Legal Aid SA answers our readers’ questions

Legal Aid SA, which provides legal representation and advice to those who cannot afford it, offered to answer the questions sent in by you, our readers. The Tatler received a good response and your questions covered a wide range of legal issues. Today, in the first of a series, we publish some of those questions along with Legal Aid SA’s answers.

Q: Please advise on the likely legal costs that would be incurred by laying a charge of (willfully reckless) negligent driving against someone who almost knocked over my young son, as witnessed by myself and another adult.

A: There are no costs involved in laying a charge at the police station for reckless and negligent driving. The client is the complainant. The investigating officer will investigate the matter and transfer the docket to the state prosecutor at court to prosecute the offender.

No monies are payable for the services of the SAPS or clerk of court, including the prosecutor. In a criminal case, the victim does not need an attorney, as the prosecutor will be assisting them.

Q: How does one go about getting a duplicate divorce decree or acceptable substitute document if you’ve lost your original and have no details of the divorce? My husband got married to his first wife at a very young age (shotgun wedding), but the marriage did not last, and, after separating from his wife and remaining separated for at least two to three years, they got divorced. This was in the mid- to late 1990s. She subsequently got married at least two more times, while my husband and I got married five years ago. Unfortunately, both my husband and his first wife have lost their original divorce decrees. We were able to get married in church, based on a Home Affairs printout that showed his status as divorced at the time of our marriage, and a police affidavit, which the pastor accepted.

We have tried everything to find the original divorce decree, including contacting the person who became the ex-wife’s husband, but to no avail. Neither can remember when they got divorced — not even the year, let alone the month or day because they were separated for such a long time beforehand. So, this makes it almost impossible to go about getting a duplicate from the archives. To top it all, we learned that the archives had a huge fire in the early 2000s that destroyed thousands of documents. I need to prove that he is formally divorced, for several legal matters.

A: If the records at the Department of Home Affairs reflect that the client’s husband is divorced, there should be no need for him to provide a decree of divorce. In the absence of any information about the details of the divorce, the court can be approached to order the Department of Home Affairs to issue another decree of divorce. This is the only avenue available since the archive was destroyed by fire.

Q: Is it viable to lay a charge of harassment against a neighbour who refuses to acknowledge that her dogs bark incessantly when she goes out. Law enforcement have been unable to assist as they visit her when she is home and the dogs are quiet.

A:Thesedisturbancesfall under our law of (noise) nuisance. The legal principle is that one is allowed to have free use and enjoyment of his/her property, provided that in doing so, one does not infringe on the rights of his/her neighbour. The first step will be to take the matter up with your neighbour. If this fails, you should address a written complaint to your local authority.

The local authorities have noise control units. The officials are empowered to take steps if they find that a problem exists. For example, they can serve an instruction to reduce the noise and/or issue a fine. If this fails, you have the right to apply to court for an interdict to prevent your neighbour from causing the specific noise, or sue your neighbour for damages suffered as a result of excessive noise, under the Environmental Conservation Act. The onus of proof will be on the client to prove that the noise has occurred over a long period of time. If the interdict is granted but your neighbour persists with the unlawful actions, you can apply to court for a contempt of court order. If the order is granted, then the court may impose a fine, or imprisonment in serious cases. Penalties for violating noise by-laws are laid out in Section 9 of the Noise Control Regulations.

Q: Moving into a new property as my husband and I go into our retirement was meant to be a happy occasion but it’s been a nightmare as we waste precious time on a host of unforeseen defects. After we bought the property, the seller, without consulting us removed the Smeg gas stove, (which we saw in the kitchen on viewing the
R6m property, and which was in the property brochure) and replaced it with an 11-year-old, broken, dirty Bosch gas stove. The offer to purchase states that the “seller reserves the right to replace the current stove with something similar, or leave existing”. The agent verbally stated that the replacement would be a new Bosch gas stove. I requested from the agent, photos and a model number of the replacement stove so that I could be happy with the look of it. She totally ignored my several requests.

Furthermore, there are many other non-disclosed faults with the property which we only came across once we moved in, and electricity, gas and plumbing compliancy certificates are all not compliant. The Electrical Approved Inspection Authority Southern Africa (EAIASA) said that the electrical compliance certificate should have never been used to get this property through transfer.

A: The seller is in breach of the offer to purchase because it was a clause in the written agreement that the Smeg gas stove will be replaced by “something similar, or leave existing”. The Bosch gas stove is a patent defect of the agreement.

In terms of the Electrical Installation Regulations which came into effect in 2009 under the Occupational Health and Safety Act (No. 85 of 1993), it is compulsory to be in possession of a valid Electrical Certificate of Compliance (ECOC) when selling a home.

A fraud case can be opened. With regard to other defects not visible during inspection, the purchaser can ask the seller to rectify them, failing which you can apply to court for specific performance, meaning asking the court to compel the seller to remedy all the defects.

* For more information call Legal Aid SA’s toll-free number 0800 110 110, weekdays from 7am to 7pm, or visit www.legal-aid.co.za