Interim maintenance until date of divorce – husband’s nightmare and wife’s weapon?

This article gives an overview of the purpose of interim maintenance applications, what considerations are to be taken into account when determining maintenance, the difference between the nature of an interim maintenance application in the Regional Court and High Court, and the possible detriment to husbands with an interim maintenance order against them.Given the complicated nature of divorce proceedings, and the length of time required to finalise a divorce, the existence of interim relief until the date of divorce is often required by a party to a divorce who have been maintenance dependent on the other party during the subsistence of the marriage.

Rule 58 of the Magistrates’ Court Rules and Rule 43 of the Uniform Rules of Court make provision for a spouse to claim interim maintenance during the litigation process, a contribution towards costs of the pending matrimonial litigation, interim care of a child and interim contact with a child.

Rule 43 is being used far more often than Rule 58, because in the High Court it can take up to three years to get a trial date for a defended divorce, whereas, in the Regional Court, a defended divorce can be finalised within a few months. Therefore, interim maintenance is more important in High Court proceedings, because a party will have no other choice but to maintain himself/herself for up to three years until the divorce is finalised. Especially in the case of housewives who raised the children and cared for the home but have not been working or have not been economically active for years, a three-year wait for a trial date can result in a dire financial situation, if no provision is made for their maintenance until the date of divorce.

The other side of the coin is that a husband with a Rule 43 order against him, can be forced to pay maintenance for quite a lengthy period, especially if his wife as the plaintiff is well taken care of in terms of the Rule 43 order, then she will probably not be in a hurry to take the matter to trial.

A party can be entitled to a contribution towards legal costs. If a husband can afford a lawyer and good legal representation, his wife can be put in a position to litigate on an equal basis, by a Rule 43 or Rule 58 order compelling a contribution towards the wife’s legal costs.

Since it is possible to get a trial date in the Regional Court quite speedily, magistrates are often not inclined to waste too much time on an interim maintenance application, because it will not have a long-term effect, and it is better to determine the issue of maintenance at trial.

Rule 43 and Rule 58 orders cannot be taken on review, and cannot be appealed against, thus a husband with a detrimental Rule 43 or Rule 58 order against him can only apply for a variation of the original order, based on a change in financial circumstances. However, if he can afford to comply with the order, he has no other choice but to comply, and a failure to comply can lead to a contempt of court application against the husband. Rule 43 or Rule 58 orders can sometimes lead to parties settling the whole divorce sooner, especially in the High Court where a party will be compelled to comply with the Rule 43 order for three years.

The following factors are taken into account in the determination of maintenance: existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, their conduct so far as it may be relevant to the breakdown of the marriage, and any other factor which in the opinion of the court should be taken into account.

In Taute v Taute 1974 (2) SA 675 (E), it was determined that interim maintenance will be determined according to the “marital standard of living of the parties, her actual and reasonable requirements and the capacity of her husband to meet such requirements.” It was further held that, “I have found nothing, however, in the decisions to which I have been referred which justify in such maintenance the inclusion of extraordinary or luxurious expenditure even in the case where the husband is ‘very wealthy’ or ‘very rich’.”  This decision makes it clear that a wife will not be entitled to anything that she was not entitled to during the subsistence of the marriage, and that a court will not make a finding for luxurious expenditure.

Kroon v Kroon 1986 (4) SA 616 (E) held that, “The position in our law is that no maintenance will be awarded to a woman who can support herself.”  It was further held that, “What does the plaintiff want and what does she need? Wants and needs are two different things. People usually want more than they need.” This decision makes it clear that a woman who has no need for maintenance, because she earns an income and can support herself, will not be entitled to maintenance.

If parties were married for a long period of time, a party would be more likely to get interim maintenance, and permanent maintenance at trial. Furthermore, the age of the parties would play a significant role in determining interim maintenance and permanent maintenance, because, for example, for a 60-plus woman with no formal education, and who have no formal work experience, it will be difficult to obtain employment.

In Nilsson v Nilsson 1984 (2) SA 294 (C), it was determined that, “The shorter the duration of the marriage, the more important the conduct of the parties within the relationship – their respective ‘guilt’ or ‘innocence’ – would ordinarily be in relation to the question whether maintenance should be paid at all.” If a woman is responsible for the breakdown of the marriage, her conduct would weigh against her getting interim maintenance, especially in the case of a short marriage.

Interim maintenance remains a thorny issue, and in an ideal world, such orders would not have been necessary at all, which is more or less the case in a Regional Court divorce. However, in the High Court, it remains an important instrument to ensure that a divorce is handled in a fair manner, and that a wife is not being left without maintenance, or unable to effectively litigate against her husband.

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)

Migrant workers – is there any social insurance for them in the employment sphere?

In South Africa, not all risks are catered for by public schemes. The current public social schemes exist to deal with particular contingencies such as: unemployment, maternity, traffic accident-related injury or death, unemployment and employment injuries and diseases. When it comes to old age and health, private insurance schemes are considered. This position is the same for both employees ordinarily working in the country and migrant employees.In the employment sphere, however, social insurance for migrant employees are limited to only certain circumstances.

The Compensation for Occupational Injuries and Diseases Act, 130 of 1993 (“COIDA”) provides for compensation for disablement caused by occupational injuries or diseases sustained or contracted by employees in the course of their employment, or for death resulting from such injuries or diseases; and to provide for matters connected therewith. According to section 23(3)(b) of COIDA, where an employee performs his/her duties within South Africa for a period longer than 12 months, that employee is deemed to be employed in the Republic and, therefore, enjoys the protection of the Act. This principle is also applicable to persons who ordinarily work in the Republic, however, performs work on a temporary basis outside of South Africa.

Therefore, migrant workers also qualify for protection under COIDA. However, there is a duty on the employer to make the necessary arrangement for those employees with the Commissioner.

Where it is a case of a non-resident employee who qualifies for protection in terms of COIDA and social protection in another country where he/she performs work, following an occupational injury, he/she must elect to claim compensation either in terms of COIDA or in terms of the law of the other country.

When it comes to unemployment insurance, migrant employees seldom enjoy protection under the Unemployment Insurance Act, 63 of 2001 (“UIA”). According to section 3(1)(d) of the UIA , persons who enter the country for the purpose of carrying out a contract of service , apprenticeship or learnership, are not covered by the Act, if there is a legal or a contractual requirement (agreement or undertaking) that such a person must leave the country, or that such a person be repatriated, upon termination of the contract. Therefore, the employer and migrant employee will not be contributing towards the Unemployment Insurance Fund (“UIF”).

Unfortunately, this leaves migrant employees to be vulnerable and exploited by South African employers as they are seen as a “cheaper” labour option.

In South Africa, public insurance schemes mostly protect employees that are part of the formal sector. Therefore, the migrant employees who find themselves in the informal sector will not enjoy the limited coverage of South Africa’s public insurance schemes.

Accordingly, migrant employees are not protected to the same extent as employees ordinarily working in South Africa. However, legislation such as COIDA and UIA do provide for coverage for migrant employees in limited circumstances. This limited coverage usually only get utilised by employees in the formal sector.

In South Africa, not all risks are catered for by public schemes. The current public social schemes exist to deal with particular contingencies such as: unemployment, maternity, traffic accident-related injury or death, unemployment and employment injuries and diseases. When it comes to old age and health, private insurance schemes are considered. What is the position when it comes to migrant workers? Are they protected?

Migrant workers enjoy very limited social insurance coverage in South Africa under the Compensation for Occupational Injuries and Diseases Act, 130 of 1993 and the Unemployment Insurance Act, 63 of 2001.

Reference List:

  • A van Niekerk, N Smit, M A Christianson, M McGregor, BPS van Eck LAW@WORK 3rd Edition (2015).
  • Unemployment Insurance Act, 63 of 2001.
  • Compensation for Occupational Injuries and Diseases Act, 130 of 1993.

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)

When does a foreign system of law apply to your contract?

Let’s say I own a company in South Africa that makes and sells jewellery. The company is hugely successful and attracts international clients. A client who lives in Canada buys a piece of jewellery from my company, which is transported from South Africa to Canada. However, when the piece of jewellery arrives in Canada, the client finds that it is defective. Which system of law is applicable to the contract: Canadian Law or South African Law?

It is a requirement in the South African Law of Contract that, for a contract to come into existence, an offer to contract must be made by one party to the agreement (“the offeror”), which must then be accepted by the other party to the agreement (“the offeree”). It is pivotal to determine when and where such a contract is concluded, as this will give an indication as to which country’s system of law will govern the contract (assuming that all other elements for a valid contract have been satisfied).

The offeree may communicate his decision to accept the offer to contract by posting a letter to the offeror, or by sending the offeror an email. The method of communication utilised by the offeree will affect the place where and moment when the contract comes into existence; and, ultimately, which system of law is applicable to the contract.

The general rule is that a contract comes into being when and where consensus between the parties has been reached. This is typically the place where and moment when the offeror learns that the offeree has accepted the offer. However, there are exceptions to this general rule, which are discussed below.

  • Postal contracts

The court in Cape Explosive Works v South African Oil and Fat Industries Ltd 1921 CPD 244 explained that, when an offeree posts an acceptance letter to the offeror, the contract comes into being once the letter accepting the offer is posted to the offeror. In other words, the offeree need not follow up and ensure that the offeror has received his acceptance for the contract to be binding and enforceable.

  • Section 22 and 23 of the Electronic Communications and Transactions Act 25 of 2002 (“ECTA”)

Section 22 of the ECTA provides that “[a]n agreement concluded between parties by means of [electronic communications] is concluded at the time when and place where the acceptance of the offer was received by the offeror”. Further, section 23 reads as follows: “[electronic communications] used in the conclusion […] of an agreement must be regarded as having been sent by the [offeree] when it enters an information system outside the control of the [offeree] or […] when it is capable of being retrieved by the [offeror]”.

Therefore, unlike with a postal contract, the contract only becomes binding and enforceable when the offeree has sent off his electronic communication of acceptance of the offer to contract and the offeror has received or is able to retrieve such communication. In other words, the ECTA holds that a contract will come into existence where an email appears in the offeror’s inbox, but it has not been read; or, where the offeree leaves a message on the offeror’s answering machine, but the offeror has not listened to it yet.

For example, if X, who lives in South Africa, sends an email to Y, who lives in America, informing him that he accepts his offer to contract, the contract will come into existence at the moment that the email has been sent to the offeror and once it is received or capable of being retrieved by the offeror. For that reason, as the email will be received or be capable of being retrieved in America, the system of law applicable in this situation would be American Law (assuming that all other elements for a valid contract have been satisfied).

  • Agreement by the parties

As South African Contract Law emphasises the freedom of contract, parties to a contract are entitled to agree to terms stipulating when and where a contract comes into existence.

In sum, the system of law applicable to the contract will depend on whether the parties have agreed on a moment when and place where the contract should come into being. If no such agreement is reached, the applicable system will depend on the means chosen by the offeree to communicate his acceptance of the offer to the offeror.

It is, therefore, advised that parties to a contract agree on a moment when and a place where the contract should come into existence in order to avoid confusion as to which system of law will be applicable to the contract.

Reference List:

  • Cape Explosive Works v South African Oil and Fat Industries Ltd 1921 CPD 244.
  • Electronic Communications and Transactions Act 25 of 2002.
  • Van der Merwe et al Contract: General Principles 4 ed.
  • Hutchinson et al The Law of Contract in South Africa 3 ed.

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 be fairly dismissed for ill health or injury?

Recently you’ve become ill which has forced you to stay absent from the workplace for more days than you’re allowed to in terms of company policy. Picture yourself arriving at work one day after an extended absence from work due to illness. Your employer then states that your services have been terminated due to extended absence from the workplace for alleged abuse of sick leave. What should you do? What is the next step? Was your dismissal unfair? Can the employer fire you based on ill health, illness or injury? The Code of Good Practice: Dismissal is governed by Schedule 8 of the Labour Relations Act. The Act recognises 3 (three) grounds on which termination of employment might be justified. These are the conduct of the employee, the capacity of the employee and operational requirements of the business. It is the capacity, more specifically the incapacity, of the employee that is our current focus of the article.

Incapacity based on ill health or injury may be temporary or permanent. If an employee is temporarily unable to work in these circumstances or the employee has used too much sick leave due to ill health, the employer should investigate the extent of the incapacity or illness. If the employer discovers that the employee is likely to be absent from work for an unreasonably long period, the employer should investigate all the possible alternatives short of dismissal. In other words, the employer should attempt to accommodate the employee in any other way other than dismissal as an ultimate last resort.

Section 1 of the Act read with Section 27 of the Constitution both refer to the right of every person to fair labour practices. This is particularly relevant as the employee has the right and should be allowed the opportunity to state a case in response to the investigation and to be assisted by a trade union representative or fellow employee.

The investigation conducted by the employer into the circumstances of the employee should be approached from a mindset of attempting to resolve the problem by some sort of counselling and not from a mindset of misconduct and discipline.

What is the test to determine whether dismissal arising from ill health is fair or not?

Any person faced with answering the above-mentioned question should always consider whether or not the employee is capable of performing the work. If the employee is not capable of performing the work, then the extent to which the employee is able to perform the work, the extent to which the employee’s work circumstances might be adapted to accommodate the illness and the availability of any suitable alternative work for the employee must be considered.

The above considerations were confirmed in Steenwerke v Bobbejaan N.O. and Others where the Court emphasised the factors to be considered when any person determining whether a dismissal arising from ill health is unfair or not. The Court went further by stating that item 10 of Schedule 8 places a duty on the employer to make recommendations or find alternative duties for the employee and not the other way round.

Where the situation arises that the employee can no longer perform work in his/her position due to an incapacity based on ill health, the employee is unable to be accommodated and/or there exists no appropriate alternative employment within the company or otherwise, the employer may terminate the employment relationship by reasonable notice to the employee.

An employer who summarily dismisses an employee without taking into account the listed considerations mentioned above as contained in Schedule 8 of the Labour Relations Act, stands a higher chance of possibly acting substantively and/or procedurally unfair.

 

Reference List:

  • Section 27 of the Constitution of the Republic of South Africa, 1996.
  • Schedule 8 of the Labour Relations Act No. 66 of 1995.
  • Steenwerke v Bobbejaan N.O. and Others (JR923/2013) [2016] ZALCJHB 60 (22 February 2016).
  • Ivan Israelstam Disciplinary Hearings: Employees’ Rights.

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)

Private schools in South Africa are not above the law

Private schools in South Africa are essentially autonomous in how they govern and operate. But does this entitle private schools to operate to such an extent that they regard themselves above the law?  A father in Durban sued a private school for victimising his son as he was in arrears with his school fees. This groundbreaking judgment recently handed down, gives private schools “food for thought” as to how they operate.

The background of this case, inter alia a minor child attended a private school in Durban. In and during the first few months of 2016, the parents of the minor child fell into arrears with the school fees. Between January 2016 and February 2016, there were letters and telephone calls from the school, demanding payment from the parents. The parents pleaded to the school for leniency and to afford them time to pay their arrears, as they were experiencing financial setbacks. The school did not accept this excuse and confirmed that they will not accept repayment terms and requested the full settlement of the arrear amount, failing which, the minor child would not be able to write the upcoming exams in May 2016. Although the parents pleaded with the school to allow their child to write the exams and that they will settle the fees by end of May 2016, the principal refused to negotiate any repayment terms. Subsequently the minor child, in terms of the school’s exclusion policy, was asked to sit in the art room while the rest of the children wrote the exams.

The father brought the application in the Kwa-Zulu Natal High Court citing the school and the principal as first and second respondent respectively. In his application, the applicant requested the Court to declare the exclusion policy, practised by the school, as unconstitutional.

The father was of the opinion, that in terms of the exclusion policy, whereby the second respondent instructed his son to sit in the art room, whilst the other children wrote the exam, his child’s interests were violated, in terms of S28(2) of the Constitution, which states, “a child’s best interest is of paramount importance in every matter concerning the child”. A further violation was in terms of S29 of the Constitution which states that everyone has a right to basic education.

The first and second respondent argued that it had no option but to implement the exclusion policy, as the applicant was not paying the school fees, which was required for the school to operate. The respondents further argued that the applicant did not need to enrol his child in a private school if he could not afford the fees, as there is the option of the public schools. It was further argued by the respondents that they exercised the exclusion policy rather than institute legal action, in order not to incur legal costs.

Should the second respondent have applied the contractual obligations that existed between the parents and first respondent, to enforce payment of the school fees, rather than subject the minor to the exclusion policy, which victimised, degraded and humiliated the child? But the biggest question is, aren’t private schools independent, which then consequentially are above the operations of the South African Schools Act or the Constitution?

After considering both the applicant and respondents’ arguments, the Court concluded that there was a valid contract between the applicant and the respondents. In terms of the signed contract, the first respondent had the necessary right to proceed with legal action against the applicant for non-payment of fees, which it should have exhausted first before taking any other steps!

The Court went on to say that a fair procedure must be followed. While it is understandable that schools, be it private or public may be allowed to exclude students, a correct and fair procedure must be followed. When making the decision to exclude a child, the schools’ representatives must bear in mind the best interest of the child, regardless if it is the child’s conduct or the parents’ conduct. It is not a necessity that parents must enrol their children in private schools and there are no rules and policies that restrain parents from doing so. One would assume that the parents consider the financial aspect first before enrolling their child in a private school. But parents’ financial circumstances can change, and private schools should be reasonable and have empathy to these changes and guide parents through this difficult time without victimising the child, as it is not the child’s fault as to the parents’ change in financial position. Time should be given to the parents to seek alternative solutions to the problem, e.g. change schools, make arrangements for a payment plan etc.

The Constitution is the sovereign law of our country and any conduct that goes against the spirit of the Constitution will be declared invalid by the courts, which the courts have the power to do so. Hence, implementing the exclusion policy for non-payment of school fees by the school was found invalid by the courts and unconstitutional.

Thus, private schools and even public schools must always remember, that they are there to protect our children and not cause them harm or humiliate them. Our children are the future leaders of our country and should be led by example.

Should the Constitutional Court ratify this ruling, approximately 760 private schools around the country will be impacted. We wait to hear.

Reference List:

  • NF MHLONGO vs JOHN WESLEY SCHOOL AND DARREN TARR KZN 4594/16

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)

What does 2019 have in store for the economy and the property market?

There is no doubt that 2018 was a very challenging year for both the economy and the property market. As 2019 is in full swing, you can’t help but wonder what challenges this year will hold for both the economy and the property market. In 2018, it was mainly business as usual, however, it is important to note that the demand for properties between the 3-million and 5-million mark decreased through the year. Reasons for this could have been the weak economy, political uncertainty and land ownership concerns.

So, what will the market have in store for home buyers/sellers in 2019?

It is argued that the market will most likely remain flat during the first few months of 2019. The reason being that we are heading towards the May elections, and this could be a turbulent period in 2019. In terms of the economy, there is a feeling of positivity in the air as the economy is expected to start lifting in the middle of 2019. The feeling of positivity can be attributed to the fact that the rating agencies have kept a stable outlook and President Ramaphosa has shown his commitment to eradicating corruption within the government.

It’s important to note that the final quarter of 2018 also had an impact on the economy and the property market for 2019. The festive season has come and gone, and as can be expected, many consumers found themselves indulging in the festivities and overspending. This has impacted many South African households’ finances, as there is now an increased pressure to meet monthly commitments in terms of housing bonds and rents. This should only have an impact on the economy and the property market in the early part of 2019.

It is also expected that the interest rate will go up with 2% over the next 18 to 24 months. This will, without a doubt, put even more pressure on household finances, in terms of higher bond and credit repayments, as well as cost hikes. This will have a huge impact on affordability.

If you are planning on buying or selling property in 2019, it’s important to keep price expectations realistic. Buyers should also strike while the iron is hot and not wait for too long, as all economies and property markets are subject to ups and downs. In conclusion, 2019 is the perfect year to buy property. Ensure that you do your research and make well-informed decisions when it comes to the property you want to buy, as well as the purchase price of the said property.

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)

Electronic signing of documentation

The commercial world is currently moving to greater levels of digitisation. Organisations are implementing automated and electronic solutions in an effort to improve efficiency and better the environmental footprint at the same time. The move to digitisation and electronic signatures prompted questions surrounding the legality of these documents. This article aims to highlight certain legal aspects of electronic signatures in both a general business environment and an audit industry environment.

Different types of electronic signatures

The Electronic Communications and Transactions Act, 25 of 2002 (ECTA) differentiates between standard electronic signatures and advanced electronic signatures. Standard electronic signatures include digital or scanned signatures. An example would be using an iPad to sign a document or merely printing, signing and scanning the document. Advanced electronic signatures are defined as electronic signatures which results from a process which has been accredited by the Authority as stipulated in Section 37 in the ECTA, for example, Quicklysign.

Standard electronic signatures are sufficient in most instances if and when the method of signing had not been agreed upon by the parties beforehand. Advanced electronic signatures are required for a suretyship agreement as well as signing as a Commissioner of Oaths (Section 18 of ECTA). Some documents are specifically excluded from being signed electronically (as per Schedule 2 of ECTA) for example:

  • an agreement for alienation of immovable property;
  • an agreement for the long-term lease of immovable property in excess of 20 years;
  • the execution, retention and presentation of a will; and
  • the execution of a bill of exchange as defined in the Bills of Exchange Act, 34 of 1964.

Electronic signature of financial statements

Stakeholders in the audit industry will be all too familiar with the challenges being posed by printing various sets of financial statements, only to be scanned again after signature. The industry seems to be one of those that will benefit from the efficiencies provided by electronic signatures but are these electronic signatures on a director’s and auditor’s report acceptable?

The Independent Regulatory Board of Auditors (IRBA) identified the increase in usage of electronic signatures on financial statements and audit reports and reported on the matter through the 2017 public inspections report. IRBA communicated that the following challenges are experienced by the practice of electronic signatures:

  • uncertainty as to the identification of the final version of the auditor’s report and annual financial statements;
  • uncertainty as to the approval by the company’s board of the exact final version of the annual financial statements; and
  • the risk that the incorrect annual financial statements are published.

We are of the opinion that an advanced electronic signature service provider, as approved by the ECTA, will sufficiently mitigate the above-mentioned challenges identified by IRBA. Contact us in order to obtain more information as to how we can assist in finalising documentation efficiently.

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)

Drones: How is it regulated?

Drones, also sometimes referred to as Remotely Piloted Aircraft Systems, are becoming increasingly popular amongst the civilian population. This is due to the fact that it is becoming widely available and increasingly affordable. Drone manufacturers are catering for all different types of consumers and different budgets, with some drone models retailing at less than a R1 000.00. This is good news for drone enthusiasts or those just looking for a fun past time activity. However, this increased popularity and accessibility means that more and more people own drones which result in increased drone activity in our airspace – which could cause chaos.

Disruptions at big international airports such as Heathrow and Gatwick have illustrated the chaos which can be caused by drones when operated illegally and irresponsibly. Numerous flights were suspended between 19 and 21 December 2018 at Gatwick Airport, Britain’s second-biggest hub, after drones were spotted in the vicinity of the airport in order to ensure the safety of the aircraft and passengers. This led to the disruption of thousands of travellers during the festive period.

One must distinguish between the operation of drones for commercial purposes vis-a-vis recreational purposes. The regulation of commercial drone operations (i.e., whenever a drone is used for commercial gain) does not fall within the scope of this article. However, readers are warned that one must have a Remote Pilot Licence when operating a drone for commercial purposes, and such a drone must be registered.

The remainder of this article will discuss how the use of drones for recreational purposes are regulated in South Africa. The South African Civil Aviation Authority (“SACAA”) has issued regulations which must be complied with when operating a drone for recreational purposes. You are not, according to these regulations, allowed to fly your drone in a manner which will in any way endanger the safety of another aircraft or person. This means that you are not allowed to:

  1. Fly your drone within 50 metres of a person or group of people. The regulations list sports fields, social events and schools as examples of places where you will be in contravention of this regulation should you fly there.
  2. Fly your drone within 50 metres of any property, unless you have obtained the consent of the property owner.

SACAA’s regulations further regulate the usage of drones for recreational purposes by imposing the following restrictions:

  1. You are not allowed to fly near any manned aircraft.
  2. You are not allowed to fly within a 10 km radius of any aerodrome (i.e. any airport, helipad, or airfield).
  3. Drones for recreational usage may not weigh more than 7 kg.
  4. You are not allowed to operate your drone within any restricted, controlled or prohibited airspace.
  5. Operating a drone more than 150 ft from the ground is prohibited.

SACAA’s regulations furthermore require drone operators to always maintain a visual line of sight with their drones when flying. This means that you must always be able to see your drone. Drone enthusiasts must only operate their drones in daylight and in clear weather conditions and should always inspect their drone before a flight.

It is of utmost importance to comply with the above regulations in order to ensure that you do not incur liability for any damages caused to people or their property. Readers are encouraged to do the necessary research in order to ensure that there are no regulations or by-laws which apply to their specific geographical area, since some local authorities may have specific restrictions in place.

Reference List:

  • http://www.caa.co.za/Pages/RPAS/Remotely%20Piloted%20Aircraft%20Systems.aspx
  • http://www.nameandshame.co.za/Articles/Drones-what-the-law-says

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)

Choosing guardians for your minor children

Choosing guardians for your children is one of the hardest and most important decisions you will ever have to make. The thought of someone other than you raising your precious children is gut-wrenching. The worst part about it?

You’ll never be fully comfortable with the choice, because no one can do as good a job as you. There is no perfect choice. However difficult it may be, naming guardians is a must-do for every parent.

My husband and I have two minor children. I am concerned about who will look after our children in the event of my husband and I passing away at the same time. We have been advised to nominate guardians in our wills. What should I keep in mind when choosing guardians?

Choosing guardians for your children is one of the hardest and most important decisions you will ever have to make. The thought of someone other than you raising your precious children is gut-wrenching. The worst part about it? You’ll never be fully comfortable with the choice, because no one can do as good a job as you. There is no perfect choice. However difficult it may be, naming guardians is a must-do for every parent. If the thought of placing the future of your children in someone else’s hands makes you queasy, imagine leaving the decision to someone you do not like, or do not even know. That is why parents should pick legal guardians – the persons who should raise their children if both parents die before the children turn 18.

When preparing a Last Will and Testament, the emphasis is typically on the disposition of property. However, selecting guardians to care for your minor children and nominating them in your Last Will and Testament is just as, if not more important, than distributing assets. The transition to life with guardians is especially traumatic as children come to terms with new parental figures, likely following the untimely death of one or both parents. The guardians you choose will be responsible for helping to heal this wound. It is of the utmost importance to choose guardians with whom you and your kids are comfortable and who has the emotional intelligence, time and interest to raise your children.

Choosing guardians

The first hurdle in choosing guardians is finding someone who is willing to act in such an important and responsible capacity. Raising someone else’s children is not a decision potential guardians should take lightly, as assuming guardianship will change the rest of the guardians’ lives, as they step into the roles as surrogate parents. Besides finding willing persons, choosing guardians involves objective and subjective assessments different from choosing other fiduciaries such as trustees. Guardians should be reliable and stable, with sound judgment and values that are similar to your own. The guardians will need to comfort, teach and encourage your children as they grow towards adulthood. Guardians who already have a warm and loving relationship with your children would be immensely valuable in such an emotionally trying transition.

Selecting family members

Instinctively, many think the right guardians for their children are family members. However, in some cases, nonfamily members may be a better fit. Naming friends as guardians is increasingly common, though relatives are still the most popular choice. While family is frequently an obvious choice, circumstances may make this impractical or undesirable. Hopefully your children are comfortable with grandparents, or an aunt and uncle who may have similarly aged children of their own. If this is not the case, close friends with similar values, who live nearby, and who have kids of their own, may be a better option than faraway relatives. The choice is specific to your lifestyle and your relationship with your family.

Naming alternate guardians

Unfortunately, couples divorce and families break up. Choosing a couple as guardians could turn out to be problematic if they divorce or one is otherwise no longer able to serve in the role. Such a scenario could give guardianship to a person whom you are less inclined to have raise your children. If alternates are not named and the nominated guardians are unable to care for your children, the decision as to their care could end up being made by a court. As a result, it is advisable to name alternates in case the first choice is unwilling or unable to act. This way your wishes can be carried out and the paths of your children’s lives are not at the discretion of a judge.

Revisiting your choice of guardians

Once you have carefully selected the guardians and alternates and have nominated them in your Last Will and Testament, it is important to remember to revisit the choices as circumstances change. As children (and guardians) age, their needs and abilities also change. You will want to make sure that the people you selected a few years ago are still the right choice today.

 

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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)

Buying property online

We all know the hassle of moving, even if it is just around the corner. Due to family reasons, employment opportunities, or university studies, it is not uncommon for people to not only move down the road but also to move to different provinces in South Africa.

This is indeed a challenging task, however, technology has made it a lot easier to find the perfect home for you, even if you are nowhere near it.

Here are some tips you can follow if you are planning on buying property in another province and need to find your new home:

  1. Seize the power of social media:

Social media is a quick and efficient way to let your friends and family on social media know about your home search. The more people that know about your planned move, the more chance you have of someone in that area knowing of the perfect fit for you.

  1. Go online:

The first place that you can start your property hunt is online. You can easily gain access to massive amounts of available properties and information from the comfort of your own home.

  1. Virtual tours:

Don’t just look at the photos of the property posted online. A lot of properties have full virtual tours which means that you can take a virtual stroll through the entire property without physically being there. If the property does not have a virtual tour, you can use tools such as Google Maps to view the property and neighbourhood from the outside, giving you a clear indication of whether this neighbourhood is the perfect fit for you.

  1. Visit the area:

Visiting the surrounding area is ideal, but not always possible, especially if the property is far away. However, it is still a good idea to visit the area before moving. When you visit the area, you will have the opportunity to see the area and surrounds in person. You can plan your visit ahead, and schedule your viewings with your estate agent.

 

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)

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