Category Archives: Defended Actions

07 Jul

4 Reasons Why A Debt Collection Attorney Is Better Than An Agency

Your business is in a spot of trouble; your debtors are yet to pay their debts, and time is of the essence. Many of you may want to avoid the trouble of using a debt collection attorney and rather consider the cheaper option of a debt collection agency. Here’s why you might want to stop and consider this choice a little more carefully.

Repetition Repetition 

A debt collection agency is likely to follow the exact same process as yourself; contacting the debtor telephonically and issuing letters of warning. If this has not resulted in payment, why would it be any different if a debt collection agency performs the exact same function? It would not only be a waste of money, but it would just prolong the issue. At the end of the day an agency will eventually make use of debt collection attorneys themselves.

Illogical Fear Of Courts 

Many people fear approaching a debt collection attorney because of the realisation of having to go to court. Most of the time the debt collection attorney will head all legal action, requiring little effort from the plaintiff. Aside from providing important information and making an appearance in court, all other duties will be undertaken by the debt collection attorney.

A Debt Collection Attorney Has More Power

By taking the matter to the court, the issue is resolved quickly, especially when using an experienced attorney. By enforcing the state’s hand in dealing with the matter, a final decision made in court will mean that the debtor will have to pay his/her dues or face harsh restrictive credit measures, fines or worse.

Costs 

The belief is that debt collection attorneys charge more than debt collection agencies. This is often true, but both parties will charge fees according to the length of the debt collection process, hourly rates and flat rates. Additionally, both agencies as well as attorneys are admissable to receiving a portion of the debt owed. Because the legal profession is so time dependent, it is in the attorney’s best interest to reach a conclusion with regards to the case as fast as possible, costing you or your business less.

Make sure that you contact a debt collection attorney as soon as a debtor shows signs of protracted nonpayment. Keep an eye on the Ivan Zartz Attorneys blog page where our next blog will highlight the signs that may signal your need for a debt collection attorney.

For the services of the best debt collection attorney in  South Africa, contact Ivan Zartz Attorneys today.

15 Jun

Debt Collection And Condictio Indebiti

What happens when an individual or organisation makes a payment to another party by a mistake and expects repayment for services not rendered. This classic case of debt collection is termed Condicto Indebiti in the legal world, and certain requirements have to be met in order for a plaintiff to hold a defendant responsible for paying back money for services not rendered.

Mistaken Payment 

When a payment is made by mistake to an organisation or individual the process that happens most often is a form of unofficial mediation whereby the party who has made the mistaken payment approaches the payee. Often, and when providing evidence of a mistake, the payee will likely return the money to the benefactor. However, what happens when the payee refuses to make a repayment?

Condictio Indebiti

A case of condictio indebiti debt collection is different from a normal case of debt collection. Debt collection follows when somebody has rendered a product or service and has not received payment. With the case of a mistaken payment, the debt collection process (in the event that the defendant in a litigated case is not willing to repay) needs to be carried out when certain requirements are met. These requirements are:

  • That the defendant has received a particular amount of money
  • That the plaintiff has paid that particular amount of money
  • That there is an adverse effect of causality between the two parties (the defendant benefits where the plaintiff suffers)
  • The payment has to have been made by a mistake or without an actual legal reason for payment
  • And lastly, that the error on the part of the plaintiff was excusable

When all of the above conditions have been met, and there is no way in which common law for particular cases has been challenged, the payee (defendant)  is responsible for paying back monies owed.

Although not a case of debt collection, the similarities between cases of debt collection and condictio indebiti often mean that debt collection attorneys are more than experienced enough to assist clients in this regard.

To find out more about our strict measures of debt collection contact Ivan Zartz Attorneys today.

13 Jun

Marriage and Property Law

Did you know that a property contract agreement pertaining to property law can be overruled by agreements made in the marriage contract?This can have far-reaching consequences if couples are unaware of the outcome regarding the sale of a property when married or after a divorce. It is important that couples realise, before making their vows, that doing so can change the outcome of a property agreement.

In Community of Property

In Community of Property is an easy law to understand. It basically means that any assets that either one of the spouses owns during or before the marriage vows are made belongs to both spouses equally. This means that in the event of divorce the sum of both assets will be divided as equally as possible, while during the event of death, the living spouse will have ownership of all the marriage assets. This agreement is the most repudiating with regards to property law and the individual ownership before marriage.

Anti-nuptial Contracts and Property

An anti-nuptial contract is very different from the Community of Property rule. In the case of anti-nuptial agreements, spouses can agree to accrual or not. Accrual means that any assets made during the marriage period will be shared equally in the event of divorce. However, any property or assets owned by any one of the spouses before marriage strictly stays in that individual’s name unless agreed on the anti-nuptial contract otherwise.

Without accrual means that all property and assets, whether accumulated during the time of marriage or not, is owned by the individual in whose name the assets are in. Without accrual can be problematic in the event that the other spouse helps to pay for a particular asset, and how a particular asset is shared needs to be expressed within the contract.

With regards to property, couples must think long and hard as to their choice in marital contract. As with any agreement, we cannot predict the future, and agreements need to be made now to safeguard individuals in the case of divorce and/or death. A hasty decision may supercede the common property law in any event.

For more information regarding property law, please contact Ivan Zartz Attorneys as soon as possible. Furthermore, take a look at our blog page to peruse our latest articles.

 

 

25 May

International Arbitration Bill: What It Means For Arbitration In SA

The International Arbitration Bill has been passed on to parliament, and will most likely be approved. This means that we may be subject to new International Arbitration Law within the next few years. What does this mean for South Africa, and how does it in any way affect  mediation in the legal sense?

The South African courts have gone a long way in promoting mediation as an alternative form of dispute resolution between parties, especially regarding commercial interests. Arbitration allows parties to formally settle disputes in private (where the arbitration does not include the state), saving businesses a lot of money that would otherwise be spent on legal fees. Additionally, arbitration reduces the pressure that courts and legal professionals experience in alleviating the vast number of commercial dispute resolution cases.

Old Arbitral Procedures

International arbitral procedures, alternatively, has always been an issue within the profession. This is because cases of international arbitration fell within the limits of the outdated Arbitration Act, No 42 of 1965. With the new International Arbitration Act in place, international arbitral procedures will be distinguished from domestic arbitration, and will be governed by as per UNCITRAL Model Law set out in the New York Convention.

New Arbitral Procedures

Although the force of law will still be maintained by executive powers within South Africa, arbitral procedures between international parties will be governed by the laws outlined in the UNCITRAL Conciliation Rules, essentially freeing up the local judiciary and offering commercial parties to settle disputes on their own terms. With the Act in place, foreign arbitral awards will not require government authorization with regards to their enforcement. Additionally, arbitral awards will need to be made an order of the court where parties are acting in good faith. They are not required to make an order of the court if the subject matter is not arbitrable in South Africa.

The new Act, some may say, has been a long time coming, and will certainly make South Africa an inviting location for international dispute resolution.

If you require the services of a dispute resolution attorney or a legal professional with experience in mediation and arbitral procedures, then make sure you contact Ivan Zartz Attorneys as soon as possible.

For more information regarding family law dispute resolution take a look at our dispute resolution page here.

19 May

Be Careful Of Illegally Obtained Information

Although a legal professional will know exactly what constitutes as illegally obtained information, some of these views are lost on the layman who may not understand the implications of possessing information that was illegally obtained. Take a look at what constitutes illegally obtained information, and make sure that you know of the implications should your illegally obtained information be brought to light in court.

The court will expect both the defendant as well as the plaintiff to produce evidence that has a bearing on the case at hand. However, during cases involving divorce as well as child custody in South Africa, either one or both parties often believe that their partners or ex-partners will withhold information that is critical to the trial. Some feel that it is necessary to “self-help”, and find evidence or information that the other party may be hiding from the court.

How they come about this information may be described as theft by the other party. In such cases, not only would the individual’s credibility be questioned in court, but they may even be found guilty of committing a criminal offense. Some of the actions that are seen as criminal involve illegally accessing electronic devices, illegally accessing a person’s online and bank accounts, contacting an employer/colleague/associate to find out information regarding the partner/ex-partner and divulging information about an ongoing court case, and in certain events breaking and entering the premises or workspace of a partner/ex-partner. Taking documents and hard-copy information made out to the partner/ex-partner is also considered theft if done without their knowledge and approval.

How to avoid such a situation is simple. If an individual suspects that the partner/spouse/ex-partner is withholding information that is critical regarding the court’s proceedings, then the individual must bring such claims to the court’s attention. It is the duty of solicitors, attorneys, and sheriffs of the court to follow up on claims and gather evidence through the proper (and legal) channels. If illegally obtained information is brought to a family law attorney regarding a case of divorce or child custody in South Africa, the attorney is obliged to turn the evidence in at court, and notify the spouse/ex-spouse’s attorney about the information.

If you require any information regarding illegally obtained information with cases regarding child custody law and family law, make sure you contact Ivan Zartz Attorneys as soon as possible.

Take a look at how Ivan Zartz Attorneys is the most well-known child custody practice in South Africa.