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TO MARRY OR NOT TO MARRY…

When a man proposes marriage to the love of his life and she accepts the proposal and they become engaged, they are said to have concluded a contract to marry in the future. When an engagement is called off one often gets the situation where the aggrieved party wants to sue his/her ex for breach of promise.

Recent case law regarding the breach of promise to marry

Although there is frustration and heartbreak that may be experienced at the end of an engagement, the unfortunate reality of the matter is that it is not that easy to succeed in a monetary claim against somebody who is not intent on fulfilling his/her promises.

Our common law has, over the years, recognised the principle that the aggrieved party has a claim for breach of promise. Traditionally this claim comprises two parts, namely:

  1. The delictual claim which the aggrieved party would have under the action injuriarum for contumelia, in other words, damages for the humiliation caused as a result of the break-up of the relationship; and
  1. The contractual claim for the actual financial loss suffered by the aggrieved party as a result of the break-up of the relationship of the parties.

Van Jaarsveld vs Bridges (2010) SCA

In the Supreme Court of Appeal case Van Jaarsveld vs Bridges (2010), it was found that no claim in South African law exists other than actual expenses incurred in the planning and preparation of the marriage.

In the judgement DP Harms, in respect of breach of promise, draws attention to a court’s right and more importantly, duty to develop the common law, taking into account the interests of justice and at the same time to promote the spirit, purport and objects of the Bill of Rights.

DP Harms said that he is unable to accept that parties, when promising to marry each other, at that stage of their relationship would contemplate that a breach of their engagement would have financial consequences as if they had in fact married. The assumption of the two parties is that their marital regime will be determined by their subsequent marriage. DP Harms then concluded that in his view an engagement is more of an unenforceable pactum de contrahendo, providing a spatium deliberandi: “a time to get to know each other better and in which they would decide whether or not to finally get married.”

ES Cloete vs A Maritz (2013) WCH

The question whether or not the claim for breach of promise is a valid cause of action in South African law was once again considered in the Western Cape High Court. In this Court, Judge Robert Henney was the presiding Judge in the matter of ES Cloete vs A Maritz.

Miss Cloete claimed that Mr Maritz proposed formally to her in Namibia on the 9th February 1999 with an engagement ring, and she accepted.

The relationship was turbulent and a decade later Maritz called off the engagement and the intended wedding, telling her that he no longer wanted to marry her or even see her, and that he had someone new in his life.

Cloete instituted action against Maritz and alleged that Maritz’s refusal to marry her amounted to a repudiation of the agreement which they had reached 10 years earlier.

Her claim

There were three aspects to Cloete’s claim:

  1. She wanted repayment of R26 000.00 that she had given him in 1994 and 1996 for a business he was involved in.
  1. She wanted R6.5 million to make up for the financial benefits she would have enjoyed had they concluded the marriage, including amounts for the use and enjoyment of the house commensurate with the lifestyle enjoyed and maintained by the parties at the time of their cohabitation. She also wanted maintenance of R8 500.00 a month for 25 years.
  1. Finally she wanted R250 000.00 in damages for breach of promise, impairment to her personal dignity and her reputation.

His claim

Maritz denied the allegations that Cloete has made and stated in replying papers that Cloete was in fact the one who had called off their wedding and he had merely accepted it. Maritz raised a special plea that “breach of promise” did not constitute a valid cause of action based on the Supreme Court of Appeal’s judgement in Van Jaarsveld vs Bridges 2010 (4) SA 558 (SCA), a judgement which this court is obliged to follow.

Judgement

In his judgment Judge R Henney said: “Clearly, to hold a party accountable on a rigid contractual footing, where such a party fails to abide by a promise to marry does not reflect the changed mores, morals or public interest of today.”

Judge R Henney went on to say in his judgement: “It is my view that considerations of public policy and our own society’s changed mores cannot permit a party to be made to pay prospective damages on a purely contractual footing, where such a party wants to resign from a personal relationship and thus commits a breach of a promise to marry. Such a situation is in my view entirely untenable and cannot be allowed.”

The judge also said: “As pointed out by Sinclair, The Law of Marriage Vol 1 (1996), to hold a party liable for contractual damages for breach of promise may in fact lead parties to enter into marriages they do not in good conscience want to enter into, purely due to the fear of being faced with such a claim. This is an untenable situation.”

Conclusion

The world has moved on and morals have changed. Divorce, which in earlier days was only available in the event of adultery or desertion, is now available in the event of an irretrievable breakdown of the marriage. There is no reason why a just cause for ending an engagement should not likewise include the lack of desire to marry the particular person, irrespective of the ‘guilt’ of the latter. Unwillingness to marry is clear evidence of the irretrievable breakdown of the engagement. It appears illogical to attach more serious consequences to an engagement than to a marriage.

Maritz`s special plea was upheld and it was found that the claim for breach of promise is not a valid cause of action in South African law. As appears from the above decision, no claim in law exist other than actual expenses incurred in the preparing of the marriage. This effectively excluded any damages for breach of the promise to marry.

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.

VISAGIEVOS PARTNERS WIN THE CAPE TOWN ATTORNEYS ASSOCIATION GOLFDAY CUP

Two Partners form VisagieVos Attorneys, Werner Greeff and Jaco van der Westhuizen have won the 33rd Annual Cape Town Attorney’s Association Golf day held at Mowbray Golf Club on 3 October 2014.

The “Attorneys and Advocate Golf Day” as it is known by the legal fraternity is an annual golf day arranged by the Cape Town Attorneys Association in which Practicing Attorney members of the Cape Law Society as well as Advocates and Supreme Court Judges compete against each other in three different competitions on the Golf Day. The competition has been held every year since 1981 and VisagieVos had previously also won the competition in 1995.

Our partners won the floating trophy for the Attorneys in the 2 Ball Better ball competition between all the Attorneys playing on the day and Werner Greeff also won the golf day for the player with the lowest individual score. He further contributed towards the Advocates Cup in which he and his partner Adv Henco De La Rey also won the Advocates competition.

Werner Greeff is a partner in the Commercial and Property law department and head of the Estate Department and Jaco vd Westhuizen heads up the Insurance Law Department and we congratulate them on their performance and achievement.

SONDE MET DIE BURE

Die vraag op almal se lippe is, wat kan ek doen aan my buurman se bome en plante wat skade aan my eiendom en ongemak vir my veroorsaak? Hy het natuurlik ‘n reg om sy eiendom te benut soos hy wil, maar wat van my reg om my eiendom te benut en te geniet? Sy reg om sy eiendom te geniet kan tog sekerlik nie ten koste van ‘n ander persoon wees nie?

Bome met laterale wortelstelsels is gewoonlik die sondebok in dispute tussen bure. In die saak Bingham v City Council of Johannesburg 1934 WLD 180 het die munisipaliteit bome langs ‘n voetpad geplant vir versieringsdoeleindes. Die probleem was dat die bome wat hulle gekies het, eikebome was wat sterk laterale wortelstelsels het wat die omliggende grond dreineer. Die blomme en struike in Bingham se tuin het as gevolg hiervan in die slag gebly en, nog erger, die sterk wortelstelsel was besig om sy weg te vind  na die huis se fondasie. Omdat die boom se wortelstelsel ‘n bedreiging vir die eiendom (die woning) ingehou het, het die hof die munisipaliteit beveel om die bome te verwyder.

In Vogel v Crewe and another [2004] 1 All SA 587 (T) is die kwessie van boomwortels weer eens in die hof bespreek. Vogel en Crewe was bure en Crewe was van mening dat ‘n boom wat twee meter van die gemeenskaplike grensmuur geplant was, die oorsaak van al die probleme op sy eiendom was. Volgens hom het die boom se wortelstelsel skade aan die grensmuur aangerig en blare van die boom het in sy swembad geval en ook sy geute en rioolstelsel verstop. Die hof se benadering was gebaseer op ‘n objektiewe toets van redelikheid. Hulle het die voordele wat die bewaring van die boom inhou, soos die visuele genot, skaduwee en produksie van suurstof, opgeweeg teen die ongerief wat dit vir Crewe veroorsaak het. Crewe was egter nie in staat om te bewys dat die probleem met die blare in sy swembad, geute en rioolstelsel afkomstig was van die spesifieke boom nie en die hof het bevind dat die grensmuur maklik herstel kon word.  Geen drastiese aksie, soos die verwydering van die boom, was dus nodig nie en Crewe se aansoek het nie geslaag nie.

Uit die voorgaande is dit duidelik dat die hof slegs die verwydering van ‘n boom sal gelas indien die boom se wortelstelsel ‘n werklike en onmiddellike bedreiging vir die eiendom inhou. Hulle sal nie die verwydering van ‘n boom gelas weens takke wat oor ‘n muur hang of blare wat in ‘n erf val nie.

In Malherbe v Ceres Municipality 1951 (4) SA 510 A is bevestig dat indien jou buurman se boomtakke oor jou muur groei of die wortelstelsel jou eiendom binnedring en hy weier om dit te verwyder, jy die reg het om die takke en wortelstelsel by die grensmuur af te kap.

Hopelik sal julle in staat wees om boomverwante geskille op ‘n hoflike wyse te skik, en onthou, jy het ook die reg om jou eiendom ten volle te geniet.

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.

DONATIONS

Whether you are thinking of helping your son financially to enable him to purchase his first property or donating money towards a worthy cause, there are some things to keep in mind. A donation is defined in the Income Tax Act No 58 of 1962 as “any gratuitous disposal of property including any gratuitous waiver or renunciation of a right.” The donor may therefore not receive anything in return from the donee, as this will constitute an exchange agreement.

There are two types of donation, viz. donatio inter vivos (donation between two persons who are both alive) and donatio mortis causa (a donation where the donee will only receive the donation on the death of the donor).

The requirements for both an inter vivos and a mortis causa donation are:

  1. The donor must make an offer to donate, which offer must be accepted by the donee;
  2. The donor must have the necessary legal capacity to make the donation and the donee must have the necessary legal capacity to accept the donation;
  3. Anything that a person can trade (in commercio), can be donated;
  4. A donation must be legal and feasible; and
  5. A donation must be identified or identifiable.

Donations can also be withdrawn. In the case of an inter vivos donation, the donor can at any time before the donee accepts the donation, withdraw such donation. After acceptance of the donation by the donee, a valid contract has been formed and the donor will only be able to withdraw the donation in the case of gross ingratitude on the part of the donee, e.g. if the donee threatens the donor’s life. A mortis causa donation can be repealed at any time before the donor’s death, as the donation will only be ratified on the death of the donor.

Finally, and probably of the most importance to some people, is the matter of donations tax payable to the Receiver of Revenue. Currently donations tax is calculated at 20% of the fair market value of the property donated.

In terms of article 59 of the Income Tax Act, the donor is liable for payment of donations tax within three months after the donation was made. If the donor fails to pay the tax timeously, the donor and the donee will be jointly and severally liable for the payment thereof. An individual can make a donation of R100 000 per annum, free of donations tax.

There are also a few exemptions in terms of section 56 of the Income Tax Act, which should be noted. They include the following:

  1. A donation in terms of a duly registered prenuptial or postnuptial contract to the spouse of the donor;
  2. A donation between spouses who are still married to each other;
  3. A donation in the form of donatio mortis causa (this donation occurs in terms of the donor’s will and is therefore not subject to donations tax);
  4. A donation that was cancelled within six months after it was made; and
  5. Donations to certain public benefit organisations.

If spouses are married in community of property they should pay attention to section 57A of the Income Tax Act. If any property, which forms part of the joint estate of both spouses, is donated by one of the spouses, such donation shall be deemed to have been made in equal shares by each spouse. However, if property that has been donated by one of the spouses belongs to only that spouse (the donor), the donation shall be deemed to have been made solely by the spouse who made the donation.

There are several factors to keep in mind when making a donation and it is therefore advisable to consult with an expert to discuss the tax and legal implications before a decision is made.

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.

ADMINISTERING OF AN ESTATE

The administering of a deceased estate is regulated by the Administration of Estates Act No 66 of 1965 (as amended) and divided according to a valid will or the Intestate Succession Act No 81 of 1987 (as amended) or a combination of both acts.

Various other acts and regulations may, however, also be applicable, like those applicable to income tax (with due allowance for VAT and CGT), Estate duty and Donations tax, and support of surviving spouse.

When someone dies, his/her estate must be reported to the Master of the High Court as soon as possible, and certain report documents, together with the original will, where applicable, should be delivered to the Master.

In the case of estates with a gross value of less than R125 000 the Master may dispense with an official appointment of an Executor to execute the required administering process. In all other cases an Executor will be appointed by the Master, who will issue an Executor’s letter to the appointed Executor.

As soon as the Executor’s letter has been issued the formal administering of the estate, which the Executor has to follow, will commence. One of the Executor’s first tasks would be to announce to the creditors, acquire details regarding estate assets and have it valued if necessary, and recover certain assets. Known and filed liabilities should be investigated and attention must be paid to income tax.

The Executor is now compelled to submit a liquidation and distribution account (statement of assets and liabilities) to the Master of the High Court within six months after being issued with the Executor’s letter, or ask for a formal postponement. This estate account will indicate all assets and liabilities, distribution of heirs and details of assets outside the estate which are directly payable to beneficiaries.

The Master will check the estate account and then issue a questionnaire to the Executor. As soon as the Master has granted approval the Executor may proceed to announce the account as being open for inspection for 21 days at the Master and the nearest Magistrate’s Office.

Should any written challenges be submitted, it should be dealt with according to the regulations in the Administration of Estates Act. Should there be no challenges, or when the Executor has disposed of all challenges, may the Executor proceed to make payments to heirs and carry over any other assets to the beneficiaries.

In most cases the administering process should not be complicated, therefore it would be possible to finalise within a fair period of time (approximately 6 to 9 months). There are, however, many obstacles which may slow down this process and even bring the administering process to a virtual standstill. Some of the most well-known and general obstacles are poor service from government and private institutions, invalid and unpractical wills, shortage of cash, quarrels and disputes among family members and beneficiaries, lack of information, disorder in the tax and other affairs of the deceased, lawsuits before and after death, and legal postmortems in case of an unnatural death, which may sometimes be required before policies can be paid out.

It is therefore clear that the administering of an estate is a specialised environment which should be left to capable people with knowledge of the Administration of Estates Act and years of experience. Ignorance regarding the run of events as well as errors of judgement may eventually cost you dearly if you don’t make use of the available expertise.

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.

 

INFORMELE BESLUITE DEUR HUISEIENAARSVERENIGINGS

Die meeste huiseienaarsverenigings het streng voorskrifte wat die estetiese voorkoms van geboue binne die landgoed betref. Dit sluit gewoonlik heinings en ander kleiner aanbouings in, wat nie altyd deur die huiseienaar self as ‘n bouprojek beskou word wat binne die reëls van die huiseienaarsvereniging, die Memorandum van Inkorporasie (MVI) of die Memorandum van Assosiasie (MVA) val nie. Die huiseienaar dien dan nie planne en/of tekeninge in vir formele goedkeuring deur die trustees of direkteure van die vereniging nie.

Sommige huiseienaars omseil die voorgeskrewe formele proses deur ‘n trustee of direkteur uit te nooi vir ‘n informele gesprek en beduie dan met groot gebare hoe die beoogde prieel of heining daar sal uitsien. Enige instemmende kopknik deur die trustee of direkteur word deur die huiseienaar as “goedkeuring” van die beplande projek beskou.

Die howe het soos volg beslis in verband met die “toestemming” verleen deur ‘n trustee tydens ‘n informele byeenkoms, spesifiek in gevalle waar die MVI of MVA van die huiseienaarsvereniging ‘n duidelike prosedure voorskryf vir die verkryging van goedkeuring vir enige bouprojek of verbetering:

  1. ‘n Trustee of direkteur moet, voordat hy ‘n plan goedkeur, hom eers deeglik vergewis van alle oorweginge wat die landgoed in die geheel raak en nie bloot die persoonlike verhouding wat hy met die huiseienaar het, in ag neem nie. Om behoorlik ingelig te wees, moet ‘n trustee normaalweg ‘n besluit neem in komitee sodat die aangeleentheid gedebatteer kan word. Die trustee se besluit moet geneem word met bewustelike nakoming van die voorskrifte van die MVI of MVA, welke ookal van toepassing is, en met inagneming van die langtermynbelange van die lede. As die trustee hiermee in versuim bly, impliseer dit dat hy nie behoorlike aandag aan alle toepaslike oorweginge geskenk het nie. Dit is moontlik om die verlening van toestemming aan iemand toe te reken in sowel sy persoonlike as amptelike hoedanigheid.
  2. Die aard van die verhouding tussen huiseienaars en ‘n huiseienaarsvereniging, daargestel deur die onderskrywing van die MVI of MVA, vestig ‘n ooreenkoms waarvolgens elke huiseienaar hom vrywillig gebonde ag aan die besluite geneem deur ‘n liggaam van verkose trustees aan wie die reg en mag verleen is om bindende besluite te neem oor sake wat die verhoudinge onderling en die landgoed in die algemeen raak.
  3. Daar moet verder daarop gelet word of skriftelike toestemming verleen is deur die trustee aangesien sodanige optrede deur die trustee ‘n bykomende oorweging is in die beoordeling of dit ‘n formele besluit daarstel al dan nie.

Kyk veral Hoosen & Others NNO v Deedat 1999 (4) SA 425 (SCA) en Khyber Rock Estate East Home Owners Association v 09 of Erf 823 Woodmead Ext 13 CC, ‘n uitspraak deur Sy Edele regter Spilg in die Witwatersrandse Plaaslike Afdeling onder saaknommer 7689/2006.

Waar die huiseienaar nie die voorgeskrewe handelswyse gevolg het nie, kan ‘n informele gesprek oor die bouplanne van ‘n huiseienaar nie beskou word as ‘n formele besluit geneem deur die trustees van die huiseienaarsvereniging nie.

In die geval waar die huiseienaar die informele toestemming as ‘n “besluit” geneem deur die trustees van die huiseienaarsvereniging beskou, sal die howe nie inmeng met die besluit geneem deur ‘n huiseienaarsverening nie behalwe op die erkende gronde van regterlike hersiening soos toegepas op vrywillige assosiasies wie se lede hul tot die reëls van die assosiasie verbind het, wat insluit die afwenteling van besluitnemingsbevoegdheid na ‘n verkose liggaam van trustees. (Turner v Jockey Club of South Africa 1974 (3) SA, SA Medical & Dental Council v McLoughlin 1948 (2) SA 355 (AD) en Marlin v Durban Turf Club & Others 1942 AD 112).

Trustees en direkteure moet derhalwe uiters versigtig wees tydens informele gesprekke met huiseienaars en aandring op die stiptelike nakoming van die voorgeskrewe proses, soos in die reëls, die MVI of die MVA omskryf. Dit is raadsaam om enige kommentaar of opinie te vermy en dit liefs uit te spreek in die gepaste forum – die formele vergadering van die trustees of direkteure waar die saak in die agenda opgeneem is ter nakoming van die assosiasie se voorgeskrewe formele vereistes.

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.

HOW TO CHANGE YOUR MARITAL STATUS TO ANOTHER FORM OF MARRIAGE CONTRACT

Section 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 antenuptial contract regulating the matrimonial property of the parties involved, without any confusion.

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.

 

USUFRUCT, USUS AND HABITATIO: WHAT IS THE DIFFERENCE?

Usufruct, 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.

ME, MY NEIGHBOUR AND THAT TREE

The house was just perfect – the right neighbourhood, well-established garden, beautiful trees waving graciously in the summer breeze with just the right amount of shade next to your swimming pool and veranda. And as the trees are those of your neighbour, no problem with pruning or the leaves, said the estate agent. You fell in love and your family loves the new home.

Autumn arrives. The leaves have changed colour and you have actually taken the competition-winning photographs right from your doorstep! When the leaves started falling, the swimming pool pump required repairs twice due to blockage and your Saturday golf has been replaced with hauling loads of leaves to the garden refuse. During the first thunder storm of the new season the wind ripped a branch off and whipped the branch through your electric fence, taking all off the wall.

The acorns made dents into your brand new pride and joy, whilst the ripe fruit falling down on your lawn has started to rot whilst you were at the beach house. You can’t wait for them to leave this weekend to jump over the fence with your chainsaw … Problems with trees from adjacent gardens are as old as townships itself and since man moved into closer proximity to each other.

To merely jump over the fence and prune, or worse, cut down the tree to your satisfaction will not only constitute trespassing but also malicious damage to property. Many disgruntled neighbour has approached the courts demanding relief. The courts have carefully considered the basis on which you can approach the court, now generally considered as “nuisance”.

You will have to prove to the court that the inconvenience caused to you by your neighbour’s tree is more than you just being fanciful, elegant or having dainty modes and habits of living.  The inconvenience caused must materially interfere with your ordinary physical comfort and your human existence.

The standard that the court will consider regarding this infringing of your health, well-being or comfort in occupation of your property, will be that of a normal person of sound and liberal tastes and habits. The test of reasonableness shall be applied taking into account general norms acceptable to a particular society. Actual damage to your property is not a requirement.

The court will, however, also consider the nuisance, even if the tree(s) is actually causing damage, balancing this with your responsibility to tolerate the natural consequence of the ordinary use of the land. In other words, the court will consider the dispute and the decision will involve balancing the competing interests of you and your neighbour.

The judgement of Judge De Vos in Vogel vs Crewe and another 2003 (4) SA 50 (T) raised a further very important aspect – the environment.

In a world where trees and nature are considered all the more important for our well-being and that of the earth, all the more careful consideration should be taken before a demand for the cutting down of a tree is granted.

Judge De Vos noted that trees form an essential part of our human environment, not only giving us aesthetic pleasure but also being functional in providing shade, food and oxygen. And, like many other living things, trees require, in return for the pleasure provided, a certain amount of effort and tolerance.

With our increasing awareness of the importance of protecting our environment, we need to become more tolerant of the inevitable problems caused by the shrinking size of properties and the greater proximity of neighbours, and consequently, the neighbours’ trees.

Before you sell your property and move to another neighbourhood altogether, consider a friendly discussion with your neighbour and his pruning company of choice, from YOUR side of the fence.

Explain to your neighbour which branches of which trees are problematic or show him the cause for your concern. And be willing to reach an agreement somewhere in the middle, taking the type of tree, its form of growth and the balance of the tree into consideration. It will not suffice to demand the removal of a large branch unbalancing the tree which will then fall over during the next storm taking down your wall!

If all your efforts, including friendly letters and e-mailed correspondence fall on deaf ears, you are allowed to prune all branches as from the point that it protrude over the wall into your property. You are not allowed to lean over the wall to cut those branches at the neighbour’s side of the wall. You will also be responsible for removing the branches from your property after you have pruned the tree in this manner.

So take your cup of tea, and have a good, impartial look at that “offending” tree. See the insects, the birds fluttering around and the odd lizard. Tranquil, is it not? Must that tree go, or can you tolerate its existence, maybe with a little pruning? Cutting it down, you might just open a view into your neighbour’s garden (or house), which is even less pleasing!

Consider the environment. Tolerate that tree. In the summer you will relish the shade.

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.

Should I draft a will?

Taking the time to draft a will can leave you with the peace of mind that your assets will be distributed according to your wishes as far as possible.

Your will should reflect exactly how you want your assets to be dealt with after your death and should not be contra bonos mores (against good morals). It should also not amount to “ruling from the grave”.

There are a number of legal requirements that have to be complied with for a will to be valid.  If it does not comply with all of these requirements it could be found to be invalid. Your estate would then also be dealt with in terms of the Intestate Succession Act of 1987. It is therefore of the utmost importance that you obtain the assistance of someone with the necessary specialised skill and knowledge to assist you with the drafting of your will.

A will should also regularly be revised and updated to adapt to your changing circumstances, for example after getting married, and when there is a child on the way. Section 2B of the Wills Act No. 7 of 1953 (as amended by the Law of Succession Act No. 43 of 1992deals specifically with a change in marital status by way of divorce, and reads as follows:

If any person dies within three months after his marriage was dissolved by a divorce or annulment by a competent court and that person executed a will before the date of such dissolution, that will shall be implemented in the same manner as it would have been implemented if his previous spouse had died before the date of the dissolution concerned, unless it appears from the will that the testator intended to benefit his previous spouse notwithstanding the dissolution of his marriage.”

This can be explained by way of the following example: A and B get divorced and B dies within three months of the date of the divorce. B’s will was executed before they got divorced. Unless B’s will specifically indicated that A must benefit from B’s estate despite the divorce, B’s estate will then be distributed as if A died before they got divorced. A will therefore not inherit from B’s estate in this scenario. However, should B die more than 3 months after the divorce and B’s will, which benefits A, was not changed, then it will be seen as if B intended A to inherit, despite the divorce.

A person who was previously married and who remarries, should ensure that the necessary changes are made to his/her will. If not, this could have profound consequences for the “new” spouse, especially if the will still benefits the spouse from the previous marriage.

When there are minor children in the picture, it is advisable to make adequate provision for their living costs and education in your will. This can be done by creating a testamentary trust of which the minor children can be beneficiaries.

Thinking and talking about one’s passing is not a pleasant subject. Having a valid, clear and unambiguous will can prevent unpleasant family feuds caused by them having to make decisions about the distribution of your estate. It is certainly worth the time and effort to have a valid written will in place.

References:

Drafting of Wills 2013 – LEAD

Intestate Succession Act 81/1987

Wills Act 7/1953

Compiled by Riëtte Nel

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.