Requirements to restore a deregistered company

There are various circumstances in which a company (or close corporation) can become deregistered at the CIPC.

1. The company itself can apply for deregistration at the CIPC, for any number of reasons.

2. If a company has not submitted and paid its annual returns for more than two successive years, the CIPC will inform such a company of the fact and the intention of the CIPC to deregister said company. If such a company does not take any steps to remedy the situation, the CIPC will proceed to finally deregister it.

3. If the CIPC believes that the company has been inactive for seven or more years.

How can a company be restored?

It is possible to restore such a company or close corporation which has been finally deregistered, but all outstanding information and annual returns (including the fees) will have to be lodged with the CIPC. An additional R200 prescribed re-instatement fee must also be paid.

Recently, the CIPC has set additional requirements to do this, which also impacts on the time, administration and cost to restore such a company. These requirements took effect from 1 November 2012.

The steps and requirements for the re-instatement process are:

  1. The proper application CoR40.5 form Application for Re-instatement of Deregistered Company must be completed and submitted, originally signed by the duly authorised person.
  1. A certified copy of the identity document of the applicant (director / member) must be submitted.
  1. A certified copy of the identity document of the person filing the application must be submitted.
  1. A Deed Search, reflecting the ownership of any immovable property (or not) by the company, must be obtained and submitted together with the application.
  1. If the company does in fact own any immovable property, a letter from National Treasury must be submitted, indicating that the department has no objection to the re-instatement of the company.
  1. Also, if the company does in fact own any immovable property, a letter from the Department of Public Works must be submitted, indicating that the department has no objection to the re-instatement of the company.
  1. An advertisement must be placed in a local newspaper where the business of the company is conducted, giving 21 days’ notice of the proposed application for re-instatement.
  1. If the deregistration was due to non-compliance with regards to annual returns, an affidavit indicating the reasons for the non-filing of annual returns must be submitted.
  1. If the company itself applied for deregistration, an affidavit indicating the reasons for the original request for deregistration must be submitted.
  1. Sufficient documentary proof indicating that the company was in business or that it had any assets or liabilities at the time of deregistration must be submitted.
  1. All outstanding annual returns must be submitted and paid, along with any penalties.

Upon compliance of all of the above requirements, the CIPC will issue a notice to the company that it is restored.

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 must you consult the Family Advocate?

You may consult the Family Advocate if you have a dispute relating to either the best interests of a child and/or parental responsibilities and rights. Other circumstances under which the family advocate may be consulted include:

1. When parties require assistance in drafting parental responsibilities and rights agreements and to register such with the Family Advocate or to amend, and/or terminate the said agreements registered with him or her.

  1. When parties require assistance in drafting parenting plans and to amend or terminate such parenting plans registered with him or her.
  1. An application to define contact.
  1. A custody, access or guardianship dispute arising from the dissolution of a customary or religious marriage.
  1. Domestic Violence and Maintenance cases referred to the Family Advocate in terms of the Judicial Matters Second Amendment Act (Act 55 of 2003).
  1. Fathers of children born out of wedlock may request mediation of their parental rights and responsibilities (in terms of the Children’s Act).
  1. Parental child abduction to and from South Africa.

If there is a dispute regarding the contact, guardianship or care (parental responsibilities and rights) of a minor child, the Office of the Family Advocate would be requested to investigate the welfare and best interest of the minor child involved. Often, they provide a report which is handed to the relevant Court for consideration. The Office of the Family Advocate is not employed by the parties involved. They work for the State ensuring that they are objective in their investigation and only have the child’s best interests at heart.

Steps involved

  1. Contact your nearest Family Advocate to request an enquiry or, mediation of your legal dispute.
  1. Upon receipt of the request, the Family Advocate institutes an inquiry during which he or she interviews you and the parties involved to determine your personal circumstances and the background of the matter. Where mediation is requested the Family Advocate will be the mediator
  1. The Family Counsellor then interviews the children separately, so as to enable such children to exercise their statutory right to be heard and to enable the Family Advocate to convey their views to the Court.
  1. The Family Advocate will communicate whatever decision taken, which significantly affects the welfare of the child, to such child.
  1. Upon completion of the enquiry or mediation process the Family Advocate will file a report for the Court and furnish copies to the parties or their lawyers.

In a typical custody dispute, a Family Advocate and social worker would be appointed to a case and investigate it. The social worker and the Family Advocate would consult with the parents (or parties involved in the dispute), visit their homes if necessary and obtain information from relevant parties etc. The Family Advocate and social worker would also speak to the child and may want to observe the child’s interaction with the parents. If there are other professionals, for example, a social worker or a psychologist who assessed the situation and provided a report, the Office of the Family Advocate would consider those documents as well and even consult with those experts before handing in their report.

References:

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)

An Introduction: MOI & Shareholders Agreement

1. Memorandum of Incorporation

The Memorandum of Incorporation (“MOI”) is the founding document of company which, in conjunction with the Companies Act, 2008 (Act No. 71 of 2008) (“Act”), regulates the governance and affairs of a company. It sets out rights, duties and responsibilities of shareholders, directors and others within and in relation to a company, and other matters dealt with in section 15 of the Act.

Section 15 of the Act, amongst others, provides for deviation from the standard provisions set out in the Act and permits the MOI to –

  • deal with a matter that the Act does not address;
  • alter the effect of any alterable provision of the Act (i.e. a provision that may be negated, restricted, limited, qualified, extended or otherwise altered in substance or effect);
  • impose on the company a higher standard, greater restriction, longer period of time or any similarly more onerous requirement, than would otherwise apply to the company in terms of an unalterable provision of the Act (i.e. a provision that may not be negated, restricted, limited, qualified, extended or otherwise altered in substance or effect).

It is important to note that the MOI is a public document, which is filed with the Companies and Intellectual Property Commission (“CIPC”). Any person can, subject to payment of the prescribed fee, obtain a copy of a company’s MOI from CIPC. Confidential company matters are therefore best dealt with in the Shareholders Agreement (a private document) and not in the MOI.

  1. Shareholders Agreement

In terms of section 15(7) of the Act, the shareholders of a company may enter into any agreement, with one another concerning any matter relating to the company (namely a Shareholders Agreement), provided that such agreement must be consistent with the Act and the company’s MOI.

Any provision of a Shareholders Agreement that is inconsistent with the Act or the company’s MOI is void to the extent of the inconsistency, it is therefore important to carefully align a Shareholders Agreement to ensure its validity and enforceability.

Unlike the MOI, a Shareholders Agreement is not filed with CIPC and is not available to the general public. It is a private document which, among others, regulates the confidential affairs of the company, such as funding, voting, deemed offers, forced sales, come along, tag along, deadlock and other significant issues.

  1. Summary

In order to ensure good governance, transparency and accountability a company should definitely have a properly drafted MOI and Shareholders Agreement. A company’s MOI and Shareholders Agreement must further be aligned with one another and the Act, falling which it could have negative and / or unintended consequences.

It is essential to consult a qualified commercial attorney to assist with the preparation a customized MOI and Shareholders Agreement, to ensure statutory compliance and to limit potential disputes between stakeholders.

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 register a new company

The basic steps to register a company under the Companies Act of 2008 at the Companies and Intellectual Property Commission (CIPC) involves certain forms and supporting documentation that must be lodged and the accompanied fees paid.

The steps

The first step in registering a new company is optional. A CoR9.1 form must be completed and lodged with the CIPC in order to reserve a name for the company to be registered. However, the Act does make provision for a company to be registered without a name. The company registration number will then be the name of the company until such time as the company properly registers a name. A certified copy of the identity document of the applicant must be submitted as supporting documentation with this form and a filing fee is payable.

The next step is to complete and lodge the CoR14.1 Notice of Incorporation form together with the CoR15.1 Memorandum of Incorporation.

The Notice of Incorporation specifically contains information regarding the type of company to be registered, the incorporation date, financial year end, registered address, number of directors and the company name if applicable. A certified copy of the identity document of the applicant must be submitted as supporting documentation and a filing fee is payable. A CoR14.1A form contains specific information about the directors of the company who will be appointed at registration, and this form must be lodged together with the Cor14.1. Certified copies of the identity documents of all directors to be appointed must be submitted as supporting documentation. An optional form CoR14.1D may be lodged together with the CoR14.1, which indicates any company appointments to be registered with the CIPC, such as a company secretary or auditor.

The Memorandum of Incorporation is probably the most important document when registering a company, since the provisions contained herein will govern the company. It can be short and simple, or long and extremely technical, depending on what type of company is being registered. In this regard, it is best to seek professional advice. The supporting documentation and filing fees applicable will depend on what type of Memorandum of Incorporation is being registered.

If an auditor or company secretary is appointed at registration as contained in the CoR14.1D, a CoR44 form must also be completed and submitted. No filing fee is payable for this form. An original acceptance letter and certified copy of the identity document of the auditor or company secretary must be submitted as supporting documentation.

The CoR21.1 Notice of Registered Address must be completed with the particulars of the registered address of the company. Again a certified copy of the identity document of the applicant must be submitted as supporting documentation, but no filing fee is payable.

Once all the necessary forms and supporting documentation has been submitted and applicable fees paid, the CIPC will issue a Registration Certificate form CoR14.3 if it is satisfied that all provisions in the Act has been satisfied.

Any changes to the information placed on record at the CIPC at the original registration of the company, must be registered without delay and on the proper forms and possible payment of applicable filing fees.

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)

Important steps for the transfer of property

The transfer process can take up to three months, sometimes longer. There are different steps involved in the transfer of a property, these include:

1. Instruction.

A conveyancer receives the instruction to transfer the property.

  1. Communication.

The conveyancer communicates with the various role-players involved in the transfer process, such as the seller, purchaser, transfer and bond attorneys, municipality, bank, South African Revenue Service (SARS).

  1. Collection.

Certain information and documents are required, such as the agreement of sale, deeds office search, existing deed, bond cancellation figures from the bank and so on. The conveyancer should continuously report to the various role-players about the progress being made.

  1. Drafting and signing.

As soon as all the information and documents have been collected, the conveyancer will draft the transfer documents and request the seller and purchaser to sign them. These transfer documents will include a power of attorney and various affidavits.

  1. Finances.

Financial arrangements include requesting an advance payment for the conveyancer’s interim account for certain expenses, requesting the bank guarantee, collecting the purchase price or deposit and so on.

  1. Transfer duty.

Obtaining a transfer duty receipt from SARS, confirming that the tax relating to the transfer of the property has been paid by the purchaser.

  1. Clearance certificate.

Obtaining a clearance certificate from the municipality, confirming that all amounts in respect of property have been paid for the last two years.

  1. Prep.

The conveyancer prepares for lodgement (submission) of the deed of transfer and other documents necessary for registration at the deeds office.

  1. Registration.

Once the deed of transfer and other documents have been lodged it, takes the deeds office about 7 – 10 working days to examine these documents. If the deeds office is satisfied that the requirement for the transfer of property has been met, the deed of property is registered. The conveyancer will notify the various role-players of the registration.

  1. Accounts.

Once registered, the conveyancer makes the necessary calculations and payments relating to the sale, for example, the estate agent’s commission, purchase price and so on. The conveyancer’s final account is also drawn up and sent to the purchaser and the seller for payment.

Having an experienced and expert conveyancer is extremely important to ensure that the transfer of property takes place quickly and 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)

Financial assistance by companies to issue shares

Section 38 of the Companies Act, 61 of 1973 (now repealed) contained a prohibition against companies issuing shares to prospective shareholders on loan account. This was identified as one of the hurdles in the way of BEE empowerment deals specifically (which quite often involves BEE participants requiring funding to be able to subscribe for shares in a company). Consequently, this was addressed in the Companies Act, 71 of 2008, through the introduction of section 44 which now specifically provides for new share issues to be undertaken on loan account, subject thereto that this is not prohibited by the company’s memorandum of incorporation.

The board of directors of a company may now authorise financial assistance to be provided by the company by way of a loan, guarantee or the provision of security to any person for the purpose of subscribing for shares issued in that company. However, and despite any provision of a company’s memorandum of incorporation, the company’s directors may not authorise any financial assistance unless the financial assistance is for either an employee share scheme, or has been authorised through a special resolution by the shareholders of the company. (A special resolution involves a resolution adopted with the support of at least 75% of the voting rights exercised on the resolution, or a different percentage which may potentially be allowed for in the company’s memorandum of incorporation.) In addition, the company’s directors must be satisfied that the terms of the loan (or other form of financial assistance) is fair and reasonable to the company, and that the company would, after providing the financial assistance, still be both solvent and liquid. If the company’s memorandum of incorporation specifically imposes certain further conditions on the company granting financial assistance for the issuing of its shares, these requirements too need to be adhered to.

Any agreement to provide financial assistance which would be contrary to the requirements set out above in terms of either section 44 of the Companies Act, or the memorandum of incorporation of a company, would be void. Directors in breach of this may be held personally liable for damages caused.

The new regime in the ‘new’ Companies Act is enabling for business, but directors should caution against applying this without due consideration to the above requirements. Of specific relevance would be if for example the recoverability of a loan granted to enable the borrower to subscribe for shares is doubtful. If this is the case, the duty of care of the directors towards the company may be called into question by other shareholders prejudiced as a result, potentially leading to delictual claims against the directors in personal capacity for not displaying the statutory required duty of care towards the company.

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)

Interest Free or Low Interest Loans to Trusts – Draft Taxation Laws Amendment Bill – 8 July 2016 

The Draft Taxations Laws Amendment Bill, 2016 has been made available for comments.

As far as trusts are concerned a new section 7C is proposed.

The provisions of said section can be summarised as follows:

  • The provisions apply to a loan, advance or credit made by a natural person,or
  • by any company in relation to which that person is a connected person (i.e. any person who individually or jointly with any connected person in relation to himself holds directly or indirectly at least 20% of the company’s equity share capital or voting rights),
  • to a trust,
  • in relation to which that person or company (or any person that’s a connected person (i.e. a beneficiary of a trust, any relative of such beneficiary, any other beneficiary of such a trust)) in relation to that person or company is a connected personand
  • no interest is incurred by the trust in respect of the loan, advance or credit,or
  • interest is incurred at a lower rate than the official rate of interest (contemplated in paragraph 1 of the Seventh Schedule to the Income Tax Act – currently 8%).

Result where abovementioned provisions apply:

  • Imputed interest:
    An amount equal to the difference between the amount incurred by the trust in respect of the year of assessment and the amount that would have been incurred by the trust at the official rate of interest mentioned above will be included in the income of the person making the loan;
  • Interest exemption:
    The imputed interest will not qualify for the interest exemption set out in section 10(1)(i) of the Income Tax Act;
  • Recoverability of the attributable income tax:
    An amount equal to the difference between the amount of normal tax that would have been payable by the person in respect of the year of assessment and the amount payable by that person after inclusion of an amount in terms of this section may be recovered by that person from the trust;
  • Donation:
    Should that person not recover the additional tax paid from the trust within a period of three years, that amount will be treated as a donation by that person to the trust after the period of three years and be taxed as such;
  • Donations tax threshold not applicable:
    Section 56(2) of the Act exempting donations up to an amount of R 100 000 will no longer apply to a loan, advance or credit as contemplated in this section that is disposed of under a donation;
  • Commencement date:
    The section comes into operation on the 1st of March 2017 and applies in respect of years of assessment commencing after the 1st of March 2017.

Summary

  • The introduction of this proposal is a direct result of the intention by National Treasury to curb the use of trusts for the saving of estate duty;
  • The net result will be that any interest free loan or low interest loan to a trust by any connected person in relation to that trust will result in imputed interest being added to the income of the person making the loan. The imputed interest will be the difference between the interest actually charged on the loan and the official interest rate (currently 8%);
  • The typical scenarios relevant to trusts which will be effected by this proposed legislative change (when promulgated) are:
  1. Where a person sells an asset to a trust on an interest free loan or charge interest on the loan at a rate lower than the official rate prescribed by SARS (currently 8%);and/or 
  2. Where the trustees of a trust make a distribution to trust beneficiaries and credit the distribution on an interest free loan account or charge interest on the loan at a rate lower than the official rate prescribed by SARS. Since beneficiaries of trusts qualify as connected persons in relation to the trust, it seems as if a loan to the trust by a beneficiary (as a result of a distribution of income or capital from the trust to the beneficiary which distribution was credited on loan account and not paid out) can invoke the provisions of this section.
  • Any additional tax payable by a person as a result of the application of this section may be recovered by that person from the trust. Should that person decide not to recover the additional tax from the trust for a period of three years the amount of the tax not recovered will be seen as a donation by that person to the trust and taxed as such.
  • The practice of writing off a R 100 000 per tax year on the loan free of donations tax will not be available for as long as the loan is an interest free or low interest loan as envisaged.
  • It is important that clients contact us or their advisors regarding any trusts where loans, as envisaged above, exist. Should such a loan exist it would be advisable to charge interest at, at least, the official interest rate as from the 1st of March 2017. It would be better to actually charge the interest than to allow the imputed interest to be applied since interest actually paid will qualify for the interest exemption.
  • If the trust earns taxable income these provisions should not create too many problems since the trust should then be able to deduct the interest paid for tax
  • Where the trust does not earn any taxable income, the problem will be that the interest will be taxable in the hands of the person making the loan, but no deduction will be allowed in the trust.
  • It seems from the wording that, an interest free or low interest loan to a company, even if a trust owns all the shares, will not fall foul of these provisions. As the legislation stands at the moment, this seems to create an opportunity to circumvent the provisions of section 7C.

General

  • While these new provisions will affect estate planning via trusts it will most definitely not mean the end of the trust as we know it. Careful planning by knowledgeable advisors should still make it possible to utilise the trust as a more than useful estate planning vehicle;
  • We also wish to emphasise that this is draft legislation open for Further changes might occur prior to the final legislation being promulgated;
  • We will inform you of any further developments.

Geldigheid van ʼn huweliksvoorwaardekontrak

A2_BDie opstel en ondertekening van ʼn huweliksvoorwaardekontrak moet versigtig benader word. Benewens die feit dat die inhoud feitelik korrek moet wees, moet al die nodige bepalings daarin vervat word om die kontrak geldig te maak. Indien daar versuim om ʼn huweliksvoorwaardekontrak op te stel, mag dit lei daartoe dat ʼn huwelik as binne gemeenskap van goedere beskou word, selfs al was dit nie die partye se bedoeling toe die kontrak gesluit was nie.

Prokureurs en Notarisse word vertrou met die opstelling van ʼn huweliksvoorwaardeskontrak. Dit is ‘n kontrak wat deur die betrokke partye onderteken word om die huweliksbedeling te reguleer. As ‘n paartjie nie ‘n huweliksvoorwaardeskontrak teken nie, sal die huweliksbedeling binne gemeenskap van goedere wees. ʼn Huweliksvoorwaardeskontrak wys daarop dat die huweliksbedeling buite gemeenskap van goedere is. Die partye moet dus spesifiek stipuleer of hulle die aanwasbedeling op hul huwelik van toepassing wil hê al dan nie.

Die saak van B v B, soos in die Appèlhof voorgekom, bespreek die belang van die nodige bepalings in ʼn huweliksvoorwaardeskontrak wat tot die sluit van ‘n geldige kontrak lei. In hierdie geval was daar geen bepalings gestipuleer ten opsigte van enige van die bates wat in die huweliksvoorwaardeskontrak uiteengesit is nie. Die bates was ook behoorlik geïdentifiseer nie. In B v B het die hof gestel dat indien die bepalings van ‘n kontrak so vaag en onsamehangend is, en dit onmoontlik is om ‘n sinvolle konstruksie daarvan te maak, moet die kontrak as nietig beskou word as gevolg van vaagheid.

Ingevolge artikel 6(1) van die Wet op Huweliksgoedere kan ‘n party tot ‘n voorgenome huwelik, wat nie die waarde in die kontrak uiteensit vir die doel om ʼn bewys te lewer van die bates van sy of haar boedel teen die tyd van die aanvang van die huwelik nie, dit binne ses maande van die sluiting van die huwelik in ‘n verklaring bevestig met behulp van ’n notaris. Ingevolge artikel 6 (4) van die Wet op Huweliksgoedere word die netto waarde van die boedel van ‘n gade as nul geag ten tye van die huwelik, indien die betrokke party nie die bewys betyds lewer nie. In effek is so ‘n kontrak geldig, maar dit sal beteken dat ʼn huwelik as binne gemeenskap van goederebeskou, aangesien daar niks van die oploping uitgesluit is nie.

As ‘n kontrak egter teenstrydig en onsamehangend is in ander opsigte, kan dit nie as ‘n geldige kontrak nie beskou word nie, aangesien daar geen sekerheid is oor die betekenis van die kontrak en wat die partye beoog om te bereik nie. Dit beteken dat die kontrak nie die Hof in staat stel om uitvoering te gee aan die bedoeling van die partye ten die tye van die sluiting van die kontrak nie.

Die gevolg van so ‘n kontrak is dat die huweliksvoorwaardeskontrak nietig verklaar sal word as gevolg van onsamehangendheid en dat die huweliksbedeling ingevolge die Wet op Huweliksgoedere in gemeenskap van goedere sal wees.

Partye word dus aangemoedig om hul huwelikskontrakte deeglik te lees en seker te maak dat hulle die bepalings daarvan verstaan en dat die kontrak hul bedoelings uitbeeld, sonder enige verdere verduidelikings of bewyse.

B v B (952/12) [2014] ZASCA 14 (24 Maart 2014)

Wet op Huweliksgoedere 88 van 1984

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)

Validity of Antenuptial Contracts

A2_BOne must be careful when drafting and signing an Antenuptial Contract. Aside from ensuring that the contents is all correct, one must also ensure that all the necessary provisions are contained therein to make the contract valid. The consequences of neglecting to do so may result in a marriage in community of property even though the parties had no intention of this at the time of their marriage.

Attorneys are often trusted with the task of drafting an Antenuptial Contract. This is a contract, which one signs to regulate the property regime of a marriage. If a couple does not sign, an Antenuptial Contract then the marital property regime will be that of in community of property. The presence of an Antenuptial Contract means that the marital property regime is that of out of community of property and the parties must specifically stipulate whether they would like the accrual system to apply to their marriage or not.

The importance of ensuring that all the necessary provisions are contained in the Antenuptial Contract to result in a valid contract was discussed in the 2014 Supreme Court of Appeal Case of B v B[1]. In this case, no values were stated in respect of any of the assets listed in the Antenuptial Contract and they were also not properly identified. In B v B the court stated that if the terms of a contract are so vague and incoherent as to be incapable of a sensible construction then the contract must be regarded as void for vagueness.[2]

According to Section 6(1) of the Matrimonial Property Act[3] ,a party to an intended marriage which does not, for the purpose of proof of the value of his or her estate at the time of the commencement of the marriage, declare the value in the contract, then he or she may do so within six months of the marriage in a statement attested to by a notary. If this is not done, according to Section 6(4) of the Marital Property Act, the net value of the estate of a spouse is then deemed to be nil at the time of the marriage. In effect, such a contract is valid but it will effectively render the marriage in community of property since nothing was excluded from the accrual.

However, if a contract is contradictory and incoherent in other respects then it cannot be seen as a valid contract since there is no certainty as to the meaning of the contract and what the parties seek to achieve. This means that the contract would not embody terms that would enable to court to give effect to the intention of the parties at the time the contract was concluded.

The result of such a contract is that the Antenuptial Contract would be void for vagueness and that the marital property regime would be the default position according to the Marital Property Act, which is in community of property.

Therefore, parties are encouraged to read their contracts thoroughly and ensure that they understand the terms thereof and that the contract embodies their intentions without any further explanations or evidence.

[1] (952/12) [2014] ZASCA 14 (24 March 2014).

[2] B v B (952/12) [2014] ZASCA 14 (24 March 2014) par 7.

[3] 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)

Onderhoud – Nie net vir minderjariges nie

A1_BWanneer die woord “onderhoud” genoem word, dink baie mense aan vroue wat onderhoud vir minderjarige kinders eis of alternatiewelik, vroue wat vir onderhoud van hul gewese mans eis. In hierdie artikel sal ons egter ‘n ouer se onderhoudseis teen hul volwasse kinders bespreek.

Mike Larry het ‘n dagvaarding van die Onderhoudshof ontvang om drie weke later vir ‘n onderhoudsaak te verskyn, maar Mike het geen vrou of kinders nie en het verward gewonder of die Hof dalk ‘n fout gemaak het. Mike het die Onderhoudshof bygewoon om uit te vind of daar dalk ‘n fout in die dokumentasie was. Wat hy uitgevind het, het sy moed laat sak en kort daarna sy bankrekening ook.

Mike se vader, Jermaine, het ‘n aansoek voor die Onderhoudshof gebring vir onderhoud vanaf Mike, aangesien hy geen werk gehad het nie en dus geen inkomste nie. Mike het sy prokureur gevra of dit moontlik is, en die antwoord was bevestigend.

Volgens die Wet op Onderhoud 99 van 1998 het ouers en kinders ‘n wedersydse onderhoudsplig. ’n Kind het ‘n plig om sy ouers en grootouers te onderhou, maar dit is altyd onderworpe aan die reël dat ondersteuning eerste van die naaste familielid geëis moet word. Die basis van ‘n kind se plig om sy ouers te onderhou is gegrond in die gevoel van pligtigheid of filiale jammerte (met betrekking tot of vanaf ‘n seun of dogter). In sekere omstandighede kan selfs ‘n minderjarige kind ‘n plig hê om sy ouers te onderhou. ‘n Ouer wat onderhoud van ‘n kind eis, moet sy of haar behoefte bewys, asook die kind se vermoëns om hom/haar te ondersteun. ‘n Strenger maatstaf van nood is op ouers as kinders toegepas; hulpbehoewendheid van ‘n ouer is hiervoor ‘n vereiste.

Die owerhede het nie heeltemal duidelikheid oor bogenoemde nie. In Oosthuizen v Stanley het die Hof van die “kwaliteit en toestand van die persone wat ondersteun moet word” gepraat. In dieselfde saak is daarop gedui dat waar ‘n ouer ondersteun moet word, dit nie net die ouer se eie behoeftes is nie, maar ook dié van die ouer se afhanklikes wat in ag geneem moet word. In van Vuuren v Sam Rabie het die regter na dieselfde maatstaf verwys, maar het beklemtoon dat die ondersteuning van ouers tot die basiese behoeftes beperk moet word, naamlik kos, klere, skuiling, medisyne en sorg in tye van siekte. Ter ondersteuning hiervan het die Regter verwys na Surdus v Surdus en gesê dat, in die beoordeling van die kwaliteit en toestand van die persoon wat ondersteun moet word se lewe, dit hoofsaaklik sy huidige en nie sy vorige situasie is nie wat oorweeg moet word, maar dat die Regter sy eie diskresie moet uitoefen in die bepaling hiervan. Byvoorbeeld, ‘n ouer wat voorheen ryk was en nou deur moeilike tye gegaan het, moenie verplig wees om arm-manskos te eet nie. Daar is aangevoer dat die maatstaf van behoefte nie so streng vertolk moet word dat dit die hele konsep van ‘n wedersydse verpligting vernietig nie.

Die volgende kan ook oorweeg word wanneer ‘n ouer aansoek doen om onderhoud vanaf sy/haar kind:

1.  Broers en susters;

2.  Ekstra inkomste; en

3.  Lewenskwaliteit.

In terme van die gemenereg het ‘n buite-egtelike kind ‘n plig om sy/haar ma te onderhou, maar of die pa ondersteun moet word, moet nog beslis word. Daar kan egter aangevoer word dat ‘n buite-egtelike kind aanspreeklik kan wees om sy/haar pa te onderhou in terme van Artikel 16 van die Kinderwet 38 van 2005.

Ten slotte, as jy voel dat jy onregverdig vir ‘n onderhoudseis geteiken word, raadpleeg beslis jou prokureurs sodat hulle jou kan inlig oor jou regte en verantwoordelikhede.

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)