What are the opening hours?

Monday 08:00 - 17:00 Tuesday 09:00 - 17:00 Wednesday 09:00 - 17:00 Thursday 09:00 - 17:00 Friday 09:00 - 14:00 Saturday 10:00 - 13:35

Jardim Attorneys, R513, Hartebeestpoort (2026)

01/05/2021

🧐Happy Worker's day from all of us at Jardim Attorneys!🤓

"Inaction breeds doubt and fear. Action breeds confidence and courage. If you want to conquer fear, do not sit home and think about it. Go out and get busy." ~ Dale Carnegie, American business icon

27/04/2021

🧚‍♀️Happy Freedom day from all of us at Jardim Attorneys🧚‍♂️

“The only real prison is fear, and the only real freedom is freedom from fear.” - Aung San Suu Kyi

25/04/2021

SOMEDAY SUNDAY

YOU MIGHT NOT NEED THIS INFO TODAY, BUT YOU MIGHT SOMEDAY! SO PAY ATTENTION!

I negotiated a lease agreement with a lessee, we both tracked changes to the agreement and reached a point where it was ready for signature, however we never signed the agreement. The lessee has breached the agreement, can I sue him in terms of the agreement or can I not because it is an oral agreement?

The only agreements that have to be reduced to righting to have any force or effect are purchases / sales of immovable property (Land). All other oral agreements are valid and enforceable between the parties and enjoy as much protection under the law as agreements in righting, they are just a little bit more difficult to prove. What is to your advantage is that the *parol evidence rule does not apply to oral agreements and therefore oral evidence “outside” of the contract/agreement is allowed.

The written agreement that was never signed can be used as prima facie proof of the terms of the agreement between the parties. It would be good to produce all the amendments to the agreement as the negotiation process went ahead.

These terms must be specifically pleaded in the particulars of claim to the summons. Oral evidence will be led in court at the trial and the party whom the court believes will be the successful party. Which is often the case in cases where the terms were in righting.

*The parol evidence rule is a rule in common law that governs what kinds of evidence parties to a contract dispute can introduce when trying to determine the specific terms of a contract.

Adv M de Meyer

Contact our offices should you be facing a similar situation!
[email protected]

20/04/2021

TUESDAY Q & A - YOU ASKED, WE ANSWERED

I no longer want certain family members in my life, more specifically my mother and sister, how can I legally write them off?

There is no legal mechanism that allows people to "divorce" or “write-off” their parents or siblings.

If, however, you are the victim of domestic violence perpetrated by your mother and/or sister, you may apply for a Protection Order which aims at preventing the reoccurrence of domestic violence or sexual harassment by stating what conduct the alleged perpetrator must refrain from doing. As long as alleged perpetrator complies with the protection order, you will be safe. If the alleged perpetrator contravenes any stipulation of the Protection Order, she may be arrested. Once a Protection Order is granted, it is enforceable throughout the country.

You may apply to Court for an Interdict which is aimed at compelling or preventing specific person/people from doing some activities. There are four requirements, which need to be met for an Interdict (interim and/or final) to be granted:

• The applicant must have a clear (prima facie is the fancy legal term) legal right.
• The applicant must have a well-grounded basis for believing it will suffer irreparable harm if the interdict is not granted.
• Balance of convenience must favour the applicant. The Court has to weigh the potential prejudice to the applicant if the interdict is refused against the potential prejudice to the respondent if the interdict is granted. If the prejudice to the applicant is greater, the balance favours the applicant.
• There is no alternative remedy available to the applicant.

In our law there is no such thing as "writing off or signing away" a child. Maintenance by biological parents/adopted parents, is payable in terms of law, and cannot be agreed away. Parents will each always have a duty to support and maintain their children. Further, in terms of common your parents/siblings may receive maintenance from their children/siblings, if the parents/siblings have little or no income, and only if the children have the financial means to do so.

Should you be a minor, Section 28 of the Children’s Act 38 of 2005, provides for the termination, extension, suspension or restriction of parental responsibilities and rights. This provision caters for an application to be brought in the High Court where the Applicant would request the Court to grant an order either terminating or suspending the parental responsibilities and rights of the neglecting parent. The effect of an application for termination of parental responsibilities and rights will either wholly or partially deprive a person of their parental responsibilities and rights regarding a child meaning that person will no longer have any obligations to care for or maintain the child nor have any right to exercise contact with the child.

The following may also apply to Court:

• A co-holder of parental responsibilities and rights in respect of the child;
• Any other person with sufficient interest in the protection, wellbeing, and development of the child;
• The child, acting with leave of the Court;
• A person acting in the child’s interest, with leave of the Court;
• A Family Advocate or the representative of any interested state organ

Should you pass away without leaving a valid Last Will and Testament, the rules of intestate succession shall apply to your estate, and in the event of you:

• not have a spouse or children, but are survived by both parents, your estate will be divided between the parents. Where only one of the parents of the deceased survived the deceased, half of the value of the estate will devolve upon the surviving parent, and the other half will be divided between pre-deceased parent’s descendants;

• being survived by descendants of your mother and father, half of your estate will devolve upon the descendants of the father and the other half upon the descendants of the mother;

• being survived by descendants of one parent only, such descendants will inherit the whole estate.

By drafting a Will, you can ensure that your mother and/or sister do not inherit from your estate.

Should you have any questions regarding above, please do not hesitate to contact our offices and schedule an appointment to discuss the issue.

CONTACT OUR OFFICES FOR MORE INFORMATION - [email protected]

06/04/2021

TUESDAY Q & A - YOU ASKED, WE ANSWERED

How valid is an agreement which is signed electronically?

At the outset, agreements need not be in writing in order to be valid. Oral agreements are also valid and enforceable, subject to various requirements. When agreements are however reduced to writing, you should establish whether the requirements of an agreement are met in order for the agreement to be valid.

Below are some of the requirements for an agreement to be valid and binding.

• Consent or a “meeting of the minds” must take place between the parties;
• The parties must have the legal capacity to contract;
• There is no legal prohibition on concluding the contract;
• The offer (in this instance in the form of a written agreement), sent by the offeror, must be brought to the offeree’s attention;
• The acceptance of the written offer a should be in writing and signed;
• Acceptance must be clear and unambiguous (not have two possible meanings);
• The offeree’s acceptance must be communicated to the offeror to conclude a valid.

Accepting that the agreement provided to you by the offeror complies with the requirements, you must then consider whether an electronic signature, is required in order to fulfil the requirements for a valid agreement coming into force. Importantly, an agreement may expressly prohibit electronic signatures.

In terms of the Electronic Communications and Transactions Act 25 of 2002 (“ECTA”), which has legalised the majority of the requirements set out above, where the signature is required, and the type of signature is not specified, the requirement of requiring a signature is met, when an electronic signature is used.

Furthermore, if you have not agreed on the type of electronic signature to be used, the requirement is met when there is a method used to identify the specific person and their approval, and having regard to all the relevant circumstances, the method used was appropriate for the purposes intended. Also, where an electronic signature is not a requirement, your intent is sufficient to bring legal force to the agreement.

Where an advanced electronic signature has been used, such signature is regarded as being a valid electronic signature and applied properly, unless the contrary is proved. An advanced electronic signature is a signature that results from product or service which has received accreditation. Where the law requires an electronic signature to be used, an advanced electronic signature must be used.

There are however certain exceptions to the electronic signatures being used, for example,

• the Wills Act, No. 7 of 1953 which require certain formalities to be met in order for such an agreement to be valid,
• An agreement for alienation of immovable property as provided for in the Alienation of Land Act, Act No. 68 of 1981, and
• An agreement for the long-term lease of immovable property in excess of 20 years as provided for in the Alienation of Land Act, Act No. 68 of 1981.

Where your agreement and electronic signature complies with ECTA, it will be regarded as having been validly executed, and enforceable as between the parties.

CONTACT OUR OFFICES TODAY SHOULD YOU REQUIRE ANY ASSISTANCE - [email protected]

05/04/2021

👩‍👩‍👧‍👦Happy Family Day from all of us at Jardim Attorneys

“Because when I look at you, I can feel it. And I look at you and I’m home.” – Dory

04/04/2021

🐥Happy Easter from all of us at Jardim Attorneys🐰

"It is difficult to say what is impossible, for the dream of yesterday is the hope of tomorrow and the reality of today" - R H Goddard

21/03/2021

Happy Human Rights Day from all of us at Jardim Attorneys!

“We declare that human rights are for all of us, all the time: whoever we are and wherever we are from; no matter our class, our opinions, our sexual orientation.” – Ban Ki-moon

16/03/2021

TUESDAY Q & A - you asked, we answered!

Can I leave my house and furniture to my partner in my will and thereafter elect someone else to inherit it after the partner dies?

In South Africa, a person can leave his or her assets to whoever he likes, with few limitations. This is called “freedom of testation “. However, and to ensure that your wishes are followed after your death, it is necessary that you have a Last Will and Testament be properly drafted, I accordance with legislation, and initialled signed by you in the presence of two witnesses, who are not beneficiaries in the Last Will and Testament.

In your Last Will and Testament, you may direct that a third person inherits your house and furniture, however your partner has the use of your home and furniture until your partner’s death. This is called a usufruct, or usus, or habitatio.

A usufruct, usus and habitatio, are real rights in terms of which the owner of a thing confers on the “usufructuary” the right to use and enjoy the thing to which the usufruct relates. A usufruct, usus and habitatio, are personal servitudes which cannot be transferred and cannot be extend beyond your partner’s lifetime.

There are important differences in usufruct, usus and habitation, as set out briefly below, so it is important to consult with an attorney when drafting your Last Will and Testament to ensure that your wishes are property set out.

A usufructuary can use the fruits of the house. Fruits are natural products (e.g., fruit, vegetables, milk, eggs, animal offspring) as well as income recovered from the property (e.g., rental income). The property must be maintained by the usufructuary (the holder of the right) without compensation and must be returned to the owner in substantially the same condition.

Usus (use) grants a person the right to use another person’s property for his own use and for the use of his family without changing the essential qualities of the property. The difference between a usufruct and usus is that usus is much more restrictive as the user may only take fruits for his and his family’s personal daily needs. He cannot sell the fruits or lease the property.

Habitatio or residency grants a person and his family the right to live in someone else’s house without changing the essential qualities of the property. Unlike usus, habitatio permits the holder of the right to lease the property. The habitatio ends when a fixed period has lapsed or on the death of the holder of the right.

An Executor in a deceased estate and the usufructuary must ensure that the personal servitude, that is the usufruct, or usus or habitatio, is registered over the immovable property at the Deeds Office. This is to ensure that the personal servitude can be enforceable against any third party and that the third-party owner of the property does not do any thing to the property that may affect your partner’s rights.

Contact us today to assist you with any of your legal matters- [email protected]

05/03/2021

FAMILY FRIDAY - SETTING THE RECORD STRAIGHT

My partner and I jointly own a property, I no longer wish to share the property with him what can I do?

You would need to launch an application which is more commonly known as the actio communi dividundo. The actio communi dividundo is an action with which co-owners effect physical division of tangible things which they hold in joint ownership. A person who holds property jointly with others in undivided shares may ask for a division and the performance of obligations due by the others in respect of his share.

For instance, after dissolution of the partnership, a partner can bring this action to obtain physical division of jointly owned partnership assets.

Should you wish to bring an action as set out above, you must meet the following requirements: You must be the joint owners in respect of certain property; one party must wish to terminate the joint ownership; the parties are not able to effect a division by agreement; that a receiver be appointed to take charge of the asset, dispose of same, pay all obligations in respect thereof, and to divide the nett proceeds between the parties.

This is an effective remedy when you wish to dissolve a partnership, when you want to sell a property jointly owned with your spouse or partner and they refuse to do so.

Should you be facing a similar situation, contact our offices to assist you to bring an action to divide the property.

[email protected]

02/03/2021

TUESDAY Q & A
You asked, we answered!

Can my Landlord turn off the water AND electricity of the rental property?

The alleged right to the electricity and water is part of the alleged right to occupy the property. The landlord who was allegedly obliged to allow the tenant/claimant to be in possession of the property maybe the party who is allegedly obliged to supply, or to allow a supply, of services such as electricity and water. In such cases, the landlord has a direct interest in the possession of the property itself.

(Throughout we have referred to ‘alleged’ rights. This is because in spoliation proceedings the claimant does not need to establish his alleged rights. However, the claimant does need to establish acts demonstrating the possession of the corporeal property or quasi-possession of the alleged right. The claimant’s occupation of the premises, and his or her use of its electrical and water, constitute the possession of the premises and the quasi-possession of the alleged right to electricity and water as an incident of his possession of the premises.)

The landlord’s act in cutting off electricity and water is an act which interferes not only in the claimant’s alleged right to receive those services but simultaneously interferes in the claimant’s alleged right against the landlord to be in undisturbed possession of the premises with the amenities forming part of the alleged right of occupation. The claimant’s alleged right to receive electricity and water is part of the cluster of alleged rights making up the occupation to which he claims to be entitled. And in such cases, it may be difficult to avoid the conclusion that the landlord who has intentionally cut off the electricity and water is trying to eject the occupant without due legal process. This is referred to as Spoliation.

Spoliation refers to the unlawful deprivation of a party’s right of possession. The remedy for such deprivation is a spoliation order or, by another name, the mandament van spolie. When it comes to the dispossession of a party’s right of possession of movable or immovable property, South Africa’s law on spoliation orders is long settled. It has been established in recent judgments that the remedy can also be extended to certain incorporeal rights, which relate to intangible property.

The Courts granted relief in order to protect the claimants’ occupation of the premises. Alternatively, as protecting the claimant’s quasi-possession of an alleged incorporeal right to obtain water and electricity.

The Courts have found that the claimant’s true grievance is not a despoiling of an alleged right to electricity or water viewed in isolation but the material adverse impact this has on his occupation of the premises. Similarly, when Eskom or a municipality cuts off a user’s electricity and water because of a contractual dispute, the user’s ultimate grievance is the adverse impact this has on his use of the premises served by the electricity and water. The supply of electricity or water is of no benefit to the user independently of his occupation of the premises.

The act of cutting off the electricity and water materially disturbs the claimant in his possession of the premises, and that the claimant’s occupation is worthy of protection under the mandament.

If the alleged right to electricity is an incident of the claimant’s occupation of the premises, then (a) that the alleged right to electricity is the subject of quasi-possession for purposes of the mandament; and (b) that a spoliation of the said quasi-possession is simultaneously an act of spoliation in relation to the premises themselves, even though the claimant has not been wholly deprived of possession.

However, we would have to have regard to the specific terms and conditions of any agreement of lease. If in terms of a lease agreement, as an incident of their occupation of the leased property, the tenant has use of electricity and water – the discontinuation of the electricity and water can be viewed as an act intended to force the tenant off the lease premise, i.e. to disturb them in their peaceful possession of the leased premises. Thus the alleged right was thus one enjoying the protection of the mandament.

However, Courts have accepted that if the claimant received the supply of electricity and water from the landlord purely as a result of a contractual relationship between them, which did not constitute an act of possession or control of property, then the landlord may discontinue the supply of electricity and water.

Each case is unique and it is advisable to consult with an attorney before proceeding with urgent applications to Court to have the supply of electricity and water re-continued.

Contact us today should you require any assistance!

[email protected]

19/02/2021

FAMILY FRIDAY - SETTING THE RECORD STRAIGHT

We celebrated the marriage in terms of the customary traditions, we however never formally registered it. Is our marriage valid, what can we do?

The answer to your question is simply, the non-registration of a customary marriage does not affect the validity of the marriage, there is no penalty for a failure to register the marriage. That being said, if a non-registration leads to inconvenience, in relation to other matters, this may create a need for registration.

In the Kambule v The Master and another [2007] 4 All SA 898 (E) case, the marriage was concluded in accordance with customary law, prior to commencement of the Recognition of the Customary Marriages Act 120 of 1998 (RCMA), and was valid despite the fact that it had not been registered, as defined in section 1 of the RCMA.

The High Court and or Family Court have the power to order the registration of a customary marriage or the cancellation or rectification of its registration.

In order to register the marriage, you would follow the process as set out in the RCMA.

Should you be facing a similar situation, contact our offices to assist you to register your marriage.
[email protected]

Jardim Attorneys

01/05/2021

27/04/2021

25/04/2021

20/04/2021

06/04/2021

05/04/2021

04/04/2021

21/03/2021

16/03/2021

05/03/2021

02/03/2021

19/02/2021

Address

Opening Hours

Telephone

Website

Alerts

Contact The Practice

Shortcuts

Share

Category

Monday	08:00 - 17:00
Tuesday	09:00 - 17:00
Wednesday	09:00 - 17:00
Thursday	09:00 - 17:00
Friday	09:00 - 14:00
Saturday	10:00 - 13:35