Davidson England Attorneys

18/08/2016

Chief Justice Mogoeng Mogoeng has urged lawyers and the legal profession to root out corrupt practices in the country and on the continent.

10/08/2016

WE ARE HIRING:

We are urgently looking to hire a professional, well adjusted Personal Assistant for Michael who has some 'legal typing experience'. Salary is negotiable depending on experience etcetera. Please email a brief CV to [email protected]

09/08/2016

Be careful about what you post it can have serious repercussions....

A 74-year-old Australian man was awarded $115,000 in damages caused by a libelous Facebook post about his business, and it's a good reminder that you can't just say anything on social media.Here's what happened.Kenneth Rothe, the man awarded the damages, owned two hotels, the Nirvana Village and Blu...

28/07/2016

De Broglio seems to have competition in America..

A lawyer known as the Texas Law Hawk has become an internet star through a series of bizarre ads.

03/03/2016

Labour: 'Gardening leave' ruling a first… What happens when someone resigns…

The Labour Court in Johannesburg has confirmed that so-called gardening leave – when an employee does not go to work while serving notice – forms part of SA law. In the case at hand, Vodacom won what its law firm describes as a ‘precedent setting’ battle against its former chief officer for consumer business, Godfrey Motsa, who resigned in December to join rival MTN as one of its top executives. Vodacom launched urgent proceedings, seeking to enforce the terms of Motsa’s contract, which included a six-month notice period and a restraint of trade for a further six months. Vodacom was successful, with the court confirming Motsa will spend six months on gardening leave until the expiry of his notice period in June 2016 and then may not work for MTN – or any similar competitor – for a further six months in terms of the restraint-of-trade clause. Vodacom’s lawyers reportedly said the decision sets a precedent in that the Labour Courts have not, until now, had the ‘opportunity to consider what impact, if any, a so-called ‘gardening leave’ provision may have on the enforceability of a restraint of trade’. The court found Motsa ‘failed to discharge the onus of proving that Vodacom had elected to waive its right to enforce his notice period in terms of his contract of employment’. It also found Motsa ‘had access to significant confidential and proprietary information and that Vodacom clearly had a proprietary interest worthy of protection’.

In other words. If you tender your resignation with Notice and your employer says you are excused from working out the notice period then you may not start working at a new job until your notice period is over.

16/12/2015

We wish everyone a fantastic holiday season and a happy new year! We'll see you on the 11th of January

02/12/2015

Common Law Marriage...does it apply?

Many People mistakenly believe that they are protected as ‘common law spouses’ but South African law does not broadly speaking recognise the concept of a ‘common law marriage’ unless it is specifically permissible in terms of your culture. This basically means that no amount of time spent living with another person will convert a cohabitation relationship into a marriage if your cultural background does not allow for common law marriages and if you have not complied with the necessary requirements in terms of the cultural traditions necessary for a common law marriage under that culture.
So, where does this leave things. Well, currently in SA there is only a limited legal protection afforded to partners in such relationships – in other words the law of partnership applies as it would in relation to a commercial or business transaction. Couples who live together have hardly any rights compared with married couples or civil partners, and mostly only discover this when their partner has died. As such, where the relationship ends as a result of death, a party may face dire consequences due to the fact that there was no prior agreement with regard to assets, maintenance etc. Marriage is regulated by specific laws that protect the individuals in the relationship. Cohabitation offers no such comfort.
The easiest way to resolve this problem would be to ensure that both parties are protected in the event of one partner dying is to draw up a will. Another way is to enter into a formal contract. A cohabitation agreement that will regulate what happens when the “partnership” dissolves by death, separation or both. In effect a “Pre-Nup” (to borrow American language) without the joyous celebration or pain and expense (depending on your involvement) associated with a formal wedding.
When a cohabitant dies without a valid will their partner has no right to inherit under the Intestate Succession Act no matter how long they have lived together. A cohabitant may not rely on the provisions of the Maintenance of Surviving Spouses Act to secure maintenance on the death of a partner. Furthermore, there is no obligation on cohabitants to maintain each other and they have no enforceable right to claim maintenance. In the event of there being no valid will, the beneficiaries are, in the first instance, a spouse or descendants or both. In the event of there being no spouse or descendants, the estate devolves upon other more distant members of the bloodline. If the surviving partner is not named in the will, he/she will be faced with the task of having to prove his/her specific contribution to the joint estate before entitlement will be for forthcoming. Proving actual contributions is often extremely difficult and expensive, especially when a partner has died.
In the case of one partner owning most of the assets and the joint home, the cohabitant can find himself (or herself) on the pavement without a thing – be it by death or the proverbial “boot” and he would have to engage an attorney to prove what he invested in the partnership over time. No guessing who makes the most money here!!!
The best way to prevent a difficult situation like this would be for couples to draft a written agreement, in which the rights and obligations of each party in the live-in relationship are clearly set out.
This agreement will work exactly like a contract and will be enforceable. The contents and nature of the agreement will depend on the needs, means and respective contributions of the parties. The parties may include any provision in the agreement that is not illegal, or against the morals of society or contrary to public policy.
The South African law on cohabitation may soon be codified by the draft Domestic Partnerships Bill that was published in January 2008. Until the Bill is adopted into legislation, however the status of cohabitants in South Africa will remain significantly different from spouses in a marriage and partners in a civil union.
Contact us for more information or for a “cohab agreement”. Remember, a written agreement is like an insurance policy, if you need to refer to it there is trouble brewing but it is always safer (and cheaper) to have it done upfront.

05/11/2015

Positioning of Cops while trapping:

The general opinion of motorists in South Africa is that it is unethical and should be illegal for traffic cops to hide behind bushes, trees and barriers while speed trapping motorists. Unfortunately there appears to be nothing illegal about “hidden” traffic officials in the National Road Traffic Act. There is no requirement that any speed trap must be visible and therefore traffic officers may hide if they wish to or if they are instructed to do so.
There is also nothing that prohibits speed traps from being set up on a downhill or uphill. In fact most speed traps are set up on a downhill slope because the speed limit is the speed limit, whether on an uphill, downhill or on a flat surface.
The only regulations about positioning while trapping speeding motorists is that the Speed Measuring Equipment used must be mounted on a firm and stable surface (a tripod), and there is no prescript as to where traffic officers must position themselves. However no speed measuring exercise may be mounted within 300m of the commencement of a particular speed limit.
Not only may traffic cops hide themselves but their vehicles too while trapping motorists. Traffic cops are also allowed to trap oncoming motorists on the opposite side of the road, and they may also cross the road to stop speeding motorists, or cross a barrier line even if while doing this places the traffic cop in a dangerous section of the road.
That being said, the actual officer who manned the camera must present himself at court to hand in the evidence and testify thereto to overcome the hearsay rule. This is often an insurmountable obstacle if you genuinely dispute that the contents of the fine.

09/10/2015

Congratulations to Cathryn Lötter who graduated today with a brand spanking new LLB!

18/09/2015

Know your rights at roadblocks:
First things first, according to South African Law uniformed South African Police Service members (SAPS) have the same powers as uniformed traffic officers or the Metropolitan police forces. * Reference to Police in this article will include the above.
When stopped at a roadblock you have the right to:
• Ask for the person’s police certificate of appointment which includes his picture, name, rank, force number and where he or she is stationed: Section 334 (2)(a) of the Criminal Procedure At 51 of 1977.
• If these details are not given, you can ask to see the roadblock commander or most senior officer on the scene.
• If you have any doubt about the authenticity of the roadblock, you can ask to be taken to the closest police station.
• If the roadblock is legal, you have the right to ask what its purpose is. But the person is not compelled to tell you if the reason is classified. Also the numbers of vehicles being stopped may indicate the status of the roadblock.
• You have the right to be treated with respect at all times and have the further right to get the details of any officer who has treated you unjustly.
• You must co-operate with all reasonable instructions, but you may question your position should you feel that a violation of your constitutional rights is occurring.
• You must at all times treat any officer with respect and the dignity attached to his rank and office, although you may be firm in upholding your legal rights.
• You must identify yourself as the driver of the vehicle and supply proof of your driving license.

Roadblocks and Unpaid Traffic fines:
While you are at a roadblock and it is alleged that you have outstanding or unpaid fines, the police have the right to detain you if they can show you a legitimate warrant of arrest or a valid copy – only. Allegations of outstanding fines, or that a warrant has been issued, do not suffice.
If the police cannot show you a legitimate warrant or copy, you have the right not to be arrested. If the police persist without a warrant, you have the right to immediately call your lawyer.
If the police ask you to pay the outstanding fine(s) and you do not have the money available, you might be detained until the fines are paid, only if a warrant was issued.
In these circumstances it’s best to contact a lawyer.
We suggest that you keep the receipts of paid fines in your car, so that you can immediately produce proof should a dispute arise about nonpayment of fines at such an occasion.
**Ensure that you have your lawyer’s number saved on your mobile phone!

19/08/2015

This raises very interesting legal questions about privacy, access to information, copyright, theft and the like but I suspect that the actual legal debate will be whether there will be a spike in Divorces over the coming months. Anyone dare to venture a guess?

The other shoe just dropped. The hackers who breached the cheating site AshleyMadison.com appeared to make good on their threat to expose customer data on Tuesday, dumping the stolen information online.

12/08/2015

These are some of the pictures taken right on our doorstep of the most amazing food market hosted by the restaurants in St George's Mall. This market happens every Thursday. What a privilege to work in this amazing city!