IN THIS ISSUE:
Hello Talking Law Readers,
Welcome to the first issue of Talking Law by LegalWise.
Talking law by LegalWise will keep you updated on current legal issues that affect you and the rest of our country.
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The Talking Law Team
Alive Status verification self-help service.
Are you officially alive or have you been declared dead? On the 23rd March 2009, the department of Home Affairs announced their new self-help service whereby South Africans can check their status.
The purpose of this service is to assist us to check our status to ensure that we have not been fraudulently declared dead on the population register. The department has introduced a self-help service to make it easier for us to interact with the department without having to visit the department’s offices.
Self-help service (internet)
- Log onto the department’s website: www.dha.gov.za
- Click on the ‘check your status’ link.
- Enter your identity number
- Click the verify button
- The results will show if you are alive or deceased.
Self-help service (SMS)
- Type the letter L followed with your identity number to 32551.
- A reply SMS will then be sent back confirming status as either Alive or Deceased.
- Each SMS costs R1.00.
Self-help service (call centre)
- Call the department’s call centre on 0800 6011 90.
Should the status declare a person dead whilst they’re alive, a person must then take an affidavit obtained from a police station to their local department of home affairs.
The department will, on submission of an affidavit as proof of their live status, ask the complainant to fill in a form and take full set of fingerprints to investigate how the person was declared dead on the system and will report back within a few weeks to that person on the outcome of its investigation.
Standard Bank in contravention of NCA.
Standard Bank has admitted that it has contravened the National Credit Act by automatically increasing limits on some of its clients' credit cards. Sections 60 to 66 of the National Credit Act explains the procedures that need to be followed when a consumer applies for credit and also states that the credit provider must conduct an assessment before granting a credit to the consumer. Clients complained that their limits on their credit card facilities had risen without users requesting the increase. The National Credit Act requires that an affordability assessment be conducted if a consumer wants to increase a credit limit.
The National Credit Act states that credit limits may only be increased in three instances:
- a consumer can approach the credit provider for an increase and obtains one after meeting the requirements of the affordability assessment;
- a credit provider may approach a consumer about increasing a limit on an existing account - but the consumer must agree to this in writing and the affordability assessment must be done;
- a consumer applies for an account for the first time, he/she can opt to have the limit increased automatically, but only once a year.
Standard Bank promised to reverse all increased limits on those accounts.
Divorce proceedings can be reported by the media.
In the case of Johncom Media Investments Limited v Mandel & others, Case CCT 08/08 [2009] ZACC 5, the court held that media is allowed to report on details of divorce proceedings, provided children are not identified.
This was after Johncom Media Investments Limited made an application to court that section 12 of the Divorce Act 79 of 1970 was overly broad in its ban on reporting of information coming out of divorce proceedings.
Section 12 states that no person shall make known in public or publish any information of the particulars of a divorce action or any information which comes to light in the course of such an action, except publishing the names of the parties to a divorce action or the judgment or the court order.
This was after a newspaper tried to publish a story on a man who was suing his ex wife for damages, when he found out that a son they had during their marriage was not his biological child. He also wanted the divorce agreement changed.
The court held that details of divorces could be published, but a child’s identity had to be protected, unless exceptional circumstances exist. An authorisation should be granted by the court in those circumstances. The publication of the identity of or any information that may reveal the identity of child in any divorce proceedings before any court is prohibited.
Company Directors Protected.
A new defence under South Africa’s company laws will give directors more protection for bad decisions taken in certain circumstances. The “business judgment” rule will give directors additional protection from the courts unless it is clear that they are guilty of fraud or misappropriation of company funds, under the Companies Act.
The rule, which has its origins in the US, recognises that directors are not ensurers of corporate success and aims to ensure that liability will not arise merely from a bad decision.
New corporate governance principles had tightened up remuneration polices for non-executive directors, making it harder to attract the right quality of people to sit on boards. Directors also faced enormous exposure for personal liability if they did not do their jobs properly.
The business judgment rule first floated in the first and second King reports in 1994 and 2001, when it was recommended that an investigation be undertaken to determine the necessity for the rule to become law. The provisions of the rule are also incorporated in the third King report in a more substantive form.
However, the Companies Act provides the statutory basis for the rule providing protection for those directors who made business judgments in good faith and for a proper purpose. The intention is to hold directors to a higher standard of care. Experts believe that this is good news for qualified people to accept the position of nonexecutive director coupled with the hefty responsibilities in return for remuneration that is not linked to the company’s share price or performance.
In effect, the business judgment rule would create a strong presumption in favour of the board of directors, freeing its members from possible liability for decisions that resulted in harm to the organisation.
The Companies Act provides that a director will have satisfied his or her duties if they took reasonably diligent steps to become informed about the matter, has no material financial interest in it or had properly disclosed such interest, and made a decision rationally in the belief that it was in the best interests of the company.
Stamp Duties Act stamped out.
The Stamp Duties Act was abolished on the 1st of April 2009. Stamp duty is a tax charged on legal documents and has been levied in South Africa since 1911.
The SA Revenue Service said the abolition of the Stamp Duty Act forms part of efforts to reduce the administrative burden on taxpayers and to simplify the tax system.
The scrapping of the act follows the shape down of the scope of stamp duties over the past few years, until the tax only needed to be paid on property leases of over five years. This is now done away with from April 1 2009. In the past, stamp duty of 0.5% of the property lease was payable.
The scrapping of the legislation is not retrospective and taxpayers remain liable for stamp duties due up to the end of March. The South African Revenue Service (SARS) has warned that any outstanding stamp duties must still be paid.
Holders of existing stocks of revenue stamps have until the end of October 2010 to claim a refund for the stamps from a SARS branch.
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