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Monday 08:30 - 16:00 Tuesday 08:30 - 16:00 Wednesday 08:30 - 16:00 Thursday 08:30 - 16:00 Friday 08:30 - 15:00

Bowden-Gilfillan & Scholtz Inc, 153 Cape Road, Mill Park, Port Elizabeth (2026)

04/09/2026

DON’T IGNORE THE LETTER

Receiving a letter of demand can be stressful. You may feel angry, overwhelmed or convinced that the person making the demand is simply wrong. But one thing you should not do? Ignore it.

A letter of demand is not a court order. It does not automatically mean that the person making the demand is correct, nor does it mean that you have “lost” the dispute. It is generally a formal notice setting out a claim and giving you an opportunity to resolve the issue before legal proceedings are instituted.

The underlying issue could be anything from an unpaid debt or alleged breach of contract to damage to property or non-performance of an obligation. Ignoring the letter, however, does not make the problem disappear. In fact, it can make matters more complicated and potentially more expensive. If legal proceedings follow, you may find yourself dealing with additional legal costs and, depending on the circumstances and the outcome, a possible adverse costs order.

A letter of demand can also be an opportunity. It identifies the other party’s version of events, sets out what they believe you owe or what they say you have done wrong and explains what they want you to do to remedy the situation. This can help identify the actual issues in dispute and create an opportunity for communication and settlement before matters reach court.

The demand is only one side of the story. You may have a valid defence. The amount claimed may be incorrect. You may already have paid. The contract may provide a different remedy. There may be facts or circumstances the other party simply does not know about. This is why your response matters.

A well considered response can dispute an incorrect claim, provide supporting information, propose a solution or open the door to settlement. Sometimes, the right legal advice at the “letter of demand stage” can prevent a dispute from becoming a costly litigation battle.

02/09/2026

Relocating with Children Outside South Africa

Relocating overseas can be an exciting opportunity for a parent, but when minor children are involved, it is not a decision that can simply be made unilaterally.

Under the Children’s Act, a parent will generally require the consent of the other parent before taking a child out of South Africa. Having primary care of a child does not, by itself, give a parent the right to relocate internationally without considering the other parent’s rights and responsibilities.

The other parent refuses to consent:

A refusal does not necessarily mean relocation is impossible. If the parents cannot reach an agreement, the parent wishing to relocate may approach the High Court for an order authorising the relocation. The court’s overriding consideration will be the best interests of the child.

The court may consider factors such as: the reasons for the proposed relocation, the child’s relationship with both parents, current care and living arrangements, the impact on the child’s relationship with the parent remaining in SA, existing contact arrangements and how these may change, schooling and educational opportunities, accommodation circumstances, employment opportunities for the relocating parent, family or other support available in the proposed country and practical arrangements for maintaining meaningful contact with the parent remaining in SA.

There is no automatic rule that relocation will be permitted because one parent is the primary caregiver. Equally, there is no automatic rule that it will be refused because the move may make contact more difficult. Each case turns on its own facts and what is in the best interests of that particular child.

A parent should also not remove a child from SA secretly or in breach of another parent’s rights or a court order. Unilateral removal can result in urgent court proceedings and serious consequences.

If you are considering relocation, it is important to plan carefully as the proposed move may affect the child’s entire family life and relationships.

31/08/2026

What is the Accrual System?

When getting married, couples need to determine which matrimonial property regime will apply to their marriage. One option is to marry out of community of property with the accrual system. In simple terms, the accrual system allows spouses to keep their estates separate during the marriage, while providing for a fair sharing of the growth in their estates when the marriage ends.

If you are married with the accrual system, you generally own and manage your own assets and remain responsible for your own debts during the marriage. However, when the marriage ends, whether through divorce or death, the growth in the spouses’ estates is compared.

The spouse whose estate has grown by less receives a claim against the spouse whose estate has grown by more. The purpose is to share the increase in wealth accumulated during the marriage, rather than simply dividing everything owned by the spouses.

Swipe for example ➡️: Spouse A has a net estate of R200 000 and Spouse B has a net estate of R100 000. These amounts are known as the commencement values. Several years later, when the marriage ends A’s net estate is worth R1 000 000 and Spouse B’s net estate is worth R500 000.

A’s estate has grown by R800 000, while B’s estate has grown by R400 000. The difference in the growth is R400 000. Generally, B would therefore have an accrual claim equal to half of that difference: R200 000. B does not automatically receive half of A’s assets. Instead, there is a monetary claim based on the difference between the growth of the two estates.

What about assets you already owned?

The assets you bring into the marriage are generally taken into account when determining your commencement value, rather than simply becoming part of the other spouse’s estate. The terms of your Antenuptial Contract (ANC) can have a significant effect on what is included or excluded from the calculation and can also provide for specific assets to be excluded from the accrual. Inheritances, legacies, third-party donations and damages for personal injury or defamation are generally excluded.

28/08/2026

Why Does My Attorney Always Say “It Depends”?

You ask your attorney what seems like a straightforward question: “Can I do this?”, “Will I win?” or “Can they do that?” You may expect a simple yes or no. Instead, you often hear: “It depends.”

It can be frustrating. But there is an important reason for this answer: every legal matter has its own set of facts, circumstances and evidence.
What may seem like a straightforward legal question can have a very different answer depending on what actually happened. The wording of a contract, the conduct of the parties, the evidence available, the legislation that applies, previous court decisions and the remedy being sought can all affect the legal position.

For example, two people may ask whether a contract can be cancelled and expect the same answer. However, the answer may differ depending on the terms of the particular contract, whether there was a breach, whether that breach is material, what the parties agreed regarding cancellation and what has happened since the breach.

The law cannot always be separated from the facts. Even legislation must often be interpreted in context. Courts do not necessarily look at one sentence or provision in isolation. The wording, context and purpose of the legislation may all be relevant when determining how it applies to a particular situation.

This is why two clients can ask what appears to be exactly the same legal question and receive completely different advice.

“It depends” does not necessarily mean that your attorney does not know the answer. In many cases, it means the opposite. Your attorney understands that the correct answer depends on facts that must first be considered.

Attorneys also have professional obligations when advising clients about their prospects of success by providing an honest and accurate opinion rather than simply telling a client what they want to hear.

So next time an attorney says “it depends”, it may not be an attempt to avoid giving you a straight answer but rather first needing to consider the facts.

In our law, the answer is often not a simple: “YES” or “NO”.

Most times it really does depend😉

26/08/2026

What happens when someone who owes you money passes away?

When a person passes away, their debts do not simply disappear. The deceased’s assets and liabilities are generally dealt with through the administration of the deceased estate. The person appointed to administer the estate is the Executor (or, in certain circumstances, a representative appointed by the Master of the High Court). The Executor is responsible for identifying the deceased’s assets and liabilities, collecting money owed to the estate, considering claims against the estate, paying valid debts and, ultimately, distributing what remains to the beneficiaries.

But what does this mean if the deceased owed YOU money?

Being a creditor of a deceased person does not automatically mean that you will be paid. You generally need to lodge your claim against the estate and provide sufficient proof of the debt. This could include a written agreement, acknowledgement of debt, invoices, proof of payment, bank records, emails, WhatsApp correspondence or other documents demonstrating that the money is legally due and payable.

Creditors should pay attention to the notices published by the Executor calling upon creditors to lodge their claims and ensure that their claim is submitted within the required period. The Executor has a duty to properly administer the estate and cannot simply pay every person who says they are owed money. The Executor must consider whether the claim is valid, legally enforceable and supported by sufficient evidence. A claim may therefore be disputed or rejected if the Executor believes that the debt has not been established.

But rejection does not necessarily mean the end of the matter.

If you believe your claim has been wrongly rejected, you may take further steps, including instituting legal proceedings against the estate. The appropriate procedure will depend on the nature of the debt, the circumstances of the estate and the reason for the rejection.

24/08/2026

Insurance Claim Rejected or Delayed?

You pay your monthly insurance premiums because you expect your insurer to cover when you claim. But what happens when your claim is rejected or months pass without a payout?

Your insurance policy is a contract, which consists of the policy schedule and policy wording. These must be read together. The schedule records the specific terms applicable to you, which may include the insured property, sum insured, excess, cover selected and endorsements. The policy wording then sets out the conditions, exclusions, limitations and method used to calculate the insurer’s liability.

Every insurance policy may contain its own internal time limits. The policy wording may specify how long you have to submit a claim, how long the insurer has to assess or respond to the claim and how much time you have to lodge a complaint, challenge a repudiation or dispute the amount offered. Missing these contractual time periods can have serious consequences.

What if your claim is rejected?

Under the Short-Term Insurance Act and the Policyholder Protection, insurers are required to maintain effective claims management processes and treat policyholders fairly. If your claim is repudiated, you may ask for the decision in writing, together with detailed reasons and the specific policy provisions relied upon.

What if the insurer simply delays?

An insurer is entitled to investigate a claim, particularly where the circumstances are complex. However, claims must be handled within a reasonable period and insurers must have procedures dealing with expected timeframes, delays and communication with claimants. If you have supplied everything requested, you may demand a written explanation for the delay.

What can you do to speed this up?

Obtain your complete policy wording, schedule and endorsements.
Request the insurer’s decision and calculation in writing.
Challenge any exclusion, deduction or reduction that is inconsistent with the wording of the policy or schedule.
Escalate the complaint through the insurer’s internal complaints process.
If unresolved, approach the appropriate ombud or obtain legal advice.

21/08/2026

Who Pays for the Boundary Wall Between Neighbours?

If a wall sits on the boundary line between two properties, it is presumed to be a shared wall. Meaning that both neighbours own it equally. However, this can be challenged. So, before sending your neighbour an invoice for half the wall, there are a few things to consider:
Firstly, it may be necessary to determine who owns the wall. This can depend on where the wall is situated. Usually, the boundaries of a property are recorded and kept by local authorities. If there is a dispute about where the boundary lies, a professional land surveyor may need to be consulted.

If there is an existing boundary wall which is in a reasonable condition, your neighbour generally cannot simply decide that they want a much more expensive wall and then expect you to pay half. For example: Your existing wall is perfectly adequate. Your neighbour decides they want a 2.4m architectural masterpiece with electric fencing, decorative pillars and fancy lighting. They cannot simply send you a bill for 50% of the upgrade. The fact that you share a boundary does not automatically make you responsible for whatever improvements your neighbour would like to make. There may, however, be other legal considerations including municipal requirements, title deed conditions, servitudes, building regulations and the precise position of the boundary.

But what if the existing wall needs to be repaired?

That is a different question. If a boundary wall requires necessary maintenance or repair, the circumstances may justify contributions from both neighbours particularly where the structure serves both properties. However, the exact position depends on the circumstances and any agreement between the parties.

What if my neighbour builds the wall on my property?

A neighbour cannot simply move the boundary because they have decided that their garden needs another 2m. If you believe a wall has been built over the boundary, the answer is not to take the law into your own hands and start knocking it down yourself. First establish where the actual boundary lies. A surveyor’s report can be extremely important in resolving a dispute of this nature.

19/08/2026

Can I Change My Child’s Surname Without My Ex Being Present?

Changing a minor child’s surname is governed by the Births and Deaths Registration Act. The law does not require both parents to physically attend Home Affairs in every case. However, where the child is registered under the father’s surname and the father has parental rights and responsibilities, his written consent may be required, depending on the circumstances. Ie. where the parents’ marriage has been dissolved and the mother has remarried or resumed a surname she previously used, the father’s written consent is generally required unless a competent court grants an exemption from that consent.

There is, however, an important exception: Where the mother has sole guardianship of the child, the natural father’s written consent is not required in the circumstances contemplated by section 25(1)(b) and (c). There is an important distinction between care (otherwise known as custody) and guardianship. A parent having primary care of a child does not automatically mean that they have sole guardianship. That is why it is important to look at the actual divorce order other court order before assuming that consent is unnecessary.

What if my ex refuses to consent?

A refusal by the other parent does not necessarily mean that the surname can never be changed. Section 25 makes provision for a parent to apply to the Director-General for an alteration of a minor’s surname where there is a “good and sufficient reason” for the proposed change. Depending on the circumstances, it may therefore be necessary to approach a court for appropriate relief, including where an exemption from the other parent’s consent is required.

What if the father has disappeared?

This is (unfortunately) another common situation. If the other parent cannot be located, refuses to cooperate, or has had no meaningful involvement in the child’s life, do not simply assume that you can change the surname without following the legal process. The appropriate procedure will depend on the particular circumstances and the basis on which the surname change is being requested.

17/08/2026

HOW MUCH MAINTENANCE MUST I PAY?

You may have heard that a parent must pay 50/50. But that is not how maintenance works.

It depends on two things: the child’s needs and the parents’ means. Under section 15 of the Maintenance, both parents have a joint obligation to support their child. Their respective contributions are apportioned according to their respective means. The maintenance court must ultimately determine an amount that is fair in all the circumstances.

The child’s needs can include much more than groceries.
Maintenance can include: clothing, accommodation, school fees and educational expenses, medical expenses, transport, extramural activities, childcare and other reasonable expenses necessary for the child’s proper living and upbringing.

So, does the parent who earns more automatically pay everything?

Not necessarily. The court looks at the financial position of both parents, as well as the reasonable needs of the child. The contribution is generally apportioned according to the parents’ respective means.

For example, if a child’s monthly needs are R10,000 and Parent A earns R30,000 while Parent B earns R20,000, their combined income is R50,000, meaning Parent A earns 60% and would contribute R6,000, while Parent B earns 40% and would contribute R4,000.

There is no one-size-fits-all percent.

What if I already pay for things directly?

This is important. A parent may contribute towards a child’s needs in different ways. Ie. paying school fees, medical expenses or other expenses directly. However, you should not simply decide on your own that these payments mean you can reduce an existing maintenance order.

If there is already a maintenance order in place, it must be complied with unless it is formally varied.

What if I cannot afford the amount I’m currently paying?

Your financial circumstances can change. If an existing maintenance order has become unaffordable, you can apply to have the amount varied. Similarly, a parent receiving maintenance can apply for an increase if the existing amount is no longer sufficient.

13/08/2026

CAN YOU CHANGE THE LOCKS, SWITCH OFF THE ELECTRICITY OR MOVE OTHER PAYING TENANTS IN TO FORCE A TENANT TO LEAVE?

No. A landlord cannot take the law into their own hands and lock a tenant out, remove their belongings or interfere with essential services in an attempt to force them to vacate. Section 26(3) of the Constitution provides that no person may be evicted from their home without a court order made after considering the relevant circumstances. Forcing tenants out by making their living circumstances intolerable constitutes an illegal eviction.

Even where rent is seriously in arrears, the answer is not to lock them out, cut off the electricity or otherwise interfere with their living circumstances. The landlord must follow the proper legal process as provided for in the Prevention of Illegal Eviction from and Unlawful Occupation of Property Act (“PIE Act”) by establishing whether the lease can be cancelled, give the required notices and, where necessary, approach the court for an eviction order.

Changing the locks, denying access to the property or deliberately interfering with essential services to force a tenant to leave can amount to unlawful self-help.

A tenant who has been unlawfully deprived of possession may approach a court on an urgent basis for a mandament van spolie (spoliation order). The purpose of a spoliation order is essentially to restore what was unlawfully taken away first, without the court immediately deciding who is ultimately right about the lease, rent or eviction. This means that a landlord who locks out a tenant may find themselves having to restore the tenant’s possession, potentially on an urgent basis and with a costs order against them.

Should a landlord have removed the tenants’ belongings from the property and they are lost, destroyed or damaged, a landlord may open themselves up to a separate claim for damages over and above a spoliation order.

THE GOLDEN RULE: You own the property. You do not own the right to remove the tenant without due process.

A proper eviction may take time, but an unlawful lockout can create an even bigger legal problem for the landlord.

Bowden-Gilfillan & Scholtz Inc

04/09/2026

02/09/2026

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Monday	08:30 - 16:00
Tuesday	08:30 - 16:00
Wednesday	08:30 - 16:00
Thursday	08:30 - 16:00
Friday	08:30 - 15:00