Divorce/Legal

[Martinco]

To protect the people involved I shall not use their real names.

Peter and Joan got married 10 years ago under ANC, they had 2 children and bought a house in a well to do suburb in Midrand registered in both their names.
Peter goes to the municipality and signs all the documentation to get the municipal fees etc in order.
Things do not go well and they get divorced on 15 December 2008 complete with a settlement agreement. Joan immediately packs her things and moves to a different city +- 200 Kms away.
Peter gets left in the house and after a while moves out and rents the house to a third party. At the point of separation Peter undertook to look after the interests of the house which obviously includes the municipal fees. Peter receives the rent and does the bond and other payments. In the settlement it was determined that the house should be sold asap and the proceeds divided.
Without Joans knowledge , Peter purposely * defaults on the municipal payments and Peter gets issued with a summons in May 2009 and a judgment issued against himself and against Joan as a co respondent. ( Joan is still unaware of anything being amiss as she has not received any summons or notification from anybody what so ever ) Peter in the meantime settles the issue with the municipality and requests the judgment being set aside a removal of his name from the credit bureau.
* ( The issue with the municipality hinged around a problem that they got billed for vacant land instead of built up property )

4 Days ago Joan gets a fax from Peter, from a credit bureau, stating that she now has a bad credit rating against her name as a result of the judgment.
She contacts the lawyer for the municipality and gets told that it is good enough that the summons was delivered to Peter and it is assumed that she would be informed.

My question now to the legal boffins............... Is this normal practice ?

Do you think she has a case to take to the Law Society for negligence against the lawyers for the municipality in not ensuring that she gets her summons or not even been given the opportunity to rectify the municipal accounts issue ? ( Remember, although she co-owns the house, she did not sign any documents with the municipality and was totally unaware of any problem. )

According to a friend, who is a lawyer, there is not much to do about this but to me it sounds totally wrong and unfair.
What do you think ?

[BBBEE_CompSpec]

They were married ANC. Two people in a binding contract. If both are sued out then both must receive a summons. Why did the court not request the details of the summonses?

I wouldn't only take it to the Law Society of SA, I would also seek the relevant Ombud and take a case against the Municipality and her ex husband. It was gross neglect on his part. I would have him criminally charged for conspiracy. He deliberately defeated the ends of justice when he knowingly prevented her finding out about what he did.

He cannot claim any excuses for what has happened. By keeping quiet he committed a crime. The Receiver should also be informed as he had an earning that he never declared.

Issue the case against hin to clear her name.

[Sieg]

The Law is an Ass!

[BBBEE_CompSpec]

We are all welcome to our opinions. Martinco asked a question and deserved a decent answer. That's what he got. He is always welcome to ask advice.

[Martinco]

Shaun,

Thank you for your enthusiastic reply, I think we both think alike but I do not have the legal expertise to advise Joan and hence my post.

If you were in her shoes........... how would you go about getting some form of restitution in this matter i.e. where should she start ? ( Without having to see a lawyer as she has spent a small fortune already getting divorced.)

[Dave A]

Supply the listing credit bureau with an affidavit setting out the story and request for her adverse credit report listing to be removed.

On delivery of notices (or the claimed lack of it), did she advise the municipality of her change of service address?

On the conduct of the ex - my only comment is they got divorced which tends to indicate a less than ideal relationship. Post-marital mishaps should not be unexpected.

Or far more briefly as already said - The Law is an Ass.
And sometimes so are people.

[Martinco]

On delivery of notices (or the claimed lack of it), did she advise the municipality of her change of service address?

On the conduct of the ex - my only comment is they got divorced which tends to indicate a less than ideal relationship. Post-marital mishaps should not be unexpected.

Or far more briefly as already said - The Law is an Ass.
And sometimes so are people.

Yes Dave, I tend to agree with your last statement especially when you are dealing with people that think they can rule and overpower and misuse women !

To answer your first question............ no, she did not as she did not think she had to because she had no initial dealings with the municipality at all but what really gets me uptight is the way the lawyers set about just assuming that she will be informed by his majesty to attend the case or to react to the summons. Surely it is negligence on their part ( lawyers ) not to ensure delivery of a summons especially if it is quite evident that she is not staying at her previous address any more. Also especially from the ex to not even communicate with her regarding this problem and only clearing himself from the judgment. Man.........how low can you get ?
When she asked the lawyers for the proof of delivery of the summons , she got told that it is in the "archives" and will take a long time to find. "And besides, we only need to summons either one of the party "

This sounds like BS to me !

The problem lately is that we all take it laying down especially when it comes to the law ! ( and the ex his majesties )

[sterne.law@gmail.com]

Hey, I will try and make a reply by Monday for you.

[Martinco]

Hey, I will try and make a reply by Monday for you.

Thanks, will really be appreciated !

[BBBEE_CompSpec]

I have been twice divorced. My wives tried to do the same to me. The only difference is that I am learned.

If the ITC's refuse to negotiate with her then she may take the matter to the Ombuds.

I will gladly meet with her and advise her. If she wants to go to the ombud , it can be arranged.

[Sieg]

Joan and Peter

Here's my two-cent's worth [after one of our learned contributors appeared to take exception to my previous comment

1. Joan's first priority, in my opinion, is to have the judgment removed from the credit bureauxs' records. If the judgment was obtained in the Magistrate's Courts, which I suspect it was, then she can apply to have the judgment rescinded by means of an application to Court. This is usually a simple unopposed application if she can obtain a letter from the municipality to state that the debt is paid in full, that the municipality has no objection to the judgment being rescinded and that the municipality will not oppose such an application. Once she has the court order rescinding the judgment, this is submitted to the credit bureaux who have her on record in order to "clear" her name.

2. I would then claim the costs of that application [and any other damages she may have and which she can prove] from Peter. [Peter, you rat you, you are to blame for all the ills of this poor woman's world!]

3. Whether Peter declared the income from the property in his tax return is something we do not know and we cannot simply assume that he did not so declare this income. Assumption is usually the devil's advocate. To just report him to SARS on the assumption that he did not declare the income, is just pure harassment and vindictiveness. [Even if Peter is a rat. And we have not heard his side of the story, have we?]

4. Now, on to the Municipality and their attorneys. In many cases, a municipality, just like SARS, can in fact have summons served at the address of the property, unless the rate payer has informed the municipality otherwise. Once again, before we just jump to conclusions and want to "report the municipality's attorneys to the Law Society", let us first establish whether legally the municipality was entitled to have the summons served on Joan, as a co-owner and therefor as a co-ratepayer, at the address of the property concerned. [They may have that right in terms of the Municipal Systems Act or similar Law.] One must bear in mind that in terms of the Rules of Court, service of a court process does not necessarily have to be done on the defendant in person. I venture to guess that the attorneys for the municipality acted squarely in accordance with the law. And, as a matter of interest, the "Association of Law Societies of South Africa" has no disciplinary powers. That power rests within the Provincial law society of which that particular attorney is a member.

Sieg

[Martinco]

I will gladly meet with her and advise her. If she wants to go to the ombud , it can be arranged.

Thanks for the offer Shaun, I shall communicate this with her. ( Just a bit of a problem with distance, but I guess email would work as well ? )

I would however just like to wait a while to see what the general concensus from the other people is.

[sterne.law@gmail.com]

I would just like to add 1 thing of importance to Siegs post.
Firstly he correctly addresses the issue of the judgement via rescinding. This is a relatively painless and inexpensive process. More importantly it takes care of one of the more pressing problems that has arisen. My point though is that you need to remove emotions from the equation. Set down on paper what you want to achieve. Obviously the judgement exposure to further risk etc. These are the objectives that are essential and exclude emotion. The second part is more important, there is hurt and anger amongst many other emotions and this gives rise to the desire to get something back. Please do not get me wrong, I am not advocating a concept of letting sleeping dogs lie, there are some battles to fight and some to walk away from. You need to weigh up the costs, not only financial but more importantly menatal and emotional costs of any form of fighting or litigating. So unless you feel that the costs of obtaining vindication exceed the costs, both financially and emotionally, of the fight it is best to let it be. In particular, because this is a divorce related issue, the emotional draining could be immense.
This is a very difficult concept to teach a client, but it is irresponsible of any attorney, legal advisor or such forth not to point this out to a prosepctive client, as it is not they who have the side affects of protracted litigation in their laps.
While making your list, feel free to look at alternative forms of creating havoc, if you so desire, the SARS action, as mentioned by Sieg, is normally a fairly profitable form of vindication.

[Dave A]

I believe Sieg and Anthony have pretty much nailed it.

[Martinco]

While making your list, feel free to look at alternative forms of creating havoc, if you so desire, the SARS action, as mentioned by Sieg, is normally a fairly profitable form of vindication.

Just to make sure........there is no way that SARS can address Joan for any payment of tax on part of the rental income as she did not collect any of this and had been divorced for the major part of the rental period , right ? Although if you think about it , she did benefit as the house was only sold 3 weeks ago and they are sharing the proceeds. Hell, the law is complicated !

Further , I would like to thank ALL the participants to this post as one really feels left out in the cold if you have nobody to lean on , especially if the problem is close to your heart.

A couple of things came to mind: Hire a lebanese ( appologies to the lebanese members ) to break some knees, buy some poison, clean the rifle etc. but I think good sense is prevailing !
Ultimately the SARS deal sounds the most likely as I have a gut feel that this income was not declared. Do they still pay 10 % for this type of info ?