Know your rights at stokvel gatherings

2018-11-21 06:02

It is a given fact that many people who join stokvels remain uninformed on how to handle conflict that can arise when the trust inherent to a stokvel is broken.

Just when South Africans, as is the culture, expect to proportionate to their contributions as may be agreed between the members from their stokvel investments, Matimba Hlungwane, corporate attorney at Legal Aid South Africa, shared some advice.

Despite being tremendously popular, he says stokvels rarely have a formal document that regulates the members’ relationship, nor are the stokvels regulated by any statute.

This makes members vulnerable and exposes them to various risks of default of contributions or misappropriation of funds.

The existence of a stokvel constitution has been identified as crucial to regulate the relationship among the members of the stokvel.

The constitution should include a clause that prescribes a process to recover the money from a member who is in default, or who may mis­appropriate its monies.

“It is important to indicate that the clauses in the stokvel’s constitution should not be in conflict with public morals.

“The stokvel’s constitution cannot trample on the members’ Constitutional rights as prescribed in the Bill of Rights,” Hlungwane said.

In the absence of a constitution, he clarified that members can only rely on the law of general application, where the innocent members would have to report to the South African Police Service (SAPS) that fraud has taken place.

“The SAPS will investigate the complaint and thereafter make a decision on whether to charge the member responsible or not, then refer the case to the National Prosecuting Authority (NPA) for prosecution.

“In the event that the member is found guilty by the court, the innocent members may make an application to the court, in terms of section 300 of the Criminal Procedure Act, for an order that the guilty member be ordered to repay the money.

“An order of the court in that regard has the same effect as a civil judgment.”

According to Hlungwane, the innocent members may execute the judgement in the same manner as any civil judgement – be it selling the properties of the guilty party on an auction through the sheriff to recover the monies misappropriated.

“The witnesses will be required to testify on the agreed terms and conditions of the stokvel, even in the absence of a constitution.

“Alternatively, the innocent members may choose to institute a civil action against the member for the recovery of the monies in question. This process requires the issuing of a summons,” Hlungwane said.

  • The subject of summoning will be discussed next.

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