With due acknowledgement to the Law Society of South Africa

NEW ADULTS – A LEGAL GUIDE 

Your rights and responsibilities as a new adult…

General Principles

Your fundamental rights

Since 1994, South Africa has a Constitution which guarantees you a variety of fundamental rights. Always remember to inquire whether in a given case your rights are protected by the Constitution.

When do you become an adult in South Africa?

In South Africa, for most purposes, you become a legal adult on your 18th birthday. This is often referred to as the age of majority.

>Why is it important to know your legal rights and responsibilities when you become an adult?

When you are 18, you have adult rights including the right to make contracts, to sue on your own behalf, and, should you choose, to live independently from your parent’s control. You obtain the right to vote at 18 years.

What are some of these “new” adult responsibilities?

IF you break the law, you will be tried as an adult and can be sentenced to prison. Because you can make binding agreements with others (called contracts), you can also be sued in your own right.

The Court System

What are South Africa’s various courts?

The hierarchy of courts consists broadly of the Constitutional Court, the Supreme Court of Appeal, the High Courts and other courts. The Constitutional Court has its seat in Johannesburg and the Supreme Court of Appeal in Bloemfontein. There is at least one High Court in each province. The ‘other court’ include magistrate’s courts and small claims courts.

What types of cases are heard by the Constitutional Court?

Constitutional Court considers only case relating to the constitution. It is mostly a court of appeal, but in exceptional case one can have direct access to the Court include the enforcement of your fundamental rights and the relations between the various organs of state. The Constitutional Court is the highest court in constitutional matters.

What types of cases are considered by the Supreme Court of Appeal?

The Supreme Court of Appeal hears only appeals. The Court considers any appeal, including those on constitutional matters. In respect of all matters not affecting the Constitution, the Supreme Court of Appeal, as its title indicates, is the final court of appeal.

What types of cases are adjudicated by a High Court?

A High Court can hear any matter, including appeals from magistrate’s courts. It is, in other words, a court of general jurisdiction. Cases before the High Court may deal with constitutional matters, serious criminal cases and civil cases where the claim exceeds the prescribed jurisdiction of the magistrate’s court.

What types of cases are considered by the lower courts?

The regional magistrate’s court presides over criminal cases of a serious nature. The magistrate’s court consisting of criminal and civil courts presides over criminal cases which are not handled by either the High Court or Regional Court, and civil matters with a certain monetary limit. The small claims court is a civil court where claims not exceeding R5 000.00 are heard.

Do I need an attorney to file a civil case in court?

An attorney is not required for an individual to file a case in court. However, it is usually best to talk to an attorney before handling a case in court yourself.

How long do I have to file a lawsuit?

The length of time you have to file a lawsuit varies according to the type of case. If you have a possible claim or want to file a lawsuit, consult an attorney as soon as possible to protect your rights.

Voting

Who can register to vote?

Any person who is 18 years of age and a citizen of South Africa may register to vote. Your name appears on the voter’s role according to your identification registration at the Department of Internal Affairs.

Where do I vote?

Your identification registration should contain accurate information regarding your address or change of address, as the address determines in which seat you are able to vote.

Income Tax

Why do I have to pay taxes?

You pay taxes to help the government raise income to meet its expenses. The revenue raised by personal and other taxes is used to provide a wide variety of services to the public. Among these are housing, security services, conservation of natural resources and education.

What are my responsibilities?

You are responsible for registering with the Receiver of Revenue and you are responsible for the payment of income tax on your income. You may have to complete an income tax return each year depending on your income. Wages, tips and other fees you get for work count as income for tax purposes. Income from investments such as interest on savings accounts also counts as income.

How are taxes usually paid?

Usually your employer withholds or takes taxes out of your pay cheque, referred to as the Pay-as-you-Earn-System and pays these to the Receiver of Revenue. By the end of the year you should have paid all or most of the tax due on your income for that year.

Where can I get help?

The Receiver of Revenue provides the forms and instructions needed to file an accurate return. For more information contact your nearest office.

Driving

Is driving a right or a privilege?

Driving is a privilege regulated by the Road Traffic Ordinances of the various provinces. Any person 18 years old or older can obtain a driving license after passing a driver’s license test.

Personal injury insurance

Should a person be injured in a motorcar accident, the Motor Vehicle Accident Fund may compensate him or her, depending on the circumstances. It is essential to consult an attorney in this event.

Motor insurance

You are under no obligation to take out insurance for damages to his or a third person’s motor vehicle. You will, however, then be personally liable for damages should you have an accident, as far as the third party is concerned if you are negligent, and will have to pay your own repairs.

Contracts

What is a contract?

A contract is an enforceable oral or written agreement between two or more people.

What happens if I signed a contract before I turn 18?

As a minor, your parents are responsible for you. Adults sometimes assist minors by co-signing a contract, e.g. loans for minors. Some contracts entered into by minors are not enforceable.

What kind of contracts will I enter into as an adult?

Some of the contracts you may enter into as an adult include employment contracts, house or car purchases, credit agreements for purchases (television, stereos, etc) rental contracts, insurance contracts, contracts for services, marriage and credit card agreements.

Does a contract have to be in writing?

Not necessarily. However, if the contract concerns immovable property, a credit agreement, etcetera, it must be in writing.

Why are written contracts useful?

When there is a written contract the persons contracting (parties) are aware of their specific responsibilities. Never sign a contract or other legal documents without understanding what the terms thereof are. If a problem arises, a written contract would offer proof of the agreed upon terms and conditions between the parties. This may be beneficial in a court of law as proof of such contract as well as the terms thereof.

What should I do if I am asked to sign a contract?

Read the contract carefully and make sure you understand all the terms thereof, cross out any parts that are not what you agreed to, and insert the parts of the agreement you want that do not appear in the written contract. Do not sign a contract with any blank space on it. Get a copy of the contract, and make sure the other party signs it.

Can I cancel any contract within five days?

Not necessarily. Only some contracts signed in your home or away from the seller’s place of business have a five day “cooling off” period.

What happens if I dont complete the contract of miss payments?

If you fail to complete the contract or miss payments, you can be sued. You will be given a chance to defend yourself and the court will then determine if the claim is valid. If it is valid, you may have to pay money for breaking the contract (damages).

Employment

The relations between employers and employees have in recent years been extensively regulated by legislation, notably the Labour Relations Act and the Basic Conditions of Employment Act. Insist on a written contract of employment and a letter of appointment. You may not be dismissed without reason. If you feel that your employer does not treat you fairly, consult an attorney specialising in labour law.

How do other laws regulate my workplace?

You can expect to work in a safe working environment. Employers may be sued for unsafe working conditions according to the provisions of the Machinery and Occupational Safety Act. The Workman’s Compensation Act provides protection for workers injured during working hours. Notify your employer immediately to protect your rights. Finally, unemployment compensation provides financial payments to individuals who have become unemployed as a result of layoffs or other specific reasons.

Marriage

How old must a person be to get married?

A person 18 or over can marry without parental consent. A person under 18 needs parental consent.

How do I get a marriage certificate?

A marriage certificate is issued by the Department of Internal Affairs and incorporated in your identity documents.

Is a wife required to take her husband’s last name?

It is customary in South Africa for a wife to take her husband’s last name (or surname as it is legally called), but it is not required by law. If the wife assumes her husband’s surname, she should change her name on her identity document, driver’s license, voter’s registration, credit cards, bank accounts and inform others with whom she does business. A women may not retain both her unmarried and married name.

If I get a divorce, how is my property divided?

The courts have the judicial discretion to decide how property obtained during a marriage should be divided upon divorce. Consult with a divorce attorney for help.

What are grounds for divorce in South Africa?

It is sufficient to show that the marriage is irretrievably broken down. Again, consult a divorce attorney for help.

Landlord/Tenant

Is a written lease is not required, but it is a good idea because a lease defines the landlord’s (owner’s) and then tenant’s rights and obligations.

What happens if I break a lease?

You may be sued depending upon the provisions of the lease. You may be liable for unpaid rent, advertising expenses, court costs, attorney’s fees, etc. Consult an attorney for help.

How much notice must a landlord give the tenant to move out of the residence?

The period of notice depends on the period stipulated in the lease, or if the contract was not in writing, a reasonable period.

Criminal Charges

If someone is arrested for a criminal offence, what can he or she expect from the arresting officer(s)?

VERY IMPORTANT: Remember that ll the rights referred to in this section are guaranteed by the Constitution, specifically section 35. Insist that these rights be explained to you, and that they be observed.

If arrested, you can expect to be searched by the police and to be detained for questioning. If questioned, you will be advised of your rights. As soon as you request an attorney, the police are prohibited from questioning you. Important rights to remember are the right to keep silent and the right to have an attorney present if you are questioned.

What basic things should a person remember if arrested?

You should remember your right to have an attorney present. Once you have identified yourself, you may refuse to make any statement or discuss the case with anyone. On the other hand, you may choose to answer questions or sign affidavits. However, any information you give can be used as evidence against you in court. Law enforcement officers can not force or threaten you into answering questions and cannot offer leniency in exchange for any written or oral statement.

How soon after an arrest must a person appear before a magistrate?

If you are arrested and placed in jail, on “initial appearance” before a magistrate must occur within 48 hours of your arrest. At an initial appearance, you will be informed of the charges against you. It will be determined whether you should remain in custody until the next appearance, or be warned or whether you should remain in custody until the next appearance, or be warned or whether bail should be granted.

What if a person cannot afford the services of an attorney?

If you cannot afford an attorney, the magistrate should advise you to contract the Legal Aid Board who will investigate whether an attorney could be appointed to represent you. In some courts a public defender system is available.

What does it mean to be released on bail?

The purpose of bail is to facilitate the freedom of an individual in exchange for an amount of money deposited with the court to ensure the individual’s appearance at the following trail date(s). The factors determining the granting of bail or not are following: the seriousness of the crime, the prospect of a conviction, the possibility of interfering with state witnesses by the accused and his previous conviction, fixed address, ownership of immovable property, family whereabouts, ability to leave the country (holder of a foreign passport) and the overall possibility of the accused not honoring his bail conditions.

Credit

How do I get a good credit rating?

There are a number of ways including: maintaining a savings account, obtaining fixed employment and using credit cards. A credit rating is intended to measure your ability to repay a debt. Lenders look at your past record of paying bills and your income or other sources of money.

What is collateral security?

Collateral security is anything of value that can be taken by the lender if you should omit or refuse to repay the loan. The lender requires property which has a value at least equal to the amount of the loan, in order for him to utilize the property to redeem the debts wher you are unable to repay the loan. There is another type of loan called an “unsecured loan” which does not require collateral security, but is based on the suer’s ability to pay (i.e. credit cards, student loans).

Can a lender have different rules for making loans to women than to men?

Lenders may only make decisions based on the borrower’s credit rating. Joint written consent is required for spouses married in community of property after the abolition of the marital power (1 November 1984) for inter alia contracts for the alienation of immovable property, entering into a credit agreement, etc