it clear that you are not a soft target you will more often than not be left alone. Don’t delay, join LegalX today before you become a victim of government roguery.

If a will is badly drawn or if it does not comply with the statutory requirements the will can be invalid or partly invalid and the testator’s last wishes maybe ignored or partly ignored in favour of the law of  intestate succession.  In the light of the above it thus important for members to be informed about the legalities surrounding the making of a will, to assist them in exercising their freedom of testation and to avoid any unwanted results in terms of the law of intestate succession.

In terms of the Wills Act, Act number 7 of 1953 (as amended) the following is required to execute valid will:

1.         The will must be signed by the testator in presence of two witnesses on the last page and each and every other page there of.

2.         Both witnesses in the presence of each other and the Executor must sign the will on the last page and every other page there of.

In the next issues we will address these concepts to remove some of the fear and trepidation associated with them. We all need to know that as credit consumers we have more rights now then in the past.

What is a Credit Bureau?

In essence Credit Bureaux are private companies that store, process and evaluate financial data collected from third parties. A private individual may not operate as a Credit Bureau. The information collected is, in its filtered and evaluated form, made available to various credit providers, for example banking institutions, in order to prevent over-indebtedness and the granting of reckless credit.

In other words the credit information, held by the Credit Bureaux, is used to determine your personal credit status and credit risk profile. This snapshot of your credit history is provided to a Credit Provider whenever it wants to do business with you.

There are a number of registered Credit Bureaux in South Africa are defined by the type of data they collect or by the credit industry they service. The two most common, dealing primarily with private individuals, are TransUnion (www.transunion.co.za) and Experian (www.experian.co.za). The credit data they hold is in electronic form and is known as a Credit Report.

Who is listed with a Credit Bureau?

Every private individual being credit active, will already be listed with the one of the Credit Bureaux. This information held in a Credit Report is regulated by Section 70(1) of the National Credit Act and can include a person’s credit history, assets, debts, patterns of payment, and default information.

However, just because you have a file with Credit Bureaux doesn’t mean that it’s all bad news. A Credit Bureau is obligated to only publish true and correct information about your credit history but errors do occur. Whenever possible update your information, which should be done at least once a year. If you find anything in your Credit Report that is incorrect you have the right to challenge such information and have your report corrected.

How does the Credit Bureau help me?

We all need to exercise responsible credit management, in fact TransUnion have taken active steps to educate consumers through Consumer Education Programmes in partnership with the Credit Bureau Association (CBA).

But sometimes life happens, errors occur and suddenly a debit order is being returned as unpaid. At times like these your up-to-date information stored with the Credit Bureaux comes in handy as your Credit Provider is able to find and contact you without delay to inform you of the error. This will prevent unnecessary legal steps being taken against you and legal costs being billed against you.

How do I find my Credit Profile?

The best place to start is to hit the internet. As most Credit Bureaux exchange information with each other and in terms of Section 70(2)(a) of the National Credit Act a Credit Bureau is obligated to accept and file information received from a Credit Provider, any update to your personal information will eventually filter its way to the other Credit Bureaux.

Draw your credit profile. This is not a totally free service however a Credit Bureau will supply you with one free printout of you Credit Record each year and/or per twelve month cycle. Once you have received your report update your personal information. In next months issue we will address the steps to be followed if you find you have been “Black-Listed”.

The above is an introduction to the concept of Credit Bureaux. It is recommended that you consult your attorney before making any decisions based on the information supplied. If you are an RMI4 Law member you can contact the legal assistance line for further information on the topic discussed on 0861 668 677. Contribution by: Wesley Watson LLB (UNISA), Barnard Incorporated Attorneys.

Later that day you receive a disturbing telephone call. Your finance was declined as a result of a “Black- Listing” on your credit record. What should you do now? Having a negative credit listing on your credit record may have serious repercussions and needs to be accurately addressed and dealt with, as soon as possible.

STEP ONE: KNOWLEDGE IS POWER

It is important to hit the ground running, so as soon as possible, get a copy of your credit profile. Only once you know the information contained therein can you find out why you’ve been “Black-Listed”. This information will also help you determine what your next step or process is to be followed in order to correct and/or rectify the negative listing on your profile.

Your credit profile can be found by contacting one of the Credit Bureaus who will assist you with one free printout/copy of your credit profile each twelve month cycle. In order to obtain this free credit profile you will be requested to supply personal updated information which in turn keeps their database accurate. Being able to apply for your credit profile on the internet makes the process even easer.

STEP TWO: INTERPRETATION AND EVALUATION

Credit profile in hand, the next step is to correctly interpret and evaluate the information contained therein. The credit bureau can also offer a helping hand in this regard. Contact them telephonically and a helpful call-centre agent will interpret your credit profile and take you through it step by step.

Now with the knowledge of how the negative listing was caused, you are able to determine if it was as a result of simply incorrect information on your profile, which a consumer is entitled to dispute and challenge if his or her credit record displays such incorrect information. Here, once again the credit bureau will assist with the process of lodging a dispute with their offices.

If there is default listing on your profile, not being a Judgment, as discussed hereunder, you need to contact the entity that listed you, in order to resolve the reason for the default data and listing.

STEP THREE: GETTING HELP

If your credit record shows a Court Order or Judgment on your name, the process is somewhat more complicated and costly to rectify. In this specific instance the attention of an Attorney will be required, who should be consulted as soon as possible, after having become aware of the fact that a Judgment has been taken against you. In most instances it would require an Application to Court for the Rescission of the Judgment from your name. Any unnecessary and unreasonable delay in the bringing of such Application to Court may have a negative impact and/or delay the removal of the judgment from your credit record. Your Attorney will be in a position to advise you as to the process of rectifying your profile. The costs involved with this type of legal work can vary.

STEP FOUR: THE 20 DAY WAIT

After having the judgment reversed, such fact, which amounts to a material change to your credit profile, needs to be communicated to the Credit Bureau. Upon receipt of this information, the Credit Bureau is obligated to confirm and verify the accuracy thereof and accordingly change your profile. However this verification process is time consuming and for this reason, changes to your profile will reflect only twenty business days after the Credit Bureau was duly informed of the status of the judgment taken against you.

After having resolved the blemish on your credit record, you have theoretically a clean and clear credit record. You can now finally revisit the dealership with this knowledge and purchase your dream car.

RMI4Law members can contact the legal advice and assistance line for any further information regarding the topic discussed, on 0861 668 677. Contributed by: Wesley Watson LLB (UNISA), Barnard Incorporated Attorneys