To all our valued clients and other interested parties, kindly be advised that the e-mail doing the rounds regarding "the De-Merit System" that purports to have been originated by our firm, is a scam. Some idiot had copied our company's logo and pasted it on his/her own ill-considered and cooked-up e-mail scam.

We can further confirm that we are currently conducting investigations into this matter, and once the fraudster has been located and identified, he/she will be prosecuted to the full extent of the law for the fraud committed by him/her against our firm.

We trust that the fraudulent e-mail has not caused too much inconvenience to our loyal clients and to the public at large. In the unfortunate event that you have received or receive the fraudulent e-mail, kindly immediately delete same. Under no circumstances should it be forwarded to any other person. Your assistance to stop the fraudulent e-mail from being viewed any further by unsuspecting members of the public, will be greatly appreciated. Warmest regards, Otto Krause Inc.

On 1 July 2002, SMD Telecommunications CC (“SMD”) had concluded a Group Personal Accident contract of insurance with Mutual & Federal (“M & F”). Such insurance provided that M & F would pay SMD agreed compensation upon the happening of a defined event / occurrence, being death or disablement of any of their managerial staff resulting from “Bodily injury caused solely by violent accidental external and visible means which injury shall independently of any other cause be the sole cause of any of the Results.”. Exceptions applicable to the section in question provided that “The General Exceptions shall not apply to this Section and this insurance shall not apply to any Occurrence consequent upon … 5. Any pre-existing physical defect or infirmity.”

On 10 October 2002 the deceased, Mr Keith Compton-James (the Chief Executive Officer of SMD), was involved in a motor vehicle accident near Bothasig, Cape Town, in which he sustained serious bodily injuries. Subsequent to being admitted to two separate hospitals on 4 separate occasions (for trauma care and treatment, orthopaedic surgery, arthroscopy and wash out of turbid fluid of his left knee, femero-popliteal bypass surgery on his left leg, treatment to his right upper leg, revision orthopaedic surgery to his right hip, a MRSA “staph aureus” infection (i.e. “hospital super-bug”) and inflammation of his left knee) and having undergone futile physiotherapy and still not being able to walk, Mr Compton-James died of a heart attack (“a myocardial infarction precipitated by a plaque rupture”) at his home on 18 May 2003.


The deceased had a known heart condition (although chronic and stable) prior to the accident, and M & F repudiated, and subsequently defended, SMD’s claim on the basis that Mr Compton-James would have died of his existing heart condition regardless of the injuries sustained in the motor vehicle accident, but not relying on the insurance policy’s Exceptions Clause in doing so.


Otto Krause Incorporated – Cape Town (E. Potgieter) represented SMD in their action against M & F in the Western Cape High Court and on 18 May 2009 Judge Dennis Davis ruled in favour of SMD ordering M & F to compensate SMD accordingly. M & F then launched an Appeal to the Supreme Court of Appeal in Bloemfontein and on 1 October 2010 the Appeal Court unanimously confirmed Judge Davis’s finding, dismissing M & F’s appeal with costs.


Click on the link provided to read the Appeal Court Judgment in this matter – its well worth the read for the insured “man on the street”!http://www.justice.gov.za/sca/judgments/sca_2010/sca10-133.pdf

Otto Krause Attorneys represented Mr. Adriaan Bekker, a retired farmer, who was acquited on the charge of murder on 3 September 2010 by Judge GF Wright in the Kroonstad Regional Court. For the full news article click on the following link: http://www.volksblad.com/Suid-Afrika/Nuus/Bejaarde-vrygespreek-na-skietdood-20100903

No one lives forever and no one wants to be a burden to their family ...

Where there is a Will, there is a way ...

Saving your family further difficulties during their time of mourning is only one call away. Do not put it off until it is too late.

During the month of September 2010, our firm is offering an evaluation service to all members of the public to determine whether you or a family member are in need of a Will or whether your existing Last Will and Testament is in need of amendment to cater for changed circumstances in your life. The evaluation service will consist of half an hour of free consultation to evaluate your current situation. Should you, after the said evaluation consultation, wish to utilise our firm's services to ensure your Will is in order, and to have peace of mind, our fees for rendering further services will be discussed and agreed upon before any costs will be incurred.

For an appointment, you can contact our Ms Karin Bekker at (011) 675-2881 or karin@ottokrause.co.za. We assure you of our best service at all times.

CRIMINAL PROCEDURE
PERSON IN CHARGE: Shaun McTurk
Complainant – Person who laid the Charge
Prosecuting Authority – The entity who prosecutes the case
Accused – Person defending the charge
1. First Appearance
The First appearance in court is usually to establish whether the State wishes to investigate the matter further, alternatively whether it is ready to proceed to trial. In the event that the State has finalised its investigation, the matter will be postponed in order for the Defense to obtain copies of the docket. The Defense is entitled in law to have copies of the contents of the docket in order for them to prepare adequately for trial.
2. Date of Trial
On the date of trial all parties must be present at court. The State will present its case and will lead evidence in order to prove the allegations made against the Defendant. The Defense will get the opportunity to cross examine any witnesses called by the State. When the State is finished with its case, it will close its case. The Defense will then get the opportunity to call witnesses and lead evidence in order to disprove the State’s case. The State will be afforded the opportunity to cross examine any witnesses called by the Defense. When cross examination has been finalised by the State, will the Defense close their case.
3. Judgment
Upon considering all evidence lead by the State as well as the Defense, the Magistrate/Judge will deliver judgment. The accused will either be acquitted, alternatively be found guilty and will a sentence be determined by the Magistrate/Judge.

DIVORCE
PERSON IN CHARGE: Carme Haupt-Fick
Divorce constitutes a final termination of the marriage between spouses and brings an end to all Common Law rights and obligations between them through the sanction of a competent Court. It leads to not only to the final dissolution of the marital relationship between the spouses, but also to the division of their debts and assets and, where dependant children are involved, also to the provision and further regulation of their future sustenance and living conditions.
The only recognised ground for a divorce is that the marriage relationship must have irreparably broken down. There must be no reasonable possibility of the marriage being restored to its original harmonious state. The process is initiated by way of Summons being issued and served on a spouse. In the event that the parties are able to reach an agreement as to the various aspects involved in the divorce, a settlement agreement will then be signed by the parties, after which it will be made an Order of Court, resulting in an expedited conclusion of the divorce. Should the parties not be able to reach an agreement, litigation and ultimately trial of the matter will follow.
Ancillary aspects to divorce proceedings include:
• General and rehabilitative maintenance towards a Spouse;
• Maintenance towards the dependant children;
• Primary residence, care of and contact with the children, and
• Parental rights and Responsibilities towards the children as determined in the Children’s Act 38 of 2005 as amended.
The reasons for the breakdown of the marriage and the resulting domestic conditions can cause emotional hardship throughout the divorce proceedings. We understand the adverse effects that divorce proceedings may have on our clients and their lives and strive to lend constant support with clear and objective legal advice throughout, whilst ensuring that our clients’ personal and proprietary interests remain protected.
We support our clients, every step of the way.

ESTATES AND ESTATE PLANNING
PERSON IN CHARGE: Karin Bekker
In this day and age, it is imperative that every person should have a Will.
When you pass away, leaving a valid Will, your estate will be divided amongst your family or the people that you wish to inherit from you.
Should you die without a Will, your property will be divided amongst your immediate family in accordance with the laws of intestate succession.
In order to attest to a valid Will, the following should be kept in mind:
• You must be older than 16 years of age and be mentally competent to make a Will.
• The Will must be in writing.
• Two people, both older than 14 years of age, must witness the attesting of the Will.
• The person attesting to the Will must initial every page thereof and sign the last page, in the presence of the witnesses.
In your Will, you can appoint an Executor of your Estate and stipulate how your property is to be divided.
The functions of the Executor entails that he/she should ensure that your estate is divided according to your wishes. If no Executor has been appointed by you, the Court will appoint one.
It is advisable to seek expert and professional advice when drafting a Will. When you attempt to draw a Will yourself, you run the risk of having an invalid Will, or same may result in unwanted consequences after your death, due to incorrect wording etc.

HIGH COURT LITIGATION
PERSON IN CHARGE: Otto Krause
The Supreme Court of South Africa has jurisdiction in Civil matters where the claim amount is in excess of R 100 000,00. The Supreme Court further has exclusive jurisdiction in matters relating to a person’s status, for example insolvency and the granting of a divorce order and/or interdict.
As a litigant, you are at liberty to approach the Supreme Court directly. Judges, however, discourage litigants from bypassing the Magistrates Courts, as this could congest High Court Rolls and so cause delays in the legal process. For this reason, Judges will only award costs on the Magistrates Court scale in matters that should’ve been instituted in the Magistrate’s Court. While the Magistrates Court is a "creature of statute" and its processes are governed by the Magistrates Court Act and its Rules of Court, the High Court has so-called "inherent" jurisdiction to hear whatever matter it wishes, with the exception of certain matters which it is statutorily not permitted to entertain.
The motion proceeding is a shorter process than the action proceeding. In motion proceedings the matter is decided on affidavits submitted by both the parties and oral evidence is not necessary at the hearing thereof. Summons is issued when a factual dispute is foreseeable and oral evidence will thus be necessitated at the trial.
In motion proceedings the parties are referred to as the Applicant and Respondent and in action proceedings as the Plaintiff and Defendant.
The litigation process is initiated by the issuing of a Notice of Motion with a supporting affidavit or a Summons with Particulars of Claim, as the case may be, by the Registrar of the Court. The Registrar will allocate a case number to the matter, after which the Notice of Motion or Summons is served on the opponent.
The Respondent and/or Defendant may oppose/defend the proceedings by delivering a Notice of Intention to Oppose or a Notice of Intention to Defend, respectively.
Litigation is a timeous process due to the fact that the parties have to exchange the necessary pleadings and only after close of pleadings, can either party apply for a trial date.

LABOUR DISPUTES
PERSON IN CHARGE: Karin Bekker
Since 1994, The South African labour market has undergone a transformation with the objective of improving general working conditions for all South Africans.
Labour disputes in South Africa are dealt with by the following organs:
• Bargaining Councils
• Commission for Conciliation, Mediation and Arbitration
• Labour Court
The Steps to be taken when a party refers a labour dispute to the CCMA are set out hereunder:
1. If you have a labour dispute relating to an unfair dismissal, you have 30 days from date on which the dispute arose to refer the matter to the CCMA and with discrimination cases, you have six months.
2. A referral form, known as LRA Form 7.11 needs to be completed.
3. A copy of the completed form should be delivered to the other party.
4. The CCMA will inform both parties of a date, time and venue of the first hearing, known as the Conciliation Hearing.
5. At the conciliation hearing, no legal representation is allowed but only trade unions and/or employer organisation representatives will attend the conciliation hearing.
6. If no agreement is reached at conciliation, the Commissioner will issue a Certificate stating that the dispute could not be resolved by way of conciliation and the Commissioner will refer the dispute to Arbitration.
7. When the dispute is referred to Arbitration, the referring party will have to complete a LRA Form 7.13 and serve a copy thereof on the other party. One has to apply for Arbitration within 3 months from the date on which the Commissioner issued the Certificate.
8. Legal representation is allowed at Arbitration.
9. The Arbitration Award made by the Commissioner, will be final and binding on all parties.

MAGISTRATE’S COURT PROCEDURE
PERSON IN CHARGE: Marthus du Toit
Plaintiff – Person instituting the action
Defendant – Person defending the action
1. Summons commencing Action.
After receiving a Summons, the options are to either defend the action by delivering a notice if intention to defend within 10 (TEN) days, alternatively, should you fail to defend the action within the time limit, then and in that event the plaintiff will be able to request the court for default judgment.
2. Notice of Intention to Defend.
In the event that the aforementioned notice is delivered to the plaintiff, you as defendant will have a further 10 (TEN) days in which to deliver your plea. The notice as aforementioned indicates to your opponent that you wish to defend the matter, and that you have a defense to your opponents claim.
3. Plea
The purpose of the plea is to admit, deny or deny with a counter version, the case that the plaintiff has presented to court. The plea is a very important document as it determines the points of dispute which will need to be resolved when the matter goes to trial. When pleading to a summons, you may also institute a counterclaim in which you must present your case to court. When you have pleaded to your plaintiff’s summons, the Latin term “litis contestatio” is used to indicate that pleadings have now been finalized or closed. At this stage the plaintiff may apply to court to have a court date allocated for purposes of trial.

MOTOR VEHICLE ACCIDENT CLAIMS
PERSON IN CHARGE: Herman Hüsselmann
Motor vehicle accidents are unfortunately a common occurrence and part of all road users' daily lives. It is common knowledge that the rate of motor vehicle accidents on South African roads is undesirably high, and in as much as we would like this not to be the case, most people at some stage or another of their lives will be involved in a road accident, ranging from minor to more serious accidents.
Damages, in a variety of forms, normally flow from motor vehicle accidents, and a typical example is damages to the body of the motor vehicle itself. Unfortunately, personal injury of the driver and passengers of the motor vehicle also frequently occur, such personal injuries ranging from medical expenses (past and future) including specialist medical treatment; funeral expenses; loss of earnings or income if a person is disabled (past and future); loss of support for a dependant of a deceased victim (past and future); and general damages for pain, suffering and disfigurement in the case of bodily injury.
Damages to the vehicle can be claimed directly from the negligent driver or his/her insurer, whilst personal injury damages must be claimed from the Road Accident Fund (RAF). The documents and information needed to lodge and formulate a claim against the Road Accident Fund can sometimes be very extensive as well as complex. This is where our firm can be of invaluable assistance to you in collecting, compiling, formulating and lodging your claim at the Road Accident Fund, and in the unfortunate event that your claim is rejected, and if there exists sound grounds for pursuing your claim, a civil action can be instituted against the Road Accident Fund to obtain a court order to compel the Road Accident Fund to make payment of personal injury damages suffered by you.

URGENT APPLICATIONS
PERSON IN CHARGE: Eben Potgieter
Three avenues exist in approaching the Supreme Court for purposes of relief in general, i.e. Summons (“Action proceedings”), Notices of Motion (“Application proceedings”) and/or Petitions. We hereinafter highlight Application proceedings, more specifically Urgent Applications.
The procedure to be followed is regulated by the Rules of the Provincial and Local Divisions of the High Court of South Africa. Rule 6 thereof stipulates that every Application shall be brought on Notice of Motion supported by Affidavit as to the facts upon which the Applicant relies. In certain very urgent matters the Application may however be brought orally. The Notice of Motion stipulates the rights of the Respondent i.e. when he needs to give Notice of his intention to oppose the matter or when the matter will be heard. The Supporting Affidavit, together with such ancillary documents as may be applicable, is usually attested to under oath by the Applicant.
Urgent Applications however do not necessarily comply with the aforementioned Rule 6-requirements as it affords the Applicant the opportunity in requesting relief on an urgent basis in thus circumventing strict compliance with Rule 6. These Applications are designed to obtain interim relief but still need to satisfy the following four (4) requirements:
1. A prima facie right must exist.
2. A well grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted.
3. That the balance of convenience favours the granting of an interim interdict.
4. That the Applicant has no other satisfactory remedy.
A Court has a wide discretion in refusing or granting the Application even if the requisites for the granting thereof have been substantially met. The Applicant therefore does not have a right to the relief sought, but rather the Court has a discretion to be exercised judicially. The Court considers important factors such as the relative strengths of the parties’ respective cases and whether any other adequate remedy is available. The Court may further grant such additional relief as it deems fit.
The legal costs involved in Urgent Applications are substantial and include not only the Attorneys fees but also the costs of an Advocate as well as Sheriff’s costs in delivering any processes.

SECTIONAL TITLES
PERSON IN CHARGE: Natasha Jackson
Sectional Title is an interesting field within the law, it is a form of ownership whereby a number of individuals can simultaneously own the piece of land on which a building/s is built, while each one of these owners individually owns a townhouse or a flat within the building. The section is the owner’s flat or townhouse and the term “Title” describes the ownership of fixed property in the form of land, or a section in a sectional title scheme. In terms of the Sectional Titles Act each owner within the scheme is liable for the payment of levies, which are determined from time to time by the duly appointed trustees of the Body Corporate. The monthly payment towards a levy includes for instance payment towards insurance, security, costs of repair, upkeep, control, management and administration of the common property.
When an owner continuously defaults in the payment of his/her levy, he is in effect being subsidised by the rest of the owners. In these cases, trustees of the body corporate are empowered by the Sectional Titles Act to approach any court for recovery of outstanding levies.
Over the past years we have developed a successful collection processes to assist Body Corporates and managing agents with the burden of the collection of outstanding levies.
The following action can be taken to recover arrear levies:
1. Summons Commencing Action
The outstanding levies are demanded from the owner by way of Summons, which further informs the owners of the consequences regarding attorneys’ costs and interest should payment not be received.
2. Default Judgment
If the owner fails to file a notice of intention to defend then Judgment will be granted by way of default. This means that the owner’s name will be blacklisted with ITC.
3. Execution
A warrant of execution will thereafter be issued and can lead to the townhouse or flat being sold in execution, should the owner fail to meet his/her obligation in terms of the Sectional Titles Act.
The value of the owner’s fixed property is greatly influenced by the payment of levies and should the collection of levies be a priority for the Body Corporate in order to protect its investment.

CONVEYANCING PROCEDURE IN A NUTSHELL
PERSON IN CHARGE: Mr. Woodrow
1. A Conveyancer is an Attorney who has passed the National Conveyancing Examination and is by law the only person who can register fixed property transfers. This is necessary to ensure the protection of the various interests that the parties have in the transaction and to maintain the high standard of land registration.
2. The Seller usually appoints a Conveyancer to attend to the transfer of fixed property, although this, like other aspects of a Sale Agreement, can be varied by negotiation between the parties.
3. Steps Towards Registration Of Transfer:
3.1 The Agreement of Sale is drawn and signed, after which it is sent to appointed Conveyancer.
3.2 The Purchaser applies for a bond loan (if applicable) and the Bank appoints its Conveyancer to simultaneously, with transfer, register the bond.
3.3 The Transfer Attorney requests the Title Deed and cancellation figures from Seller’s bond bank to cancel any and all existing bonds. The bank appoints a Conveyancer to cancel its bonds.
3.4 Transfer, Bond and Cancellation Attorneys liaise over guarantees to secure the purchase price and payment of existing loans.
3.5 Call for FICA and then draft transfer documents.
3.6 The Documents are then signed by both the Seller and Purchaser.
3.7 The following Certificates must be in place before transfer documents can be lodged at the Deeds Office:
▪ Municipal Rates and/or Body Corporate Levy Certificates;
▪ Transfer Duty Receipt from SARS;
▪ Electrical Compliance Certificate;
▪ Home Owners Association Certificate if applicable.
In each instance, applications have to be made for settlement figures and payments have to then be made before Certificates can be issued.
3.9 All role players lodge simultaneously (essential) at Deeds Office.
3.10 Matters come up on “Preparation” within 7 to 12 days of lodgement.
3.11 Registration usually takes place between one or two days after preparation.
3.12 Final accounts are drawn and payments made to various parties.

OTTO KRAUSE INCORPORATED consists of a dedicated and motivated group of Attorneys and Conveyancers ready to assist its clients to the best of their wide-ranging abilities. Having been operative within the legal fraternity for more than a decade, our team consists of a variety of professional, experienced consultants and legal advisors.

For more information, please visit our website at www.ottokrause.co.za or contact us on 011 675 2881.