Tim van Rooyen & Associates - News, articles and cooperation

Articles

Unlawful arrests

8 months ago

What Are Your Rights?
The detained or accused person, who is arrested for allegedly committing an offence, has the right to remain silent and not to be compelled to make any confession or admission that could be used in evidence against that person. Due to the presumption of innocence, every person is regarded as innocent until properly convicted by a court of law. An accused person does not have to prove that he is innocent. The burden to prove the guilt of the accused rests on the state.

An accused can never be forced to testify; an accused can remain silent even if his answers would not be self-incriminating. A person who exercises his right to silence at his trial should accordingly not be penalised for the exercise of the right as such; no adverse inference should be drawn against his decision not to testify.

You have the right to:
 

Legal representation

A fair trial

Have a public trial before an ordinary court of law

Bail

Be informed of the charges against you

A fair and impartial hearing before a court of law


At Tim van Rooyen & Associates 
We provide expert criminal defence services and can help you when you find yourself on the wrong side of the law, for example:

 Bail Applications ( Police bail and formal bail applications ) ,  need to get out of custody urgently? We provide professional services in getting you out of custody and are available 24/7.  

Drunk and Driving, we are experts in litigation when you have had a bit to much. 

Criminal Litigation, we provide professional and experienced criminal litigation attorneys that can assist you in protecting your rights and defending you passionately.   

Drinking and Driving in South Africa

8 months ago

1. You will be arrested for being over the limit
Arrive Alive states that the legal alcohol limit of 0,05g/100ml is exceeded after just two standard beers.
If you are suspected of driving over the limit, you will be Breathalysed.

2. Your blood will be taken
If the Breathalyser tests positive, you will be taken into custody and sent for further testing at an alcohol testing centre.
A registered nurse will take a blood sample from you. The sample will be securely stored and transported by the police to a laboratory.

3. You will be detained
Once you have been arrested you will be taken to a police station, where you will be detained in the holding cells for at least four hours to sober up.
A docket will be opened and you will be allocated an investigating officer who will follow up your blood test results.
Now would be a good time to alert family or friends to your arrest, if you haven't done so already. If you do not have a phone, you will be permitted to use one at the station. This will also be the best time to have my number on your phone or to call me for assistance.

4. Bail
The bail amount for driving under the influence varies depending on the jurisdiction of the police station.

5. You car will not be impounded
If you have been arrested for drunk driving, you car will be taken to the police station. Your keys will be held and returned to you once you have been processed and paid bail.

If you ever find yourself or a loved one in this situation you can call me on 0817874404 to assist you through this process.
Tim van Rooyen & Associates Attorneys Port Elizabeth

Divorce Law

8 months ago

A divorce action is instituted by the issuing of a summons. You can divorce in either the Regional Court of the Magistrate Court having jurisdiction in your area or in the High Court. To start the divorce process you need to serve a Summons. A divorce summons is unique in that it must be served personally on the defendant by the sheriff of the court. 

A court has jurisdiction in a divorce action if one or both parties are:

domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or

ordinarily resident in the area of jurisdiction of the court on the said date and has/have been ordinarily resident in South Africa for a period of not less than one year immediately prior to that date.


There are typically two types of divorces, the contested or opposed divorce and the uncontested or unopposed. The latter type of divorce is the best and most cost effective for all parties concerned. An uncontested divorce can be finalized in as little as 4 weeks. If a divorce is contested it may take between 2 - 3 years, but most contested divorces do settle long before they go on trial.

In South Africa, the marital regime of the parties determines how the assets will be divided upon dissolution of the marriage, the assets being those at the time of the divorce. In South Africa, we have a ‘no fault’ system of divorce, meaning that a divorce will be granted if one of the parties believes that there has been an ‘irretrievable breakdown of the marriage relationship’ and that there are no reasonable prospects of restoring it. Therefore, a marriage can be dissolved even if one of the parties does not wish to get divorced.

Civil marriages, civil unions and those religious marriages conducted by registered marriage officers can only be dissolved by order of the court. The spouse wishing to end the marriage must issue a summons against the other spouse, stating that the relationship has broken down, that there is no reasonable prospect of restoring the relationship and which matrimonial property regime governs the marriage. The summons must make provision for the division of the estate, either stating that the parties have entered into a prior agreement or asking the court to divide the joint estate or enforce the provisions of the ANC. Parties must also set out what the arrangements are with regards to any children born or adopted during the marriage to edit.

Getting divorced is never easy, please feel free to consult with us to see how we can help you through this difficult time

Steps to getting a Divorce in South Africa

8 months ago

There are only two grounds for divorce, namely the:

irretrievable breakdown of the marriage; or

mental illness or continued unconsciousness of one of the spouses.

Examples of the irretrievable breakdown of a marriage as a ground for divorce include:

the spouses not living together for a continuous period of one year;

abuse towards the spouse or the children;

adultery;

habitual criminality;

drunkenness or drug addiction; or

loss of love and affection between the spouses.

Divorce is not based on fault and it is not important who caused the marriage to end.

What will happen to the children upon divorce?

Arrangements regarding the children born from the marriage, such as with whom the children will stay after the divorce and maintenance, can be agreed upon by both spouses.

If no agreement can be reached between the spouses, the court will make the decision regarding the children after considering the circumstances of the matter, together with the observation and recommendations by a Family Advocate.

How will the property be divided upon divorce?

Division of property can be agreed upon by both spouses.

If no agreement can be reached between the spouses, the property must be divided according to whether the spouses were married in community of property or out of community of property (with or without the accrual system).

The court has a discretion to divide the property in any manner it deems fit when misconduct can be proven against one of the spouses. For example, if one spouse abused the other spouse and such abuse is the cause of the divorce, the court may decide to divide the property in such a way that the abusing spouse gets less than what s/he would have been entitled to.

How can a person get a divorce?

Only a High Court or Regional Court can grant a divorce.

A spouse who wants to get a divorce starts the procedure by serving a summons on the other spouse.

The other spouse can either agree to the divorce or defend the divorce.

A professional, such as an attorney, will be able to assist a spouse with the following:

serving and filing of a summons;

defending a divorce;

division of the property;

care, contact and maintenance in respect of the children; and/or

spousal maintenance.

GLOSSARY OF TERMS:
FAMILY ADVOCATE: an institution that assists with family matters, such as divorces, and makes recommendations in respect of children’s best interests.

MARRIAGE IN COMMUNITY OF PROPERTY: there is one estate between a husband and a wife. Property and debts acquired prior to or during the marriage are shared equally in undivided shares (50%). Both spouses are jointly liable to creditors. This marital regime automatically comes into existence unless another regime is selected.

MARRIAGE OUT OF COMMUNITY OF PROPERTY WITHOUT THE ACCRUAL SYSTEM: the spouses have their own estates which contain property and debts acquired prior to and during the marriage (“what is mine is mine and what is yours is yours”). Each spouse is separately liable to his/her creditors. Prior to the marriage, an ante nuptial contract must be entered into to indicate that the marriage will be out of community of property.

MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH THE ACCRUAL SYSTEM: this is identical to a “marriage out of community of property” but the accrual system will be applicable. The accrual system is a formula that is used to calculate how much the larger estate must pay the smaller estate once the marriage comes to an end through death or divorce. Only property acquired during the marriage can be considered when calculating the accrual. The accrual system does not automatically apply and must be included in an ante nuptial contract. 

PROPERTY: all assets owned by a person, such as a house, vehicle and money.

Should you require more information you are welcome to give us a call. Time van Rooyen & Associates