Frequently Asked Questions

The difference between a contested and uncontested divorce is fundamental to the duration, cost, and complexity of the legal process in South Africa.

Uncontested Divorce: This occurs when both spouses agree on all the terms of the divorce, including:

• The division of the joint estate (assets and liabilities).
• Primary care and contact rights regarding minor children (custody and access).
• Maintenance payments (spousal and/or child maintenance).

An uncontested divorce is the quickest and most cost-effective route. It typically involves drafting a settlement agreement which is then made an order of court. The process can be finalized in as little as 4 to 8 weeks, depending on the court roll.

Contested Divorce: This happens when spouses cannot agree on one or more of the material terms. Common points of contention include the value of assets, pension interest claims, or the primary residence of children. A contested divorce involves various stages of litigation, including:

• Exchange of pleadings (Summons, Plea, and Counterclaim).
• Discovery of documents (financial records, bank statements).
• Pre-trial conferences.
• Trial in open court.

Contested divorces can drag on for 2 to 3 years and incur significant legal costs. However, many contested matters are eventually settled before reaching trial through negotiation or mediation.

Child maintenance is not determined by a fixed percentage of income but rather by a "needs vs. means" analysis. The Maintenance Court looks at the reasonable needs of the child and the respective financial means of both parents.

Step 1: Determine the Child's Reasonable Needs
This includes costs for housing, food, clothing, education, medical care, and extra-mural activities. A comprehensive schedule of expenses is usually drafted to quantify this monthly amount.

Step 2: Apportion Liability
Both parents have a common law duty to support their children according to their respective means. The liability is apportioned pro-rata based on each parent's gross income.

Example Formula:
(Parent A's Income / Total Income of Both Parents) x Child's Needs = Parent A's Contribution.

It is important to note that "means" extends beyond just salary; it can include investment income and assets. Maintenance orders can be varied if financial circumstances change materially (e.g., job loss or significant salary increase).

Marriage out of community of property without the accrual system means that there is complete separation of assets. What you brought into the marriage remains yours, and what you acquired during the marriage remains yours. Debts are also separate.

Upon Divorce:
Generally, you have no claim against your spouse's assets. You leave with what is registered in your name. There is no sharing of pension interest or growth in estate value.

Exceptions:
Section 7(3) of the Divorce Act allows a court to order a redistribution of assets in marriages concluded before 1 November 1984 (for whites/coloureds/asians) or before 2 December 1988 (for blacks), if it is equitable and just. For marriages after these dates, strict separation applies unless you can prove a universal partnership existed alongside the marriage, which is legally complex and difficult to prove.

Regardless of the marital regime, a spouse may still claim spousal maintenance if they can prove a need for it, although this is rarely granted permanently in modern law unless the marriage was long-term and the spouse is unable to support themselves.

In South African law, dismissal must be both substantively fair (there is a valid reason) and procedurally fair (a correct procedure was followed). Firing an employee without a hearing is almost always procedurally unfair.

The Requirement for a Hearing:
The Code of Good Practice: Dismissal (Schedule 8 of the Labour Relations Act) requires that an employer typically conduct an investigation to determine whether there are grounds for dismissal. The employer must notify the employee of the allegations using a form and language that the employee can reasonably understand.

The employee must be allowed the opportunity to state a case in response to the allegations. This does not necessarily mean a formal, court-like trial, but there must be a dialogue where the employee can defend themselves, call witnesses, and cross-examine evidence. This right is fundamental to the principle of audi alteram partem (listen to the other side).

Exceptions:
Exceptions are rare but exist, such as in "crisis zone" situations where there is a violent strike and holding a hearing is impossible or dangerous. However, employers act at their peril if they skip this step.

Constructive dismissal occurs when an employee resigns because the employer made continued employment intolerable. Unlike a standard resignation where the employee wants to leave, here the employee feels forced to leave.

Key Elements to Prove:
The onus is on the employee to prove that:

1. They terminated the contract (resigned).
2. Continued employment had become intolerable.
3. The employer was the cause of the intolerability.
4. The resignation was a last resort; no other reasonable alternative existed (e.g., lodging a grievance was futile).

Examples include sexual harassment by a boss that goes unpunished, failure to pay salary for months without reason, or creating a hostile work environment to force a resignation. If proven at the CCMA, the employer may be ordered to pay compensation (up to 12 months' salary) or reinstate the employee.

The Road Accident Fund (RAF) provides compulsory cover to all users of South African roads, citizens and foreigners, against injuries sustained or death arising from accidents involving motor vehicles within the borders of South Africa.

Eligible Claimants Include:

• Drivers: Provided they were not solely responsible for the accident. If partially responsible, the claim is apportioned.
• Passengers: Passengers in any vehicle (including taxis and buses) can claim, usually for 100% of their damages as they are rarely at fault.
• Pedestrians: People walking on or near the road who are struck by a vehicle.
• Cyclists and Motorcyclists.
• Dependents: A spouse or child of a deceased breadwinner who died in a road accident can claim for loss of support.
• Close Relatives: A parent or spouse who had to pay for funeral expenses.

Note on "Hit and Run":
You can still claim if the identity of the other driver or vehicle is unknown, but strict time limits apply (usually 2 years to lodge a claim instead of the standard 3 years).

The timeline for an RAF claim is notoriously lengthy due to the administrative backlog at the Fund and the litigious nature of the process. While every case is different, here is a realistic breakdown:

• Lodgement Phase (0-6 months): Gathering accident reports, medical records, and expert affidavits to formally lodge the claim.
• Investigation Phase (6-24 months): The RAF investigates the merits (who was at fault) and the quantum (how much the injury is worth). They rarely settle at this stage.
• Litigation Phase (2-5 years): Summons is issued. The matter proceeds to court. We fight for a trial date.
• Settlement & Payment (3-6 months after order): Once a court order or settlement agreement is made, the RAF typically takes 180 days to pay the capital amount.

In total, a typical RAF claim can take between 3 to 5 years to finalize. Complex cases involving serious brain injuries or young children can take longer as experts need time to determine the long-term impact on the victim's life.

No, you cannot evict a tenant immediately or lock them out without a court order. South African law (specifically the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998 - PIE Act) protects unlawful occupiers from arbitrary eviction.

The Legal Process:

1. Letter of Demand: You must first send a formal letter notifying the tenant of the breach (non-payment) and giving them time to remedy it (usually 7 days, or 20 business days under the Consumer Protection Act).
2. Cancellation of Lease: If they fail to pay, you formally cancel the lease in writing and request them to vacate.
3. Eviction Application: If they refuse to leave, you must apply to the Magistrate's Court or High Court for an eviction order.
4. Service by Sheriff: The application must be served on the tenant and the local municipality by the Sheriff.
5. Court Hearing: The court will hear the matter and decide if eviction is "just and equitable," considering factors like elderly persons, children, or disabled persons on the property.

This process can take 3-6 months. Changing locks or cutting electricity (spoliation) is illegal and can result in the court ordering you to restore access immediately, often with a punitive cost order against you.