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Legal Advice
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In this section I have placed the questions that I have received from some members of the public, as well as my answers to them, on the site. I certainly don't guarantee an answer to every question and of course the nature of any business is that we are the answer is suited to a paid consultation, then the question is unlikely to be dealt with here. I've tried to focus on some of the more difficult issues when it comes to whether or not is viable to hire an attorney as well as some of the more simple queries where people can come if they choose, it into the matter themselves. It goes without saying that you are referred to the terms and conditions of the use of this website in so far as the answers to any of these questions are concerned. If I have stressed the fact that each and every matter is different 10 times, I'll do so another time now! This is not legal advice that is necessarily relevant to your particular facts, circumstances and matter.
Michael
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Maintenance - father has no income / no job
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Motor accident - not to blame/but no insurance
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Divorce - need a copy of old divorce order
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How much maintenance is enough?
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Maintenance - father has no income / no job
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My husband and I got divorced and I am now struggling to get maintenance from him. I have been back and forth to the courts and tried to get the help of the staff there, but to no avail, and I am really desperately short of money. I don't know where to turn to, and to make things worse, whenever my former husband is summoned to court, we discover that he is unemployed yet again! He has gone through one job after another and I don't know what to do. Please help!
We get an e-mail to like this every week, and as an attorney one has to be very careful in answering this question generally and online. The fact of the matter is, I can't possibly advise anybody, without going into the merits of their case, which will obviously take time and require payment, on what to do in each specific matter. It seems like an easy way out, but the reality is that one has to be even more careful with your advice when the situation looks bleak, and it generally is in matters like this, because its much easier to say you have a case than to say, without fully exploring every possibility, "Don't waste your time." That does not mean one should simply give up and accept the situation, but it goes mean that either you are going to have to pay an attorney to go into the merits of your case, which is difficult when you don't have the money in the first place, or, you are going to have to persist with the officials at the court who are after all paid by all of us, as taxpayers, to provide this service. If you can afford it, I would always recommend that you approach an attorney first, as an attorney will be able to pay the attention and spend the extra time on a matter which is required to get the best result. The other reality however, is that you cannot get money out of a rock, and they are times in law, and far too often sadly in matters such as these, when that expression, as well as the expression throwing good money after bad, are true. If you really don't have the money for an attorney, or cannot obtain a loan to pay for the time of a dedicated professional to represent you, then you will need to rely on the services of the state. A man will have to show a court that he is trying to obtain employment, but if he genuinely can't actually obtain and keep a job, then you are going to struggle to get the money from him. Of course, the duty of support, and that is the legal concept that were talking about here, does not say that you can only recover money from the father of the child. There is nothing to stop you proceeding against the parents of the father and although such cases are unusual, it is provided for in our law.
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Motor accident - not to blame/but no insurance
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I was recently the involved in an accident, for which I was not to blame, and the other party promised me that they would pay for the damages to my car. I have now found that they are avoiding my calls, trying to delay this matter and I'm not sure what to do, as I cannot afford to repair the motor vehicle myself.
This is an extremely common question, and the reality is that if you choose to drive in South Africa with out insurance for your motor vehicle then you are going to have to very carefully select the people with whom you have accidents! If you have the misfortune of having an accident with somebody who does not have insurance, then you are going to have to hope that the person has sufficient assets or money to pay for the cost of the damages to your car. That of course, is unlikely, as it is extremely rare that somebody who has selected not to have insurance, would be able to afford to pay for the repairs to your car. Obviously, we are aware that there are a very small minority of people out there who choose not to have insurance, or who have elected to self-insure, but you must face the reality that most people who do not have insurance have made their choice because they are short of funds. If the damage is less than R 7,000 you can of course proceed against them in your local Small Claims Court, but if it is more than that, your best advised to see an attorney. You are most unlikely to find any attorney who would be prepared to handle such a case on a contingency basis as the reality is very good that even if you obtain a judgment against the other party, you will either not recover the money from them because they will simply be unable to pay whatever the judgment debt is, or alternatively that they will pay in a small monthly instalments over many years. So, you better be ready to give the attorney a deposit and generally one would be looking at an amount between R3000 to R 5000, bearing in mind that if it does go the whole way to court, you're very unlikely to be able to do so with out spending at least R 10 000. The reality is, insurance may be expensive, but then you won't have to foot the bill when disaster strikes - and it does unfortunately.
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Divorce - need a copy of old divorce order
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I lost a copy of my divorce order. I now need a copy of that and I would like to find out how to go about getting another copy?
This is not an altogether rare question. Your best option is to hope that the attorney who handled your divorce has the file on hand, or can request it from his or her archives, noting that attorneys are entitled to destroy the contents of the files after a period of five years has elapsed. Unfortunately, the short answer is that it is much more expensive or time-consuming than one may think and depends on whether you prefer to do the job yourself, or to pay an attorney to find it. Remember, as always, when you require the services of an attorney you are paying for time and if you want to utilise an attorneys offices to obtain a copy of your divorce order, it is going to be quite costly. I remember my frustration, when acting as a candidate attorney many years ago, and dealing with a particular client who had stressed that she was very short of money and required the assistance of my principal for a maintenance matter, who then insisted that she did not have the time to go to court, to obtain a copy of her divorce order. It was quite a time-consuming process and essentially involves going to the court, finding out in which office the file is kept, and armed hopefully, with the court case number, preceding to that office, then requesting the file, making and paying for a copy to be made - usually with revenue stamps. Just driving to and from the local court is likely to take you 40 minutes and ultimately you will be very lucky if you can do the whole operation in 1.5 hours. It may of course take longer. The choice is yours - make the trip yourself and try your luck, or pay an attorney! You may well find that the attorney will send somebody from his office, on your behalf, and it is possible that the cost may not be too high.
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How much maintenance is enough?
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I am currently paying R400 a month maintenance for my child and the mother wants me to pay R1200 a month. I think that's too much, and I want to know how much I must pay?
This is a common question, which we receive with a number of different versions, but again it all boils down to the advice we have already given you and that is, how much you should be paying, or can expect to receive, depends very much on a number of factors including:
*the actual, reasonable costs of the child
*how much you earn
*how much the other parent earns
This information is generally in your possession, and if it's not, it can either be acquired before proceeding to court or tested in court, depending on what is in dispute. The actual reasonable costs of the child depend on a number of factors, and they include the background of the parents. By way of example, if neither the father or the mother finish school, and the child is not doing particularly well at school either, it's probably unreasonable to demand that maintenance include the child having a university education. Of course, like everything, it depends on the facts and circumstances of each and every case and that is why it is generally important to be assisted by an attorney practising in your area, with the procedure. You may not need to go to court, the matter may be settled by simply writing a letter to the other party, negotiating a settlement agreement and then making that agreement an order of court.
So, R400 may be far too much and it may also be far too little and that would really depend on what you earn, as, as you should know, R400 will cover very little these days and is highly likely that you are paying too little maintenance.
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