N Gumbi and Associates

01/04/2026

25/02/2026

Legal Framework for Maintenance in South Africa
In South Africa, maintenance is governed primarily by the Maintenance Act 99 of 1998, which establishes a legal duty for individuals to provide financial support to family members who cannot support themselves. There is no fixed "minimum amount" of maintenance prescribed by law; instead, the amount is determined by a "means test" that balances the reasonable needs of the claimant against the financial ability of the person liable to pay.

The Duty of Support
The duty to maintain is based on blood relationship, marriage, or a legal obligation (such as adoption). This duty is most commonly applied to parents and children, but it extends to other family members under specific conditions.

Child Maintenance: Both parents have a legal duty to support their children, regardless of whether the parents are married, living together, separated, or divorced. This duty also extends to grandparents if the parents are unable to provide support.
Spousal Maintenance: Spouses may have a reciprocal duty of support during the marriage and, in certain circumstances, following a divorce.
General Family Support: Any family member may claim maintenance if they can prove they are unable to maintain themselves and the relative from whom they are claiming has the financial means to provide support.
Determination of Maintenance Amounts
Because South African law does not set a statutory minimum or maximum Rand amount, the Maintenance Court conducts an inquiry to determine a fair amount based on the following criteria:

Reasonable Needs of the Claimant: The court considers the actual expenses required for the person's upbringing or livelihood, including food, clothing, housing, medical care, and education.
Financial Means of the Respondent: The person from whom maintenance is claimed must have the "means" (income, assets, or earning capacity) to pay.
Standard of Living: The court often looks at the standard of living enjoyed by the parties to ensure the maintenance order is equitable.
Maintenance Court Procedure
The Maintenance Act 99 of 1998 provides the procedural framework for enforcing these rights:

Enquiry: A maintenance officer investigates the claim and may institute an inquiry in a maintenance court.
Evidence: The court administers oaths and records evidence from witnesses to determine the financial status of both parties.
Legal Representation: Any party in a maintenance proceeding has the right to be represented by a legal practitioner.
Privacy: Maintenance inquiries are generally private; only necessary parties are permitted to attend unless the court grants permission to others.
International Enforcement
South Africa participates in the reciprocal enforcement of maintenance orders. This allows for the recovery of maintenance even when one party resides in a foreign "proclaimed country" or territory, ensuring that the duty of support is not evaded by moving abroad.

18/02/2026

the Public Protector is a constitutional institution established to investigate conduct in state affairs that is alleged or suspected to be improper or to result in any impropriety or prejudice. Conflicts of interest within the public administration fall squarely within the Public Protector's investigative jurisdiction as they often constitute maladministration, corruption, or the receipt of improper advantage.

Constitutional and Statutory Framework
The Office of the Public Protector is established under Chapter 9 of the Constitution of the Republic of South Africa, 1996. Its primary mandate is to strengthen constitutional democracy by investigating any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper.

Investigative Mandate
Under Section 182(1) of the Constitution of the Republic of South Africa, 1996, the Public Protector has the power to:

Investigate any conduct in state affairs or public administration that is alleged to be improper;
Report on that conduct; and
Take appropriate remedial action.
While the Constitution of the Republic of South Africa, 1996 provides the broad mandate, the Public Protector Act 23 of 1994 provides the specific legislative framework for these investigations. The Public Protector may initiate an investigation on their own initiative or upon receipt of a formal complaint.

Conflict of Interest as Maladministration
Conflict of interest occurs when a person in the employ of the government or performing a public function gains an improper advantage or causes prejudice through an act or omission. The Public Protector is empowered to investigate several categories of conduct related to conflicts of interest, including:

Maladministration: General poor governance or failure to follow procedures due to personal interests.
Abuse of Power: Using a public office to benefit oneself or a related party. [1]
Unlawful Enrichment: The receipt of improper advantages or promises of such enrichment by public officials.
Dishonest Acts: Corruption or improper acts in the public administration of public institutions.
Accountability and Removal
The Public Protector must be independent and impartial. If the Public Protector themselves is perceived to have a conflict of interest or fails to perform their duties with the requisite integrity, they can be removed from office. Under the Constitution of the Republic of South Africa, 1996, removal requires a finding of misconduct, incapacity, or incompetence by a committee of the National Assembly and a subsequent two-thirds majority vote in the National Assembly.

Case Study: Procedural Fairness
In Public Protector and Others v. President of the Republic of South Africa and Others, (CCT 62/20) ZACC 19, the court examined the limits of the Public Protector's powers and the necessity of adhering to the rule of law during investigations. Furthermore, recent removal proceedings have highlighted the importance of legal representation and the avoidance of "predetermined outcomes" in the oversight of the Public Protector's own conduct.

11/02/2026

Worker compensation is primarily governed by the Compensation for Occupational Injuries and Diseases Act (COIDA). The system provides a no-fault compensation mechanism for employees who sustain injuries or contract diseases in the course of their employment, while simultaneously indemnifying employers against civil liability for such incidents.

I. Scope of Coverage
Under COIDA, coverage extends to permanent and casual workers, trainees, apprentices, and farm workers. Notably, recent legislative changes and government guidance now include domestic workers in boarding houses or business setups, though domestic workers in private homes were historically excluded. Certain groups are excluded from claiming under this specific fund because they are covered by alternative statutory schemes, including members of the South African National Defence Force (SANDF) and the South African Police Service (SAPS).

II. Employer Duties and Reporting Obligations
Employers bear strict legal responsibilities regarding the reporting of workplace incidents. Failure to adhere to these timelines can result in administrative penalties.

Reporting Timelines: An employer must report an occupational injury to the Compensation Fund within seven working days of receiving notice from the employee. For occupational diseases, the reporting window is fourteen days.
Documentation: The employer must provide the worker with Form W.CI.2 (Part B), which the worker takes to the medical practitioner.[2] Employers are also responsible for submitting subsequent medical reports (W.CI.4 and W.CI.5) to the Fund.
Financial Obligations: Employers must register with the Fund within seven days of hiring their first employee and pay annual assessments based on a percentage of employee earnings.
III. Rights of the Injured Worker
Workers have a statutory right to compensation for medical expenses and loss of wages, provided the injury was not caused by willful misconduct (unless the injury results in serious disability or death).

Medical Treatment: Workers have the right to see a doctor of their choice. The Fund covers all reasonable medical expenses related to the injury.
Wage Replacement: If a worker is unfit for duty for more than three days, they are entitled to 75% of their wages at the time of the accident. For the first three months, the employer typically pays this and claims it back from the Fund; thereafter, the worker may claim directly from the Fund using Form W.CL.132.
Permanent Disability: If an injury results in permanent disablement, the Worker is entitled to either a lump sum (for disability assessed at 30% or less) or a monthly pension for life (for disability exceeding 30%).
Reasonable Accommodation: Employers are responsible for providing reasonable accommodations or work modifications to enable injured workers to return to work, which may include adapted equipment or work hardening programs.
IV. Limitations and Exclusions
Time Bars: Claims must be reported within 12 months of the accident, death, or disease diagnosis, or they will not be paid.
Duration of Absence: No compensation for lost wages is paid if the worker is off for three days or less, though medical expenses are still covered.
Geographic Limits: Workers are generally covered for short-term work outside South Africa, but if the period exceeds 12 months without a prior agreement with the Director General, coverage may lapse.

04/02/2026

In our law, when a breadwinner is killed in a road traffic accident and their dependents suffer financial damage, they may file a claim for loss of support against the Road Accident Fund (RAF).
It is not the deceased's claim, but rather the conduct of a dependent.
1. Legal Foundation for Support Loss
The common-law dependent's action, which is currently being enforced against the RAF, provides the basis for the claim.
• The 1996 Road Accident Fund Act 56, and
• The courts' development of common law.
The RAF assumes the wrongdoer's position.
Important idea: If a person was legally entitled to maintenance from the deceased, they may be entitled to compensation for the loss of such support due to a wrongful death.
2. Who May Claim?
A claimant must demonstrate more than just emotional dependence—they must demonstrate a legal entitlement to support. Known claimants consist of:
✅ Spouses (civil, customary, religious marriages)
✅ Minor children
✅ Major children who were financially dependent
✅ Life partners where a reciprocal duty of support existed
✅ Parents supported by the deceased
✅ Customary law dependent’s
The Courts expanded the scope in:
Du Plessis v RAF 2004 (1) SA 359 (SCA)
and
Paixão v RAF 2012 (6) SA 377 (SCA)
In some circumstances, support obligations resulting from non-marital partnerships are acknowledged.
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3. What Must Be Proven?
To succeed, the claimant must be able to show:
1. Death of the breadwinner
2. Wrongful and negligent driving
3. A duty of support owed by the deceased
4. Actual financial dependence
5. Loss of that support
6. Causation between death and loss
In Legal Insurance Co Ltd v Botes 1963 (1) SA 608 (A) the court confirmed that the essence is patrimonial loss, not sentiment.
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4. What Can Be Claimed?
The claim is purely financial, including:
✅ Future maintenance the deceased would have provided
✅ Value of household services
✅ Education and living expenses for children
✅ Medical aid, housing, food, transport contributions
It excludes:
❌ Emotional distress
❌ Grief
❌ Pain and suffering
Those belong to different causes of action, not loss of support.
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5. Calculation of Loss of Support
The court uses actuarial calculations, considering:
• Deceased’s income
• Career progression
• Retirement age
• Life expectancy
• Portion spent on dependants
• Contingencies (unemployment, illness, remarriage etc.)
Typical formula:
Deceased’s net income – personal living expenses = amount available for dependants.
Then projected into the future and discounted.
Courts rely heavily on actuarial experts.
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6. Prescription Period
Claims prescribe after 3 years in terms of:
• Section 23 of the RAF Act
For minors, prescription runs only once they reach majority.
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7. Common Defences Raised by RAF
RAF often disputes:
⚠ Dependency
⚠ Income proof
⚠ Negligence
⚠ Causation
⚠ Contingency percentages
⚠ Marital or relationship status
Hence documentation is crucial: payslips, affidavits, maintenance proof, bank statements.

28/01/2026

Voice recordings and video recordings can be admissible as evidence under our law, but whether and how they may be admitted depends on several legal principles, the context in which they were obtained, and how they are tendered in court.
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📌 1. General Rule: Relevant Evidence is Admissible
Under South African law generally, evidence (including electronic, audio, and video recordings) that is relevant to the case may be admitted in court — unless another legal rule excludes it. This applies in criminal trials, civil cases, disciplinary hearings, and arbitration, subject to the court’s discretion.
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🎥 2. Recordings as “Real Evidence”
Criminal Cases
• Courts have treated audio and video recordings as real evidence — meaning physical evidence that can directly illustrate facts in dispute.
• In S v Ramgobin and Others (1986), recordings had to be shown to be original, accurate, unaltered, and relevant to be admissible.
• Later authority (e.g., S v Baleka and Others) held that such recordings are real evidence and may be admitted if relevant without imposing overly strict formal requirements.
• Courts may require evidence about the chain of custody, how and when the recording was made, and that it has not been tampered with.
Civil and Labour Proceedings
• In arbitration or disciplinary hearings (e.g., under the Labour Relations Act), video and audio recordings are often admitted if:
o they are authentic and relevant,
o someone can identify what they show or hear,
o and they have not been altered.
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🛡️ 3. Constitutional and Statutory Constraints
Right to Privacy (Section 14 of the Constitution)
• Evidence obtained in a way that violates constitutional rights (like privacy) may be excluded if admitting it would make the trial unfair or harm justice (Section 35(5) of the Constitution).
• This means that even if a recording was obtained improperly, a court can still admit it if the admission promotes the interests of justice and does not render the trial unfair.
Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA)
• RICA governs interception and recording of communication in South Africa.
o Generally, you may record a conversation you are a party to without the other person’s consent.
o Recording communications you are not a party to may be unlawful unless a legal exception applies.
o However, unlawfully obtained recordings are not automatically inadmissible — the court still has discretion.
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🧠 4. Authentication and “Trial-Within-a-Trial”
If the authenticity (who is speaking, that the recording is genuine) or the origin of the recording is disputed, the court may hold a trial-within-a-trial — a separate mini-hearing to decide whether the recording should be admitted.
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🧩 5. Practical Requirements Before Admitting Recordings
Before a recording is admitted as evidence, the party tendering it normally must show:
1. Relevance — it tends to prove a fact in issue.
2. Authentication — it is what it purports to be and can be linked to the incident.
3. Originality/Integrity — original or reliably replicated; no reason to suspect tampering.
4. No unfair prejudice — admissible unless its prejudicial effect outweighs its probative value. (Constitutional discretion.)

The case in point are Audio excerpts reveal Mchunu urging Witness E to sign a statement denying interference, promising "freedom and happiness for the rest of your life," while Witness E testifies it was unsolicited coercion, not entrapment, as WhatsApp calls were previously used to avoid recording.
Mchunu rejects the claims as misrepresentation and requests re-testimony.

In respect of posting Tik Tok videos without consent:
Uploading & Sharing Without Consent
Even where recording may have been lawful (like filming in public):
📍 Uploading someone’s video online without their consent can still raise legal issues:
• Protection of Personal Information Act (POPIA): This law governs how personal information — including images and videos that identify someone — may be processed or shared. Processing without lawful basis or consent can be a breach.
• Civil claims: A person whose video was shared without consent may be able to sue for invasion of privacy, defamation, or emotional harm.
• In NT v Kunene and Others (Gauteng High Court), the posting of private videos without consent was held to violate privacy and dignity rights.

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🧠 6. Summary
Type of Recording Generally Admissible? Key Conditions
Voice recordings (audio) Yes Must be authenticated, relevant, and not unfairly prejudicial; unfairly obtained evidence may still be admitted in the interests of justice.
Video recordings Yes Same tests as audio; chain of custody and relevance must be explained.
Illegally obtained recordings Possibly Court has discretion under Constitution to admit if in interests of justice.
Recordings shared without consent Possibly Consent matters for legality of recording, but admissibility is a separate judicial decision.
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• South African courts do admit audio and video recordings as evidence if they are relevant and properly authenticated.
• Unauthorised recordings are not automatically excluded — judges weigh fairness, probative value, and constitutional rights.
• A recording’s origin, chain of custody, and possible tampering will be considered, and courts may hold a separate hearing to decide admissibility.

21/01/2026

The Consumer Protection: The rights of consumers in South Africa
By outlawing unfair corporate and market activities, encouraging responsible consumer behaviour, and harmonising the laws governing consumer protection, the Consumer Protection Act, No. 68 of 2008 (CPA) seeks to promote a fair, accessible, and sustainable marketplace. It covers all transactions in the regular course of business that involve the provision and promotion of goods or services in South Africa for consideration, with a few exceptions.
The primary goal of the CPA is to safeguard customers who are at risk. As long as the juristic person's asset value or yearly turnover at the time of the transaction does not equal or surpass R2 million, both natural and juristic persons are considered "consumers." Franchises and no-fault liability for damages caused by products are an exception, and the rules pertaining to them also apply to customers who are above the threshold.
Since the passage of the Consumer Protection Act, 2008 (the "CPA"), which gives customers the right to fair, just, and reasonable terms and conditions, this legislative protection of consumers has become a popular trend. Suppliers are prohibited by the CPA from requiring customers to waive any rights, take on any obligations, or waive any supplier responsibility on "unfair, unreasonable, or unjust" terms.
According to the CPA, a term or condition of an agreement is unfair, unreasonable, or unjust if, for instance, it is unduly biased, the conditions are unfair, or the customer was harmed by a false representation. Additionally, the CPA stipulates that any notices or provisions that aim to restrict the supplier's liability, require consumers to assume liability, impose an obligation on the consumer to indemnify the supplier, or require any acknowledgements of fact by the consumer must be made clear to the consumer and written in plain language.
A list of transactions and terms and conditions that are forbidden is provided by the CPA. These include transactions that undermine the CPA's objectives, deceive customers, or deny them any rights under the CPA. Furthermore, a "grey list" of terms that are deemed to be unjust and unreasonable is provided by CPA rule 44. This list includes prohibiting the consumer from using the prescription defense or limiting the supplier's liability for death or personal damage.
Similar to this, the National Credit Act, 2005 (the "NCA") offers a comprehensive list of clauses that are prohibited from being included in credit agreements. This list is similar to the CPA in that it consists of:
• clauses that undermine the NCA's goals;
• claim to deny a customer any NCA rights;
• evade a credit provider's NCA obligations;
• renounce any rights under common law that apply to credit arrangements; or
• Release the lender from responsibility.
The NCA also contains prohibited clauses that are specific to credit agreements, such as clauses expressing the consumer's agreement to forfeit money to the credit provider, granting the credit provider a power of attorney in advance, and consenting to a predetermined amount of costs associated with enforcing a credit agreement. Similar to the CPA, the NCA specifies what kinds of clauses are illegal and cannot be found in consumer agreements.
Although the terms outlined in the CPA and NCA served as the model for sections 5(1) (d) and 5(2) of the Conduct Standard concerning unfair contract terms, these provisions are less explicit. A bank must make sure that the terms, conditions, and obligations in a contract between the bank and its retail financial customer are not unjust in accordance with Section 5(1)(d). Without restricting the restriction in section 5(1)(d), section 5(2) makes clear that a term, condition, or requirement in a contract will be unfair if it:
• would result in a substantial and irrational disparity between the parties' contractual rights and duties; • is not reasonably required to safeguard the financial institution's legitimate interests, since the term, condition, or requirement would unfairly benefit them;
• if used or relied upon, would give a retail financial customer an unjust result (financial or otherwise);
• Unreasonably demand that a retail financial customer relinquish any rights or release the bank from any obligations or liabilities in order to engage in a transaction.
Unlike the CPA and NCA, these rules do not offer a "grey list" of terms that are presumed to be unjust or unreasonable or a list of phrases that are forbidden.
Courts can rely on the rules or lists of forbidden phrases, much like in the case of the NCA and CPA, and they can largely avoid analyzing what makes a fair and reasonable contractual term. This is not feasible within the framework of the Conduct Standard, and it may be challenging to anticipate when the Financial Sector Conduct Authority (the "FSCA") or the courts will declare a clause in a contract between a bank and its retail financial customer void due to non-compliance with section 5(1)(d) of the Conduct Standard due to the lack of specificity.

14/01/2026

1. What “fly-by-night” and unregistered colleges are
In South Africa, “bogus colleges” colleges refer to education providers that:
• Do not have a registration with the appropriate government agencies, such as the Department of Higher Education and Training (DHET). • Provide credentials that statutory quality agencies like SAQA, Umalusi, CHE, or QCTO have not accredited or registered on the National Qualifications Framework (NQF).
• Mislead students into believing their courses are accepted, which could guide to diplomas that are useless for work or future education.
Both SAQA and the DHET strongly advise against these services since they are deemed unlawful or unlicensed.________________________________________
📜 2. Legal requirements for private colleges in South Africa
✔️ a) Registration with DHET
To operate legally, a private college must be registered with the Department of Higher Education and Instruction: • In accordance with the Higher Education Act of 1997, private higher education institutions that offer NQF Levels 5–10 are required to register with the DHET. • The Further Education and Training Colleges Act, 2006 (Act No. 16 of 2006) requires private FET colleges that offer NQF Levels 2–4 to register.
Registration guarantees that the programs are in line with national standards, safeguards quality and the public interest, and grants legal permission or a license to offer qualifications.

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✔️ b) Accreditation and qualifications registration
Registration is insufficient on its own: • The applicable quality council must accredit the qualifications offered:
o Umalusi for FET requirements
For higher education, the Council on Higher Education (CHE)
For occupational and trade qualifications, contact the Quality Council for Trades and Occupations (QCTO). • Additionally, SAQA needs to record those qualifications on the South African NQF.
A college cannot lawfully grant recognized certifications without both registration and accreditation.

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🚫 3. Operating without registration is unlawful
❗ Legal consequences
Operating a private college without proper registration and accreditation is unlawful. Providers that do so:
• Are considered illegal by the DHET.
• May be shut down by the department and investigated with law enforcement support.
• May face criminal charges, including fines and possible imprisonment, under relevant statutes (e.g., FET Act).
• Are not permitted to enrol students for qualifications that are not recognised: such student enrolments are invalid and carry no legal value for employment or further study.
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⚠️ The importance of registering • Employers and accredited universities will typically not recognize credentials from unregistered institutions for additional study. • Under rules pertaining to educational quality, students run the danger of suffering financial loss and have no legal recourse against the provider. • You should stop making payments, collect evidence, and notify the institution to SAQA and the DHET if you unintentionally sign up with an unauthorized provider.________________________________________
📌 4. How to check if a college is legal
Before enrolling:
Verify whether the college is included on the official DHET Register of private universities.
2. Request the registration number and proof of registration for the organization.
3. Confirm that the particular qualification you desire is approved and listed on the NQF.
4. To check status, use the DHET's official website or toll-free number, such as 0800 872 222.________________________________________
📌 Summary
Status of college Legal? Recognition of qualifications
Registered & accredited ✅ Yes — nationally recognised
Registered but not accredited ⚠️ No — qualifications likely worthless
Unregistered (“Bogus Colleges”) ❌ No — illegal to operate, certificates not recognised
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Bottom line: Operating or studying at a college that isn’t registered with the DHET and accredited by the appropriate authority is illegal in South Africa. Qualifications from such institutions are generally not recognised for employment or further study, and both SAQA and DHET actively warn against and work to shut down these illegal providers.
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If you want, I can help you check the registration status of a specific college or list the official registers where you can verify this yourself.

07/01/2026

On January 6, 2026, President Cyril Ramaphosa appointed Advocate Jan Lekgoa Mothibi (commonly known as Andy Mothibi) as the new National Director of Public Prosecutions (NDPP) to lead South Africa's National Prosecuting Authority (NPA), with the appointment taking effect on February 1, 2026.
Mothibi, who is currently the head of the Special Investigating Unit (SIU), has a background that includes serving as a public prosecutor and magistrate in Johannesburg and Soweto, as well as managing legal, compliance, and risk operations at the South African Revenue Service (SARS).
The appointment followed a selection process where an advisory panel, chaired by Minister of Justice and Constitutional Development Mmamoloko Kubayi, interviewed six shortlisted candidates from 32 applicants but concluded none were suitable for the role.
The president used his power to immediately appoint Mothibi, circumventing the shortlist, in accordance with section 179(1)(a) of the South African Constitution and section 10 of the National Prosecuting Authority Act.

The appointment has generated conflicting views among the public; some perceive it as a potential blow to NPA independence, while others see it objectively as a major move against corruption.
Pattern rather than individual motivation is the issue. President Cyril Ramaphosa frequently hires people whose records indicate that they have been investigated without facing any repercussions. Trust is undermined when an open interview process is circumvented in favour of a candidate who has never been put to the test. Legitimacy and lawful discretion are two different things. This nomination does not indicate a desire to pursue politically challenging prosecutions instead of maintaining institutional stability.
This technique is reminiscent of previous NDPP appointments under former President Jacob Zuma, such as Menzi Simelane (2011), who was later declared irrational by courts, and Shaun Abrahams (2015), in which executive discretion superseded screening, igniting ongoing discussions about constitutional checks under Section 179(1)(a) of the SA Constitution.
Mothibi has led SIU since 2018 and has been involved in high-profile investigations such as COVID-19 corruption. However, the unannounced appointment has generated conflicting opinions, with supporters pointing to his experience and detractors raising concerns about accountability in the wake of State Capture.