WHO MAY BE APPOINTED AS DIRECTOR?

A2_b_MarCertain people are not eligible to be appointed as directors of a company. In this article we look at who is disqualified from being a director as well as the effects of the actions of such persons while still acting as director.

A company must not knowingly permit an ineligible or disqualified person to serve or act as a director, according to section 69(3) of the Companies Act 71 of 2008. “Knowingly” includes the situation where the company should reasonably have known that the person is ineligible or disqualified.

Section 69(7) lists the persons on which there are an absolute prohibition, being juristic persons, minors or any persons disqualified in terms of the Memorandum of Incorporation. Section 69(8) lists the persons that are disqualified on a temporary basis, being someone who has been prohibited by the court or whom the court has declared a delinquent, unrehabilitated insolvents, persons who were removed from an office of trust on the grounds of misconduct involving dishonesty, and persons who were found guilty of a criminal offence and imprisoned without the option of a fine, or were ordered to pay a higher fine for being found guilty of any dishonesty crimes.[1]

A question that arises here is what the effect would be of appointing a prohibited director. Section 69(4) says that a person immediately ceases to be a director if they are prohibited from being a director, but section 71(3) states that if a shareholder alleges that a person is disqualified then the person must be removed by a board resolution before they cease to be a director. This means that any act done by such a person, despite his disqualification, will be valid and binding on the company unless the third party who was involved in the act was aware that the person they were dealing with was disqualified.[2]

Section 162(5) (a)-(f) sets out the grounds for an order of delinquency. A court must make an order declaring a person to be a delinquent director if the person:

  1. consented to serve as a director, or acted in the capacity of a director or prescribed officer, while ineligible or disqualified to be a director;
  2. acted as a director in a manner that contravened an order of probation;
  3. grossly abused the position of director while being a director;
  4. took personal advantage of information or an opportunity, or intentionally or by gross negligence inflicted harm upon the company or a subsidiary while being a director;
  5. acted in a manner that amounted to gross negligence, wilful misconduct or breach of trust while being a director; or as contemplated in section 77(3) (a), (b) or (c);
  6. has repeatedly been personally subject to a compliance notice or similar enforcement mechanism;
  7. has been convicted of an offence at least twice, or subjected to an administrative fine or similar penalty; or
  8. was a director of a company or a managing member of a close corporation, or controlled or participated in the control of a juristic person that was convicted of an offence, or subjected to a fine or similar penalty, within a period of five years. [3] & [4]

If a person is declared a delinquent in terms of section 162(5) (a) or (b) it is unconditional and for the lifetime of the person. If a person is declared a delinquent in terms of section 162(5) (c)-(f) this is temporary for a minimum of 7 years.[5]

It is therefore very important, when appointing a director, to make sure that he is qualified in terms of the new Companies Act. One must do proper research about a person accordingly before appointing him as a director of a company because it is possible that if you do not do so, the company in which you are a shareholder may have to bear the consequences of the actions of this disqualified person.

References:

l Companies Act 71 of 2008

l FHI Cassim et al Contemporary Company Law (2012)

[1] Section 69(7) – (8) of the Companies Act 71 of 2008.

[2] Section 69(4) and 71(3) of the Companies Act 71 of 2008.

[3] Section 162(5) (a)-(f) of the Companies Act.

[4] FHI Cassim et al Contemporary Company Law (2012) 435 – 437.

[5] FHI Cassim et al Contemporary Company Law (2012) 438.

This article is a general information sheet and should not be used or relied on as 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)

USUFRUCT, USUS AND HABITATIO: WHAT IS THE DIFFERENCE?

A4_bUsufruct, usus and habitatio are personal servitudes. These servitudes are sometimes considered as an estate planning tool to reduce estate duty, but testators don’t always realise what this entails and the burden it could place on the heirs.

What is a personal servitude?

A personal servitude is always constituted in favour of a particular individual on whom it confers the right to use and enjoy another’s property. This servitude is enforceable against the owner of the property that is burdened with it but cannot be transferred by the personal servitude holder. It may be constituted for a fixed term or be granted until the occurrence of a future event or for the lifetime of the beneficiary, but not beyond his death.

How is a personal servitude constituted?

It is usually constituted by a last will, but can also be created by agreement.

 USUFRUCT

 A usufruct is a right that entitles a person to have the use and enjoyment of another’s property and to take its fruits without impairing the substance. For instance, the object of a usufruct over a farm will normally extend not only to all buildings but presumably also to livestock, farming equipment and the furniture in the homestead.

 The general duties of the usufructuary

The usufructuary is only entitled to the use and enjoyment of the property; he does not acquire ownership of it. The usufructuary may not consume or destroy the property, but he is obliged to preserve its substance. The property must be used in the manner it was intended to be used. A new manner of exploitation is, however, permitted if it is considered to be the sensible thing to do under the circumstances.

 Right to fruits

The usufructuary may take, consume or alienate the fruits, whether they are natural, industrial or civil. This means that the usufructuary is entitled to all the products of the land and all profits and revenues derived from the property. The young of animals as well as all products derived from the animals, including milk, wool or eggs become the property of the usufructuary. The usufructuary acquires the ownership of natural and industrial fruits by gathering it or by someone else gathering them in the name of the usufructuary. Growing crops are regarded not as fruits but as part of the soil and must be gathered and separated from the soil first. Fruits not gathered at the expiry of the usufruct do not pass to the successors of the usufructuary. Civil fruits (for example rental income or interest) become the property of the usufructuary when due. On the expiry of the usufruct civil fruits are divided between the now former usufructuary and the owner of the property in proportion to the time for which the usufruct existed.

Repairs and expenses

 The usufructuary is bound to maintain the property and to defray the costs of all current repairs necessary to keep it in good order and condition, fair wear and tear excepted. He is also responsible for paying all rates and taxes. Payment of insurance premiums, costs of capital expenditure such as structural reinforcements necessary to prevent a building from falling into ruin and other similar costs, are excluded from his responsibilities.

 Improvements

 If the usufructuary makes improvements to the property he is not entitled to compensation, though the improvements made can be removed, provided the usufructuary makes good any damage that their removal may cause.

 Alienation

 A usufructuary may not alienate or encumber the property, but he may dispose of the right to the use and enjoyment of the property and its fruits whether by sale, lease or loan, provided that such arrangement does not exceed the period for which the usufruct has been granted.

 Termination

 A usufruct is usually created for the lifetime of the usufructuary, but sometimes for a fixed period, terminable on death.

 Juristic acts by the owner

 The owner may not do anything to prejudice the usufructuary’s rights. The owner may not prevent, hinder or diminish the right of use or enjoyment and may only burden the land held in usufruct with a predial servitude if the written consent of the usufructuary has been obtained. Any further actions by the owner regarding the property, for instance the sale of the property and the registration of a mortgage bond, require the consent of the usufructuary. The owner together with the usufructuary may mortgage the property, or the usufructuary can abandon his preference so that the mortgage is registered free from the usufruct. Most banks prefer the latter.

 USUS

A servitude of use or usus resembles a usufruct but the holder’s rights are far more restricted. If the property is movable he may possess and use the property and if the property is immovable he and his family may occupy it. The holder may take the fruits for his and his family’s daily needs. The holder may not sell any fruit, nor may he grant a lease of the property. There are a few exceptions, for example should the house be too large for the holder’s use, he may let a portion of it. The holder’s use must, however, be without detriment to the substance of the property.

 HABITATIO

The servitude of habitatio confers on its holder the right to dwell in the house of another, together with his family, without detriment to the substance of the property. The holder may grant a lease or sublease to others.

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)

THE NEW SOUTH AFRICAN IMMIGRATION REGULATIONS TIGHTENS SCREWS FOR FOREIGN SPOUSES.

A3_bThis article looks at the New South African Immigration Regulations that came into effect on 26 May 2014 and how it affects a spouse attempting to renew or obtain a spousal visa.

A Newlands family was torn apart after South Africa’s new regulations barred Louise Johnson from returning to South Africa after going on a family holiday in Namibia. Section 27 of the new regulations declared Louise Johnson, a Danish-born spouse of a South African, as an undesirable person. People who are travelling on an expired visa will be declared as undesirable people. This is very controversial because many foreigners, such as Louise, have applied well within the time limit, which is 60 days before the expiry thereof, and have still not received their renewed visa.

In order to apply for a spousal and life partner visa one must prove that the relationship has existed for two years before an application for this visa is made. One must also prove that the relationship still exists after two years. Further, if you are married to or in a life partnership with a South African citizen or a permanent resident holder, you have to be married for a continuous period of five years before an application for permanent residency can be launched.

Visa renewals often take months to process and in the past a receipt issued by the Department of Home Affairs, indicating that an application was pending would suffice. The new regulations bring this to an end. Foreigners who remain in South Africa for anywhere between one to thirty days after the expiry date of their valid visa will be deemed to be undesirable for a period of twelve months. A second transgression within a period of twenty-four months will render them “undesirable” for a period of two years and should they overstay for more than thirty days they will be classified as “undesirable” for five years.

For example Olivia Lock, a British National, who is married to a South African, was prohibited from returning to South Africa for 12 months in May, due to leaving South Africa on an expired visa whilst awaiting the outcome of a renewal of her visa. United States citizen, Shaima Herman, married to a South African, was also declared an “undesirable person”, after a two-year wait for the approval of her spousal visa. Her husband indicated that she had visited the Department of Home Affairs on 14 separate occasions and yet her visa remains delayed.

Haniff Hoosen from the Democratic Alliance stated that: “Media reports and public outcry suggest that in less than a month the new regulations have already ripped apart families, dissuaded investors, and led to the suspension and even cancellation of multimillion-rand film and tourism ventures”. He called for the regulations to be reviewed and debated by Parliament’s Home Affairs Portfolio Committee.

The Minister of Home Affairs, Malusi Gigaba, asserted that the new immigration regulations proposing to be in the best interests of South Africa’s security, is an insufficient excuse for inefficient policy. He further states that: “Omissions and lack of definitions and criteria raised serious concerns about the new regulations, which would be subject to “misappropriation and abuse” by the Department of Home Affairs and its officials.”

It is very likely that one can expect to see court cases challenging these regulations very soon but in the meantime one should not travel out of South Africa without a valid visa, or you will be declared an “undesirable person”.

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)

SUCCESSION PLANNING

A2_bOwning a business requires careful succession planning and is part of your estate planning as you have to determine who will succeed you, or who will purchase your shares, or who will be entitled to the income after your death. The future ownership of your business is at stake.

A Partnership automatically dissolves upon the death of a partner and the remaining partners will then have to dissolve it and divide the assets amongst them.

In the case of a Company the shareholders may agree that:

  1. The remaining shareholders have a right of first refusal to purchase the deceased shareholder’s shareholding, as opposed to dealing with it in a will.
  2. The future of ownership of shares can be regulated by a written agreement between shareholders that is referred to as “buy and sell” agreement and has an influence at the death of a partner or shareholder.
  3. The buy and sell agreement compels the executor of the deceased to offer the shares at a pre-determined price, and life policies between shareholders normally cover the purchase price.
  4. The remaining shareholders are the beneficiaries of the policy on the life of the deceased and use it to purchase the shares, normally pro rata to the shares they already own.
  5. Buy and sell policies fall outside the deceased estate and are not subject to estate duty provided that three requirements are met:
  • None of the premiums should have been paid by the deceased;
  • The shareholder relationship must have existed at the time of death;
  • A written agreement must exist.
  1. When the skill and knowledge of a partner is essential for the survival of the business, “key man insurance“ can be taken out on the life of such a partner or shareholder. The premiums are paid by the business and the benefit is paid to the business to prevent financial loss or to appoint and train a replacement.

In the case of a “sole proprietor”, succession planning is dealt with in the Last Will and Testament.

  1. All the value of the business vests in the deceased estate.
  2. Planning is essential as the business terminates at death, although the executor may sell it as a going concern.
  3. It is a good idea to grant a right of first refusal to an associate, who can purchase the business and intellectual capital at the time of the death.
  4. A life policy can provide for cover on the life of the owner, with the associate being the beneficiary, and the proceeds at time of the death utilised to purchase the business.
  5. It deserves no debate that planning increases the benefit for the estate as opposed to closing the business down, where the assets will be worth far less.

Continued succession planning must be part of your business strategy to ensure your hard work benefits the right people.

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 TO CHANGE YOUR MARITAL STATUS TO ANOTHER FORM OF MARRIAGE CONTRACT

A1_bSection 21(1) of the Matrimonial Property Act No 88 of 1984 provides that a husband and wife may apply jointly to court for leave to change the matrimonial property system which applies to their marriage.

Requirements

The decision in Lourens et Uxor 1986(2) SA 291 (C) sets out guidelines that the courts follow with regard to applications in terms of section 21(1) of the Matrimonial Property Act.

In order for the parties to change their matrimonial property system, the Act mentions the following requirements:

  • There must be sound reasons for the proposed change.

According to South African Law, the parties who wish to become married out of community of property must enter into an antenuptial contract prior to the marriage ceremony being concluded. If they fail to do so they are automatically married in community of property. Of course, many people are unaware of this provision and should be able to satisfy the court that it should change their matrimonial property system if it was their express intention that they intended to be married out of community of property.

  • Sufficient notice of the proposed change must be given to all creditors of the spouses.

The Act requires that notice of the parties’ intention to change their matrimonial property regime must be given to the Registrar of Deeds, must be published in the Government Gazette and two local newspapers at least two weeks prior to the date on which the application will be heard, and must be given by certified post to all the known creditors of the spouses. Moreover, the draft Notarial Contract that the parties propose to register must be annexed to their application.

  •  The court must be satisfied that no other person will be prejudiced by the proposed change.

The court must be satisfied that the rights of creditors of the parties must be preserved in the proposed contract. The application must therefore contain sufficient information about the parties’ assets and liabilities to enable the court to ascertain whether or not there are sound reasons for the proposed change, and whether or not any particular person will be prejudiced by such change. Once the court is satisfied that the requirements have been met it may order that the existing matrimonial property system may no longer apply to their marriage, and authorise the parties to enter into a Notarial Contract by which their future matrimonial property system is to be regulated on such conditions as the court may deem fit.

 It should also be stated whether or not either of the applicants has been sequestrated in the past and, if so, when, and under what circumstances. The case number of any rehabilitation application must be furnished.

 It further needs to be stated whether or not there are any pending legal proceedings in which any creditor is seeking to recover payment of any alleged debt due by the couple or either of them.

Care must be taken to fully motivate the proposed change in the existing matrimonial property system. Applicants must explain why no other person will be prejudiced by the proposed change. In any event, the order sought, and the contract which it is proposed to register, shall contain a provision which preserves the rights of pre-existing creditors.

The application must disclose where the parties are domiciled and, if they are not resident there when the application is made, where they are resident. If there has been a recent change in domicile or residence it should be disclosed so that the Court can consider whether the application has been brought in the appropriate forum and/or whether or not additional notice of the application should be given. Ordinarily the application should be brought in the Court in whose area of jurisdiction the parties are domiciled and ordinarily resident.

The negative side

Unfortunately, the application is expensive in that both spouses have to apply to the High Court on notice to the Registrar of Deeds and all known creditors, to be granted leave to sign a Notarial Contract having the effect of a postnuptial contract which, after registration, will regulate the new matrimonial property system.

It would thus be cheapest and best to approach an attorney or notary prior to the marriage ceremony being concluded to draft a proper ante-nuptial contract regulating the matrimonial property of the parties involved, without any confusion.

NOTE TO ATTORNEYS: See Lourens et Uxor 1986(2) SA 291 (C) ; as well as Section 21(1) of the Matrimonial Property Act No 88 of 1984.

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)

SICK LETTERS OR FAKE LETTERS?

A4_bThis article deals with medical certificates and whether or not an employee is justified in taking the day off for an “illness”.

Angela informed her employer on Monday morning that she would be staying at home as she felt very sick and was unable to do her work in her condition. Angela only decided on Wednesday that she would go to the doctor because she knew she would be returning to work on Thursday, and therefore needed a medical certificate from the doctor so that her work would not deduct the money from her salary. However, Angela had a surprise waiting for her.

In terms of Rule 15(1) of the Ethical and Professional Rules of the Medical and Dental Professions Board of the Health Professions Council of South Africa a practitioner shall only grant a certificate of illness if such certificate contains the following information:

  • the name, address and qualification of the practitioner;
  • the name of the patient;
  • the employment number of the patient (if applicable);
  • the date and time of the examination;
  • whether the certificate is being issued as a result of personal observations by the practitioner during an examination, or as the result of information received from the patient and which is based on acceptable medical grounds;
  • a description of the illness, disorder or malady in layman’s terminology, with the informed consent of the patient, provided that if the patient is not prepared to give such consent, the medical practitioner or dentist shall merely specify that, in his or her opinion based on an examination of the patient, the patient is unfit to work;
  • whether the patient is totally indisposed for duty or whether the patient is able to perform less strenuous duties in the work situation;
  • the exact period of recommended sick leave;
  • the date of issuing of the certificate of illness; and
  • a clear indication of the identity of the practitioner who issued the certificate which shall be personally and originally signed by him or her next to his or her initials and surname in printed or block letters.

If preprinted stationery is used, a practitioner shall delete words which are irrelevant. A practitioner shall issue a brief factual report to a patient where such a patient requires information concerning himself/herself.

The above is largely self-explanatory. Subrule (e) refers to those occasions where, for example, the employee has been off sick on Monday and Tuesday and then on Wednesday he goes to the doctor and informs the doctor that he has had flu since Monday and requires a sick note. The doctor is then required to write in the sick note, “I was informed by the patient that …”

An employer does not have to accept this as a genuine illness. The doctor is only telling you that the patient says he was ill. The doctor is not certifying that he made an examination and is able to confirm the illness. You would therefore be perfectly justified in informing the employee that the time taken off will be regarded as unpaid leave and that in future he should visit the doctor when he falls ill and not after he has recovered from the alleged illness.

Unfortunately for Angela her employer recently read an article informing him of his rights to deduct money from her salary because she failed to come to work on Monday and Tuesday and only went to see the doctor on Wednesday, and there was no way of ascertaining that she definitely was ill on those days.

In light of the above it would be wise for employees to see the doctor on the same day that they feel ill, and for employers to insist on seeing the medical certificate and examining it properly.

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)

IS IT BENEFICIAL TO CREATE A TRUST?

A3_bA Trust can be described as a legal relationship which has been created by the founder, who places assets under the control of Trustees. This either happens during the founder’s lifetime (inter vivos trust) or at the death of the founder (testamentary trust). This article will focus on the advantages and disadvantages of an inter vivos trust.

The advantage of a trust is firstly, that inter vivos trusts can be used to minimise estate duty. No estate duty should be payable on assets owned by the Trust as a Trust does not terminate or come to an end, since it has perpetual succession. Estate duty is currently taxed at 20% of the gross estate value. This saving in estate duty can be substantially large, especially for high net worth individuals who are worth millions of rands. Secondly, as the Trust’s assets are not owned by the beneficiaries, the creditors of the beneficiaries do not have a claim regarding the assets of the Trust. This advantage is especially important for people who are exposed to potential liability. Companies as well as individuals are able to transfer assets to Trusts. Lastly, because Trusts have perpetual succession, beneficiaries will be able to continue enjoying the benefit of the Trust assets even if one of the Trustees were to pass away.

The disadvantages are firstly, the costs of setting up a Trust, which can be high. It may cost up to R 20 000 to set up a Trust. If immovable property is transferred to the Trust then transfer duty needs to be paid. The founders of the Trust may also be liable to pay Donations tax, which is taxable at 20% of the value of the assets transferred to the Trust. Transfer duty is taxed according to a sliding scale. Secondly, Trustees could find themselves personally liable for losses suffered by the Trust if it can be proven that they did not act with care, diligence and skill in terms of section 9 of the Trust Property Control Act. It is important to note that “skill” requires more than just acting in good faith. Trustees may be proven to be negligent not only if they invested in risky investments, but also if they invested capital too conservatively, causing the capital not to grow sufficiently. Trustees also need to be aware of the fact that they can still be held liable if only one Trustee has signing power on behalf of the Trust and he/she makes a poor decision that holds all the Trustees liable for his negligence.

The founder of the Trust needs to recognise that the assets in the Trust do not belong to him/her anymore. The assets belong to the Trust. Should this loss of control (from founder to Trust) not occur, the Trust may be seen as an alter ego of the founder, which could result in the assets being included in creditors’ claims as well as having estate duty consequences.

The earnings from the assets in the Trust are taxed at 40%, and interest exemptions do not apply to Trusts. Also, the inclusion rate for Capital Gains tax for an inter vivos trust is 66.6% whereas the inclusion rate for individuals is 33.3%. Lastly, as we can see from the above, a Trust is not for everyone.

It is important to weigh up the advantages and disadvantages before deciding whether to go ahead or not. The best decision would be to speak to a certified financial planner or attorney who can assist you in making the correct decision regarding your personal situation.

 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)

THE SEQUESTRATION PROCESS

A2_bThe sequestration process involves a Court Application. The Applicant in the Application is either yourself for your own sequestration (voluntary surrender) or the Applicant is one of your creditors (either a friendly or aggressive creditor). The applications are similar and although there are some different requirements for each, the result is the same.

Voluntary surrender

Voluntary surrender refers to the process whereby a natural person can make an application to place him/herself under an order for sequestration.

A person is insolvent if his/her liabilities exceed his/her assets. In such a case he/she can apply for voluntary surrender of their estate. Anybody can apply for voluntary surrender at any stage as soon as he/she is insolvent, even if they have been or are under debt counselling, for example.

The person who wants to sequestrate him/herself, will depose to an Affidavit which explains why he/she claims he/she is insolvent. This will be drafted by the Attorneys who will bring the application on behalf of the Applicant. As soon as the Affidavit is signed, the application will be issued at Court and a Court date is assigned. The Applicant does not have to appear in Court as the Advocate appears on his/her behalf.

If the Court grants a provisional order on the first Court date, the matter will be postponed for approximately one month. During that month notice will be given to all creditors, and if on the return date no-one has opposed the application, the order will be finalised and the Applicant’s estate will be sequestrated.

Compulsory sequestration

Applications are also made by way of a Court application; however, in this case the Applicant will be a creditor of the debtor. If it is a creditor with whom the debtor does not have a good relationship, we refer to it as an “aggressive” sequestration (for example the bank).

However, the banks seldom bring sequestration applications against the average debtor as it is much cheaper and easier for them to follow the collection procedures: attach property and sell it and/or attach your salary.

If it is a creditor with whom the debtor has a good relationship, we refer to it as a “friendly” sequestration (for example a family member or a friend to whom you owe money).

Aggressive (“unfriendly”) sequestration

Where an unfriendly creditor brings a sequestration application against a debtor, we refer to it as an aggressive sequestration. It is also a forced sequestration as opposed to voluntary surrender.

The creditor who brings the application must have established a claim against the debtor; in other words, the debtor must indeed owe the creditor money. A second requirement is that there must also be a benefit to creditors. Thirdly, the debtor must have committed an act of insolvency.

If a creditor brings an aggressive application against a debtor, the debtor can oppose such an application if he/she is not insolvent or if there is another reason why the order should not be granted.

Process for “unfriendly” and “friendly” sequestrations

The process for both these applications is the same and it is only the Applicant that differs.

As with voluntary surrender, an Affidavit will be given by the creditor to explain why he avows that the debtor owes him/her money. He will attach proof thereof (contract/statement) and also proof that the debtor has committed an act of insolvency (where the debtor has written a letter to say that he/she cannot pay the debt). In both instances the Applicant must prove that there will be a benefit to creditors to have the debtor sequestrated.

Once the Affidavit has been signed, the necessary documentation will be drafted, issued at Court and a Court date assigned. As soon as this is done, the documents will be served on the debtor, employees of the debtor, Master of the High Court and the South African Revenue Services by the Sheriff. The provisional order should also be given to all creditors above R5 000.00 by way of registered post. If the application is not opposed, a final order will be made for the sequestration of the debtor/Applicant.

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)

 

IS SJEBEENS WETTIG?

A1_bOns weet almal van sjebeens, tog is dit ‘n digbewaarde geheim omdat dit as ‘n onwettige besigheid beskou word. Ons bespreek sjebeens en wat dit behels hieronder.

Sjebeens was township kroeë en kantiens wat hul ontstaan tydens Apartheid gehad het toe die Drankwet van 1927 Swartmense en Indiërs verbied het om alkohol te verkoop of gelisensieerde persele te betree. Ten einde ‘n inkomste te verdien, het baie Swart vroue hul gewend tot hul vroeëre vaardighede as bierbrouers. Die vroue, wat bekend geword het as “sjebeen queens”, het bier gebrou en aan trekarbeiders verkoop wat nie die westerse bier kon bekostig nie, of wat steeds die tradisionele bantoebier1 verkies het.

 In 2015 bestaan sjebeens nog steeds; die sensasie daarom het egter heelwat afgeneem sedert Apartheid in 1994 tot ‘n einde gekom het en almal toegelaat is om gelisensieerde persele te betree. Dit is ook minder in die kollig noudat dit nie meer onwettig is om ‘n sjebeen te besit of daar te werk nie, solank die eienaar om ‘n lisensie aansoek doen en slegs alkohol verkoop wat wettiglik vervaardig en aan die publiek voorsien mag word.

Die Drankwet van 1989 stipuleer dat geen persoon enige konkoksie wat vervaardig is deur die fermentasie van melasse, suiker of ander bestanddele bekend as isityimiyana, hopana, qediviki, skokiaan, uhali of barberton, enige konkoksie soortgelyk daaraan of enige drankie wat van een van hierdie konkoksies gedistilleer word, mag vervaardig, besit, verbruik, verkoop, voorsien of gee aan ‘n ander persoon nie.

Dit is onwettig om alkohol te verkoop tensy u ‘n dranklisensie het wat deur die Drankraad toegestaan is. Daar is twee soorte lisensies:

  • ‘n “Binneverbruik” lisensie wat die verkoop en verbruik van alkohol op gelisensieerde persele toestaan. Hierdie soort lisensie word normaalweg aan hotelle, klubs, teaters en restaurante toegestaan. Tydelike lisensies mag ook uitgereik word om die verkoop en verbruik van alkohol by byvoorbeeld sportbyeenkomste of kermisse toe te laat. ‘n Geleentheidslisensie stel ‘n lisensiehouer in staat om alkohol na besigheidsure te verkoop.
  • ‘n “Buiteverbruik” lisensie laat die verkoop van alkohol toe wat weg van die perseel verbruik sal word. Voorbeelde van sulke persele is winkels, alkoholprodusente en drankwinkels.

Oor die algemeen sal ‘n lisensie nie toegestaan word aan enigiemand wat in die 10 jaar voor die aansoek om ‘n lisensie tronkstraf ontvang het sonder die keuse van ‘n boete nie. Oortredings van die Drankwet mag ‘n persoon ook diskwalifiseer van die verkryging van ‘n lisensie. In beide gevalle mag ‘n lisensie egter toegestaan word indien die betrokke gesagsliggaam reken dat die oortredings die aansoeker nie ongeskik maak om ‘n lisensie te besit nie.

Die Drankwet 59 van 2003 herroep die Wet van 1989 slegs in daardie provinsies wat provinsiale drankwetgewing gepromulgeer het (huidiglik Oos-Kaap en Gauteng).

Hierdie is ‘n algemene inligtingstuk en moet gevolglik nie as regs- of ander professionele advies benut word nie. Geen aanspreeklikheid kan aanvaar word vir enige foute of weglatings of enige skade of verlies wat volg uit die gebruik van enige inligting hierin vervat nie. Kontak altyd u regsadviseur vir spesifieke en toegepaste advies. (E&OE)

COMMON LAW MARRIAGE IN SOUTH AFRICA

A4_BIn South African law there is no such thing as a common law marriage. People simply believe that living together with another person for a continuous period of time establishes legal rights and duties between them. This is a common misunderstanding especially with young adults.

The only way to be protected in our law is to enter into a universal partnership agreement. Such an agreement clarifies the rights and duties of the partners. The agreement will determine what would happen to property and assets of the couple if they should decide to separate. The agreement is, however, not enforceable in so far as third parties are concerned. Only a valid marriage is enforceable against third parties. It is important to note that partners can sometimes be jointly and severally liable if they acted within the scope of the partnership. An agreement such as this will be legally binding as long as it contains no provisions that are immoral or illegal. If there is no agreement on the dissolution of a universal partnership agreement, a party would only be entitled to retain those assets which he or she has purchased and owns and further would be entitled to share in the assets proportionately in terms of the contribution which they have made to the partnership.

To prove the existence of such a partnership it must be shown that:

  • The aim of the partnership was to make profit.
  • Both parties must have contributed to the enterprise.
  • The partnership must operate to benefit both parties.
  • The contract between the parties must be legitimate.
  • There must be valid consent.
  • There is an intention to create a legally binding agreement.

Where there is no express agreement, a tacit agreement may be proved if it is found that it is more probable than not that such an agreement had been reached between the parties at the time of cohabitation.

Because the existence of a universal partnership is somewhat difficult to prove, and it may not be a claim that you wish to have to make or defend, it is advisable to consider entering into a contract that spells out how property should be dealt with on termination of the relationship by death or otherwise. Such a contract would provide some certainty for cohabitees regarding the division of assets and settlements of liability on termination of the relationship.

Some of the consequences of the absence of a legal ground between parties in such relationships are:

  • No exemption from donations tax in respect of donations between them.
  • Cohabitees do not benefit from the laws relating to the exemption from estate duty of bequests to spouses.
  • There is no reciprocal obligation of maintenance.
  • Cohabitee is not a recognised claimant if his/her partner dies intestate.
  • There is no right to property or assets that belong to cohabitee.
  • There is no reciprocal duty to contribute to household necessities.

The Domestic Partnerships Bill of 2008 is still in its formulation stage and it remains to be seen how it is to be implemented. In the current constitutional dispensation it is unlikely that a partner will be left in despair, taking into account the Domestic Partnerships Bill.

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).