Antenuptial contracts: With or without the accrual system?

The default matrimonial property law regime in South Africa is a marriage in community of property.  This happens by law if parties sign a marriage register (which is usually signed on the day of the wedding) without having signed an Antenuptial Contract before signing the marriage register.  The parties to such a marriage share one estate, i.e. all debts and assets are jointly owned by both parties.If parties decide to marry out of community of property, they have to enter into an Antenuptial Contract to separate their respective estates.

What is an antenuptial contract?

An Antenuptial Contract is an agreement in terms of which the parties determine that they want their marriage to be out of community of property.  When preparing the Antenuptial Contract, one of the important decisions is whether the accrual system (explained below) will be applicable to their matrimonial property regime or not.  An antenuptial contract is prepared by a Notary Public and signed by both parties and two witnesses in the presence of the Notary Public.  The signed Antenuptial Contract has to be registered in the Deeds Registries Office within 3 months after date of signature.  The date of signing the marriage register and/or the wedding date is not relevant in this context.

What is the accrual system?

The accrual system is a regime that implements a formula whereby the party whose estate shows no accrual during the marriage, or a smaller accrual than the estate of the other, or in the case of the death of the first mentioned party, his or her executor, will have a claim against the other party or his or her estate for an amount equal to one half of the difference between the accruals of the respective estates of the parties.  For purposes of determining the accrual of each party, they will be expected to declare their asset values at the commencement of the marriage, which will be deducted from their asset value at the termination of the marriage, to determine the accrual.

The accrual claim only vests at the dissolution of the marriage and shall not during the subsistence of the marriage be transferable or liable to attachment or form part of the insolvent estate of either party.

Whether or not to include the accrual system in an Antenuptial Contract is a personal choice of the prospective spouses.

It is important that both parties consult with the Notary Public preparing the Antenuptial Contract so that they are both fully appraised of the consequences of the different regimes.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Employers Beware: Dismissal for Poor Performance Could Backfire

It is reasonable to want to dismiss an employee for not performing on the job, or failing to meet a specific target. However, Employers should ensure that the targets they set are actually achievable for the employee. If not, they could be found at fault for dismissing an employee who failed to achieve unreasonable targets.Damelin (Pty) Ltd vs Parkinson

In a recent judgement, delivered in January 2017, tertiary education company Damelin (Pty) Ltd, hired Parkinson as the general manager of the Boksburg campus. Parkinson’s employment contract stated that, ‟continued nonattainment of performance goals may result in the termination of employment.”

When Parkinson took up his position in January 2011, the campus had 352 enrolled students of which 168 were first-year students. His target for 2012, which was the national target, was to enrol 420 first year students by February 2012. Andrew Pienaar, the national sales director, estimated that there were 15 000 grade 12 learners in the catchment area of the Boksburg campus. Parkinson queried the target, saying that his team contacted all the schools in the area and there were only 12 735 grade 12 learners in his area. He claimed that unrealistic numbers give rise to unrealistic targets, and that it was like being set up to fail.

The actual enrolment of first-year students for the Boksburg campus for 2012 was 117 first year students. In 2011, the figure had been 168. Parkinson had not met the target. A disciplinary inquiry was convened. Parkinson was charged with poor work performance relating to his failure to reach sales targets and was dismissed.

Unhappy with his dismissal, Parkinson and his union went to the CCMA. The commissioner determined that the dismissal was the appropriate sanction. Still dissatisfied, Parkinson then went to court. The court determined that dismissal could only be considered as a fourth step in terms of Damelin’s disciplinary code. The court set aside the award and reinstated Parkinson saying that the informal letters written to Parkinson could not be considered warnings, and that he was not given an appropriate amount of time to reach his targets.

Conclusion

Employers should remember that problems relating to an employee’s performance should, generally speaking, not be dealt with as misconduct but as incapacity which necessitates a different process than misconduct. Setting unrealistic expectations on employees could set them up for failure. In these circumstances, dismissal would not be appropriate. It is therefore important that employers ensure the standards they set for their employees are achievable within a reasonable amount of time. Employers should also first assist their employees where performance is not of the required standard before dismissal can be considered.

Reference: Case no: JA 48/15

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

How and when to use the small claims court

The small claims court (SCC) is for any natural person who wants to institute a minor civil claim against someone else. Juristic persons, for instance a company, cannot institute claims in the SCC, but only file a counterclaim.  You can also claim against companies and associations. However, the claims are limited to amounts that are less than R 15 000. This excludes the State, meaning a person cannot make a claim against a local municipality, for example. Claims made in the SCC are done quickly and cheaply without having to use an attorney and anyone, except juristic persons, are allowed to use them. The SCC is located in every Magistrate’s Court.Read more about the SCC on The Department of Justice and Constitutional Development’s website: justice.gov.za.

Where do I start?

Before running to the court to make a claim, first contact the person you intend to claim from (“the Defendant”) and ask them to fulfil your request. Let them know you are planning on going to the court to make a claim against them if they don’t comply. If your claim can not be settled informally, the next step would be to deliver a written letter of demand to the Defendant.

The clerk of the SCC will help you to draft your letter of demand. The letter should set out the details of the claim, including the amount. Give the Defendant at least 14 days from the day of receiving your letter to settle your claim.  Make sure the Defendant receives an actual physical copy of the letter. This can be posted to the Defendant, or you can simply take it to the Defendant directly.

So, 14 days has passed and the Defendant didn’t respond. Now you can go to the clerk of the SCC with documents to institute your claim. Firstly, you will need proof that you delivered the letter of demand. This can be a post office slip, for example.  You will also need a contract or document that gives a basis for your claim. Your claim can’t just be based on thin air. Lastly, provide the SCC with all the details of the person you’re claiming from, such as name, address and phone number.

The summons

The clerk of the SCC will help you in drawing up the summons.  Once the summons is complete a hearing will also be scheduled. You then have to serve the summons to the Defendant in person and get them to sign it. Don’t be surprised if they are visibly upset. Remember to make copies of all the documents and keep them. Also give copies to the Defendant. The original documents must be handed over to the clerk of the SCC before the day of the hearing. This information will be kept in the court file.

After the Defendant receives the summons, the Defendant may deliver a plea (written statement) to the clerk of the court. The Defendant may also issue a counterclaim. Regardless of whether the Defendant institutes a plea or counterclaim, the Defendant still has to attend the hearing. On the other hand, the Defendant may decide to fulfil your claim before the hearing, you should then issue a written receipt and let the clerk of the SCC know that you won’t be continuing with the case.

Going to the hearing

You and the Defendant must appear in court in person, attorneys or lawyers are not necessary. Remember to bring along all the documents on which your claim is based, there’s no point in showing up empty-handed. If you have witnesses, make sure they also come with you to the hearing. The SCC proceedings are basic and straight-forward. As mentioned, no attorneys are involved. As the proceedings begin, answer any questions that the commissioner of the court asks you. If you want and the commissioner agrees, then you can direct questions to the Defendant.

The final judgment

After the proceedings have been completed, the court will make a judgment, which is final. There may, however, be some grounds for review. If the judgment is against you, then you should settle any order for costs. Since the court judgment is final, you have to abide by it. You can’t change your mind afterwards.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Can I amend my Will?

Having a Will is a final statement of how you want your assets to be managed after your death. However, sometimes you may want to change it. You may have had a child, for example, and want to add him/her into your Will. You may have also acquired more assets and would like to reconsider how they get divided among your possible heirs.

What is a Codicil?

When you want to add something to your Will or make a minor change, then you can make use of a Codicil. A Codicil is a minor addition or minor amendment to an existing Will. The legal requirements for a valid Will also apply to a Codicil. A Codicil needs not be signed by the same witnesses who signed the original Will.

What if I want to amend my Will?

  1. All amendments to a Will must comply with the legal requirements as stipulated in the Wills Act. If you want to make material amendments to an existing Will, it is always advisable to draft and sign a new Will.
  2. The original Will and the Codicil are separate documents, signed at different times and not necessarily before the same witnesses.

Must I amend my Will after divorce?

A bequest to your divorced spouse in your Will, which was made prior to your divorce, will not necessarily fall away after divorce.

  1. The Wills Act stipulates that, except where you expressly provide otherwise, a bequest to your divorced spouse shall not take effect if you die within three months of the divorce.
  2. This provision is to allow a divorced person a period of three months to amend his/her Will, after the trauma of a divorce.
  3. Should you however fail to amend your Will within three months after your divorce, your divorced spouse will benefit as indicated in the Will.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

References:

http://www.justice.gov.za/master/m_deseased/deceased_wills.html

 

When is there a cooling-off period after a sale; allowing a purchaser to have second thoughts?

Consumer Protection Act

The Consumer Protection Act (CPA) provides for a cooling-off period if a transaction results from direct marketing, allowing a purchaser to get out of a sale agreement. It is often mistakenly thought that this applies to all transactions where the CPA applies. This is not so.

Section 16 of the Consumer Protection Act says:

A consumer may rescind a transaction resulting from any direct marketing without reason or penalty, by notice to the supplier in writing …, within five business days after the later of the date on which

  1. The transaction or agreement was concluded; or
  2. The goods that were the subject of the transaction were delivered to the consumer.

What is direct marketing?

The Act defines direct marketing as follows:

“direct marketing” means to approach a person, either in person or by mail or electronic communication, for the direct or indirect purpose of-

   (a)   promoting or offering to supply, in the ordinary course of business, any goods or services to the person; or

   (b)   requesting the person to make a donation of any kind for any reason;

 This means that if you conclude a transaction for the supply of goods or services in response to an unsolicited offer made to you in person, or by telephone or by email, you can get out of the transaction within five business days.

The “cooling-off” period does not apply to sales that result from any other form of marketing such as conventional print advertising or any transaction concluded when a customer buys goods in a shop.

How can you get out of the transaction?

You can do this by without reason and without having to pay a penalty, by simply giving notice to the supplier in writing, or in another recorded manner and form.

You must give the notice within five business days after the date on which-

(a)   the transaction or agreement was concluded; or

(b)   the goods were delivered;

whichever is the later date.

Cooling-off period when buying certain residential property

Under the Alienation of Land Act, residential property transactions for R 250 000.00 or less are also subject to a “cooling-off” period of five working days. This does not apply to residential properties sold for more than R 250 000.00. This provision remains in place and is not affected by the CPA.

Section 29A of the Alienation of Land Act says that a purchaser may revoke the offer to buy the land or the deed of sale within five days after signing the offer or deed of sale personally or through an authorized agent acting on written authority.

The written notice to revoke must be signed personally or by an authorized agent and must be unconditional.

Where an offer is revoked or deed of sale is terminated within the cooling-off period, every person who received any amount from the purchaser or prospective purchaser in respect of the offer or sale, shall refund the full amount of such payment to the purchaser within ten days of the date on which the notice to revoke was delivered to the seller or his or her agent.

This article is a general information sheet and should not be used or relied on as legal advice. Always contact your legal adviser for specific and detailed advice.

5 Reasons to do Estate Planning TODAY

Drawing up a Will and doing Estate Planning may sound like hard work, but here are some reasons why you should do this TODAY:

  1. It means that you are providing for your loved ones:

In addition to looking after your health and the health of your family, you also should be planning for their financial wellbeing after your death.  None of us wants to think about dying, but to neglect planning for it can be disastrous for your family.

  1. No estate is too small for planning:

Even if you think that you do not own much, you need to plan for somebody to be appointed as Executor of your Estate.  You have to make provision for a Guardian if you have minor children, and plan how inheritances of minors should be managed after your death.

  1. With proper advice, the process is not complicated:

You may think that Estate Planning is complicated and difficult.  Now is the time to discuss with our experts the questions you have.  They can explain the process, and advise on which documents you need to have drawn up.

  1. Estate Planning need not be time-consuming:

Once you have discussed the basics with one of our experts and taken the important decisions, most of the planning process can be done via email or the telephone.  We will then finalize the documents for your signature, and assist you with the formalities.

  1. Spending money now will save money later:

Yes, it will cost money to have an attorney draw up your Will and Estate Plan, but having a properly drawn up Will, which has been executed (signed) correctly, ensures that there will be no complications after your death.  If your Estate Plan is updated regularly to take into account any changes in legislation, you also ensure that no unnecessary taxes are paid after your death.

Should you want to draw up a Will, or update your Will, or simply check that your Estate Plan still meets your needs, you are most welcome to contact our Trust and Estate Planning Department today.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

 

My neighbour is a nuisance

It is the third night this week you cannot sleep, because your new neighbour enjoys playing loud rock music late at night. Being kept up till 2 am every morning is affecting your productivity at work. You talk with your neighbour, but he doesn’t seem to see a problem. What now?

Occasional loud noise, if the neighbours have a birthday party, for example, may be considered reasonable. However, if the behaviour of neighbours is repetitively disruptive to the extent that it affects your ability to enjoy your property, then the law supports your concern.

What does the law say about loud neighbours?

There are Noise Control Regulations under the Environment Conservation Act (Act 73 1989). These regulations state that no person (including your neighbour) is allowed to:

Operate or play a radio, television, drum, musical instrument, sound amplifier, loud speaker system or similar device that produces, reproduces or amplifies sound, or allow it to be operated or played so as to cause a noise nuisance.

The regulations also give local authorities (i.e. your municipality) the right to enter premises without prior notice, on condition it’s at a reasonable time of the day. This would be to inspect the premises and take any action if necessary.

What makes your neighbour a nuisance?

The basic question is whether the noise is unreasonable in the circumstances. In a busy city area, for instance, noise pollution is common, but in a residential area life can be expected to be quieter.

Noise is not the only neighbourly “nuisance”. Some other causes of nuisance include:

  1. Bad odours.
  2. Excessive movement of vehicles or people.
  3. Smoke, gas or fumes.

Before reacting to the conduct of your neighbour you should consider the following:

  1. The area affected.
  2. The extent of the disturbance.
  3. The time, duration and frequency of the disturbance.

What can you do?

The first step of any neighbourly dispute should be to approach your neighbour and ask them to stop what’s causing the nuisance, such as telling them to turn down the music. If matters cannot be resolved reasonably and interventions by your local authority or by calling the police produce no results, you should get legal advice on obtaining a court order (interdict), directing the neighbour to stop causing the nuisance.

 Reference:

Anderson, AM. Dodd, A. Roos, MC. 2012. “Everyone’s Guide to South African Law. Third Edition”. Zebra Press.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Government’s administrative decisions

To safeguard against administrative decisions going wrong, the Promotion of Administrative Justice Act of 2000 (PAJA) gives individuals and legal entities the right to fair, lawful and reasonable administrative action. Furthermore, it gives the important right to obtain reasons for administrative actions.

Administrative action?

Applications for an ID or passport or permit, for example, involve administrative action.

Government departments, the police, and parastatals such as ESKOM all take administrative decisions. PAJA applies when a decision made by an arm of government has an effect on someone’s rights.

What does PAJA do?

PAJA requires that a fair procedure is followed when administrative decisions are taken, and gives the important right to obtain reasons for decisions. Persons affected by decisions that go against them, must also be informed of any internal appeals available to them within the government department or body concerned. As a last resort the person affected can approach a court to review the decision.

The following are grounds for review:

  1. There was no good reason (rational basis) for the decision.
  2. The decision-maker was not authorised by legislation to act or take the decision.
  3. The person who took the decision or action applied the law incorrectly.
  4. The person who took the action did not apply his/her mind to the issue.

What can you do?

If a decision goes against you and you believe there are grounds for getting it set aside, you can request that the particular department provide reasons for the decision. The request should be submitted in writing and within 90 days of the decision or action. If you don’t agree with the reasons, you can request an internal appeal or review. This step must be taken before you can approach a court for review. Government departments will usually have their own internal review or appeal process, which they should inform you about. If you’re still not happy, you can consider an application to court for review. Going to court is expensive, so obtain legal advice on all the available options.

Reference:

Promotion of Administrative Justice Act, 2000 (Act 3 of 2000) Department of Justice and Constitutional Development. Accessed: http://www.justice.gov.za/paja. 09/05/2016.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Managing the administration of a deceased relative’s estate

The Administration of Estates Act, 1965, determines what must happen with an estate after a person’s death, to ensure that the process is properly managed. This is particularly important if it is a large estate, the assets are varied and there are potential family disputes.

Finding the Will

The first thing to do is to find the Will. If the Will cannot be found among the papers of the deceased, places to call include the deceased’s life insurance company, bank or attorney.

Who is the executor?

An executor is the person appointed to handle the process of settling the estate. The executor will either be nominated in the Will or nominated by the beneficiaries, if there is no nomination in the Will or no Will can be found. The executor is appointed by the Master of the High Court after, inter alia, taking such nominations into consideration. The Master will ultimately decide who will be the executor. If the chosen executor is unfamiliar with the legal procedure, he or she can approach an attorney for help. Once the executor has been determined, the Master will issue a “Letter of Executorship”, which gives the authority to administer the estate.

What must the executor do?

The executor’s responsibilities include:

  • arranging for valuation of the assets of the estate.
  • contacting and dealing with all the beneficiaries.
  • arranging provisional payments for the family’s immediate needs.
  • opening a bank account for the estate and depositing the estates money in it.
  • paying all the necessary estate duties.

The executor needs the Letter of Executorship to carry out these duties.

Eventually, the executor will prepare a liquidation and distribution account, setting out all assets, and debts, and how the assets will be distributed to beneficiaries.  This account must be delivered to the Master, who will check that the executor’s actions reflect the ill of the deceased and that all legal requirements have been fulfilled.

Important things to keep in mind

Whenever any person dies inside or outside the Republic of South Africa leaving any property or a Will, then the death of such a person must be reported to the Master of the High Court by completing a prescribed Death Notice form.

References

The Department of Justice and Constitutional Development: “Reporting the estate of the deceased”. Accessed from: http://www.justice.gov.za/services/report-estate.html/ on 11/05/2016.

Administration of Estates Act 66 of 1965. Accessed from: http://www.justice.gov.za/ on 11/05/2016.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Cluver Markotter welcomes Sherine as a director and Jana to the team

Jana (left) and Sherine (right)

Sherine Roberts has been promoted to the position of director at Cluver Markotter on 1 February 2017. She joined the firm as a senior associate in the property law department in May 2016. Sherine is a graduate of the University of the Western Cape and has been practising as a conveyancing attorney for eight years.

Jana Bothma joined Cluver Markotter as an associate in January 2017 in the Litigation Department, where she focusses predominantly on eviction proceedings. She studied at Stellenbosch University where she also obtained her Master’s degree in law. Jana completed her articles as a candidate attorney at Stellenbosch University’s Legal Aid Clinic.

We congratulate Sherine on her promotion and welcome Jana to the team of professionals and wish them success with their careers at Cluver Markotter.

Cluver Markotter verwelkom vir Sherine as direkteur en vir Jana tot die span

Sherine Roberts is op 1 Februarie 2017 tot direkteur van Cluver Markotter bevorder. Sy het in Mei 2016 as senior assosiaat in die eiendomsafdeling by Cluver Markotter aangesluit. Sherine is ʼn gegradueerde van die Universiteit van Wes-Kaapland en praktiseer reeds vir agt jaar as aktebesorger.

Jana Bothma het gedurende Januarie 2017 as ʼn assosiaat in die litigasieafdeling, waar sy hoofsaaklik in uitsettingsaangeleenthede spesialiseer, by Cluver Markotter aangesluit. Sy het ʼn Meestersgraad in Regsgeleerdheid by die Universiteit van Stellenbosch verwerf. Jana het haar kandidaat-prokureurskap by die Regshulpkliniek van die Universiteit van Stellenbosch voltooi.

Ons wens Sherine geluk met haar bevordering en verwelkom vir Jana by ons span. Ons wens hulle voorspoed met hul loopbane by Cluver Markotter toe.