KNOWtheLAW
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The superior newsletter from Clientèle Legal
Issue No. 5 2013
CONTENTS
Alphonso Goliath
Client
DO YOU HAVE A JOB?
YOU NEED A LAWYER!
S
outh Africa is in the grip of a harsh economic
climate and unemployment levels are worrying.
Having a job – and keeping it – is of vital importance,
explains Eben Smit from Clientèle Legal. ‘More than ever,
we are seeing clients join Clientèle Legal because they
understand how important it is to protect your job. This
issue affects everyone; from casual labourers to Senior
Managers and specialists.’
• Have a job?
You need a lawyer!
1
• FAQs
2
• Lighter Side
2
• Know Your Rights
During a roadblock
3
• Superior Legal Services
in Action
4
escalated the matter to the CCMA. I contacted Clientèle Legal,
who appointed a specialist attorney. I was amazed with their
legal knowledge and level of professionalism. The matter was
settled swiftly and out of court.’
Eben Smit explains why it is so important to have a lawyer if you
have a job. ‘Labour contracts, unfair dismissals, CCMA referrals
or discrimination in the workplace, these are all issues which
could affect any of us. You need legal guidance.’ Eben Smit says
Alphonso Goliath is a member of Clientèle Legal and a former people are under a lot of emotional and financial pressure during
magistrate. Here, he shares with us how Clientèle Legal assisted these times and need an objective and expert hand guiding
him with his personal labour dispute.
them. Remember, you have rights. Stay calm and keep a paper
‘I used to be a magistrate, I know of the tragic consequences trail where possible. If you want to take an unfair dismissal
when people appear in court without representation or with matter to the CCMA, it is important to know that you should
legal counsel they cannot afford. People end up losing valuable do the referral within 30 days of the dismissal. Be prepared
hours and months out of their lives. I have also seen people for a lengthy process, which might include a conciliation and
lose their life savings fighting a battle they could have avoided,’ arbitration phase. ‘These proceedings can often be brutal,’
Goliath says. ‘Even with my legal background, I knew I needed Smit warns, ‘but don’t be bullied into signing anything you are
assistance when I had a dispute with my employer regarding uncomfortable with. When you feel under pressure to make a
the terms of our contract. Internal arbitration failed, so I decision, ask for an opportunity to call your lawyer.’
Lawyer’s Tip
‘Don’t be bullied into signing anything
you’re not comfortable with. Have it
checked out first.’
Eben Smit – Legal Advisor, Clientèle Legal. LLB, Dip. Insolvency Law & Administration.
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Your Questions
Email your questions to:
[email protected]
Q
Answered
Are customary
marriages ‘legal’?
process whereby the wife is handed over to the husband’s family
by her family.
It is not necessary for the marriage to be registered with Home
Affairs for it to be legally binding, but it is recommended, as the
certificate will be needed when a spouse dies, one wants to file
for divorce or when you need to prove the existence of a marriage.
Q
What is an Emolument
Attachment Order?
Yes, they are. The Recognition of Customary Marriages
Act (Act 120 of 1998) has ensured that certain
traditional marriages are given legal recognition
in terms of South African law. There are three
requirements that must be complied with for the marriage to be
valid. These are:
i. The partners must be 18 years and above;
ii. The parties must consent to be married to each other; and
iii. The marriage must be entered into and celebrated in terms of
African Customary law.
All customary marriages are automatically in community of
property unless an Ante Nuptial Contract is signed. The Ante
Nuptial Contract has to be signed after Lobola has been paid but
before the marriage handing over process is celebrated.
It is important to note that the payment of lobola alone will not
lead to a recognized marriage. In some customs this is known as
“Ukuvuma abakhwenyane; Ho Gorosa ngwetsi”; Mahlabiso; or
Llavelani haleni.’ This means that partners have to celebrate the
marriage, in accordance with their custom. The celebration is the
THE LIGHTER SIDE
Heard in Court
LAWYER: What was the first thing your
husband said to you that morning?
WITNESS: He said, “Where am I, Tumi?”
LAWYER: And why did that upset you?
WITNESS: My name is Lebo.
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An EAO (Emolument Attachment Order) is sometimes
incorrectly referred to as a ‘Garnishee Order.’ It is a
court order instructing your employer to deduct an
amount of money from your salary to pay a creditor to
satisfy a judgment against you. The judgment is recorded on
the consumer’s credit record and remains there for a period of
5 years, so it is important to know your rights, which include:
- You, alternatively the Court, must have consented to or
authorised the order.
- You may request a copy of the order from your employer.
- You may have the judgment rescinded once full payment has
been made.
KNOW YOUR RIGHTS
T
Know your rights
during a roadblock!
o most people, roadblocks are a necessary, but
inconvenient reality. They can also escalate
to becoming a nightmare quickly if you do not
know your rights. Horror stories abound about people
being arrested in the middle of the night for a small
outstanding traffic fine. Even worse, women can become
very susceptible to imposters or unscrupulous officers
who abuse the vulnerability of the situation to extract
bribes or bully people.
So what are your rights during a roadblock? Can you be
arrested at a roadblock because of an unpaid fine? ‘Yes and
no’, says Phumi Xulu from Clientèle Legal. ‘Merely having an
outstanding fine is not enough reason to have you arrested.
However, should a warrant of arrest have been issued for that
fine because you haven’t paid, the metro police have the right
to detain you. In that case, you should definitely ask to see
the warrant and check that it is a legitimate original or a court
stamped copy of the warrant. But the unpaid fine in itself is not
enough grounds for arrest. If the police persist with the arrest
without the warrant or demand you pay the fine on the spot,
you should call your lawyer immediately, as this will constitute
an unlawful arrest. Police may also not hold your car to ransom
until someone with money shows up to pay all your outstanding
fines. Only fines that have a warrant attached have to be paid
immediately.’
Should you make any payments in a roadblock, ensure
that you receive a receipt containing the warrant number, case
number, police officer’s details, amount paid and your details.
Phumi Xulu explains that it becomes as important ‘what’ you
say at a roadblock as ‘how’ you say it. ‘You do have the right
to ask for the warrant or the police officer’s official certificate
of appointment, but demanding it in an aggressive way will
probably not get a good result. If the officer refuses to show
you his/her certificate, you should ask to speak to the roadblock
commander in a firm, but polite way. Remember that police have
the right to detain you if they feel your behaviour is sufficiently
obstructive or suspicious. It becomes a delicate situation. Tread
carefully. If you feel that your rights are being violated, call your
lawyer.’
Xulu says they are aware of blogs and internet articles
encouraging citizens to refuse answering any questions, but
advise against that. ‘Yes, you DO have the right to remain silent,
but we advise that you co-operate with reasonable requests. If
you refuse to answer questions at the roadblock, the officer may
ask you to accompany him/her to the police station to answer
questions at a later stage. You might have won a minor legal
battle, but what happens to your family while you are stuck in a
police office for hours trying to prove a point?’
Clientèle Legal also advises clients to be responsible citizens.
Pay your fines, keep your car in good condition and play by the
rules. However, if you feel your rights are being infringed upon,
call your lawyer. We are available to assist you, 24 hours a day.
• Traffic fines and notices must be served by hand or via
registered post. Ordinary mail is insufficient.
• If you receive a summons to appear in court for a traffic
offence, please ensure that you attend as a warrant of
arrest may be issued against you if you don’t.
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SUPERIOR LEGAL SERVICES IN ACTION
Did you know?
Clientèle Legal
secured approximately
R950,000
for a client in a
‘My greatest pride is in knowing that I make a difference. I’m
helping to make legal advice affordable to all South Africans.’
labour matter.
Nadeem Mahomed, Attorney
Clientèle Legal recently secured a record amount for a *client
in a labour matter – and the client got his job back!
Clientèle Legal policy covered all the legal fees due, which
amounted to approximately R50,000.
Labour specialist, Nadeem Mahomed (of Nadeem Mahomed
Attorneys) was appointed by Clientèle Legal. ‘The matter
involved the unfair dismissal of our client*. We fought it all the
way to the Labour Court. We got a reversal of the order plus
R950,000 for our client!’ Mahomed says proudly, but adds
that his biggest achievement is in fighting for the laymen. The
‘For too long, money has determined who wins in court and
who doesn’t. Our purpose is to help ordinary South Africans
defend themselves against the big corporates and parastatals.
Clientèle Legal is an important tool of justice for South Africans.’
Well done to Nadeem!
*The client’s name is withheld for privacy purposes.
Clientèle Legal contact info
Tel: 0860 004 529 • Fax: 011 320 3133 • Email: [email protected] • Website: www.clientelelegal.co.za • Mobisite: www.clientelelegal.mobi
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Clientèle Legal is a division of Clientèle General Insurance Limited, an authorised Financial Services Provider
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