Author Archives: Delport van den Berg Inc.

Wedding bells?

Every girl dreams of a fairy tale wedding.  The perfect husband, dress, venue and let us not forget, the ever popular “happily ever after.”  Unfortunately, the rising divorce rate provides a clear indication that married couples are far more likely to opt for divorce before reaching the “… until death do us part” bit of their marriage vows. Every year an inordinate amount of money is spent towards creating the perfect ceremony and reception. Ironically, almost no consideration is given to the consequences of the marriage.

Marriage is not a social event.  It is a legal action taken by individuals that affects, inter alia: (1) their personal status, (2) their contractual capacity, (3) their estates, (4) creates legal obligations between the spouses and (5) governs their external legal relationship with third parties.

The default marital dispensation is Married In Community of Property.  The estates (existing and future) of the spouses are joined into one estate.  Each spouse acquires an undivided half share in the now joint assets and the spouses are jointly responsible for all debts (existing and future), even if the debts are incurred by only one of the spouses.  The contractual capacity of the spouses are limited and insolvency or death of one of the spouses affects both the legal status and capacity of the other spouse as well as the joint estate.

Should the parties wish to change the default position, they may enter into an antenuptial contract and provide for a marriage dispensation being either: (1) Out of Community of Property without the Accrual System or (2) Out of Community of Property with inclusion of the Accrual System.

Out of Community of Property without the Accrual System is the polar opposite of a marriage in community of property. The estates (existing and future) of the spouses remain separate and the contractual capacity of the spouses remain unaffected.  Insolvency of one spouse does not affect the status, capacity or estate of the other spouse.  However, this dispensation creates the potential for severe disparity to develop in the estates of the spouses that may give rise to social injustice and financial hardship.  Also, the surviving spouse does not automatically share in the estate of a deceased spouse, unless specifically provided for in a valid will.

The inclusion of the Accrual System to the Out of Community of Property dispensation is an attempt to address the social injustice and hardship by combining elements of both dispensations.  The same considerations as set out for a marriage Out of Community of Property without the Accrual System will apply, right up to the dissolution of the marriage by either death or divorce.  On dissolution of the marriage, the accrual system activates and provides that the estate of the spouse with the least accrual is entitled to half of the value of the difference in the accrual of the respective estates.  In theory, this should create parity and place both estates on an equal financial footing.

A word of caution: For the antenuptial contract to apply, the contract must be: (1) executed in writing, (2) before a Notary Public, (3) before date of marriage and (4) registered with the Registrar of Deeds within three months of the date of execution.

For any of your antenuptial contract needs do not hesitate to contact Delport van den Berg Inc. on (012) 361 5001 as we have no less than 3 notaries to assist you.

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)

Minimum wage increase

The Department of Labour released a media statement notifying trade unions about the wage increase. Once it becomes enacted as a law, no employee may be paid below the minimum wage, and trade unions are there to ensure that this law is upheld by the employer.

South Africa’s labour market is largely characterised by high levels of unemployment, inequality and poverty. As a means of reducing these and building towards achieving the broader policy objectives of the country, social partners have identified minimum wage as benefiting all workers in this regard.

Schedule 2 of the proposed National Minimum Wage Act sets out the minimum wage for workers with learnership agreement. The national minimum wages for other workers are as follows:

  • R20 per hour to be implemented and enforced from 1 May 2018
  • R18 per hour for farm and forestry workers
  • R15 per hour for domestic workers

R11 per hour for workers on the Expanded Public Works Programme (EPWP)

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 prescription of a debt start?

Debt does not last forever, after a period of time it prescribes and becomes invalid. Prescribed debt can be explained as old debt that has not been acknowledged over a period of three years. This means that a debt prescribes if:

  • You have not acknowledged the debt in the past three consecutive years, either in writing or verbally.
  • You have not made a payment promised to make a payment to the outstanding debt amount.
  • You have not been summoned to make a payment by a creditor for the debt within the past three consecutive years.

Trinity Asset Management (Pty) Limited v Grindstone Investments 132 (Pty) Limited

On 5 September 2017, the Constitutional Court handed down a judgment in an appeal against the judgment and order of the Supreme Court of Appeal (SCA) against Trinity Asset Management (Pty) Ltd (Trinity). The SCA ruled that Trinity’s claim for repayment of a debt of some R4.55 million against Grindstone Investments 132 (Pty) Ltd (Grindstone) was unenforceable because it had prescribed.

The parties entered into a written loan agreement, effective from 1 September 2007, in terms of which Grindstone borrowed a capital amount of R3 050 000 (loan capital) from Trinity. Clause 2.3 of the loan agreement provided that the loan capital was due and repayable to the applicant within 30 days from the date of delivery of Trinity’s written demand.

The majority judgment found that, on a holistic reading of the loan agreement, the parties did not intend to delay when the debt would become due or when prescription would begin to run. The parties’ language in the contract did not signify an intention to delay. The parties simply meant to allow Grindstone 30 days to repay the debt once Trinity had issued demand, not to postpone the due date of the debt to an indeterminate future date. The debt thus became due, and prescription began to run, immediately on conclusion of the contract.

Grindstone therefore raised a valid prescription defence, and the appeal was dismissed.

Conclusion

If you are uncertain about a debt amount or require assistance in this regard, then please contact your financial advisor, who will assist you with taking the next steps.

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)

References:

Trinity Asset Management (Pty) Limited v Grindstone Investments 132 (Pty) Limited (CCCT248/16) [2017] ZACC 32 (5 September 2017)

What is Prescribed Debt?

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)

Drinking and driving – These are your rights

Each year during the festive season, South Africans are confronted with more stringent road blocks and possible arrests for driving under the influence of alcohol. The current legal limit for Blood Alcohol Content is:

  • LESS THAN 0,05g/100ml of blood sampled if you are an ordinary driving licence holder; or
  • LESS THAN 0,02g/100ml of blood sampled if you are the holder of a Professional Driving Permit (PrDP), for example a taxi driver or a bus driver.

Whilst the legal limit in respect of Breath Alcohol Content is:

  • LESS THAN 0,24mg/1000ml of breath sampled if you are an ordinary driving licence holder; or
  • LESS THAN 0,10mg/1000ml of breath sampled if you are the holder of a Professional Driving Permit (PrDP), for example a taxi driver or a bus driver.

Although it is always better to refrain from drinking alcohol if you have to drive, it is important to know what your rights are when pulled over by a police officer for driving under the influence:

  1. You may request that the officer provide identification irrespective of whether or not they are in uniform. If the officer is unable to provide an appointment certificate on demand he or she is in violation of the Criminal Procedure Act and any actions taken by him or her will be unlawful;
  2. If the officer requests you to take a breath or blood alcohol test, you may not refuse. If you refuse, you are in contravention of the National Road Traffic Act and necessary force may be inflicted upon you by the officer to take the required samples;
  3. Samples for your blood alcohol content or breath alcohol content must be taken within 2 hours of the alleged transgression (being pulled over by the officer);
  4. You may only be legally arrested after it has been established by the officer that your blood or breath alcohol level exceeds the legal limit. In other words, you may not be arrested merely because your breath smells of alcohol;
  5. You have the right to remain silent and not to make self-incriminating statements. In other words, you do not have to disclose to the officer how many drinks you had;
  6. You have the right to know who the registered medical practitioner is that takes your samples. You may also request for access to your own medical practitioner if he or she is available, the costs of which will be for your personal account;
  7. If you have been arrested, you may use a telephone to contact a relative or an attorney;
  8. If you are on chronic medication, you have the right to take your medication whilst in police custody if a doctor so prescribes;
  9. You have the right to apply for bail once you have been charged and an Investigating Officer has been assigned to your case. If bail is refused for whatever reason, you have to appear in court within 48 hours of your arrest, or during the first court day after the expiry of the 48 hours if the period expires outside ordinary court hours or on a day which is not an ordinary court day. The latter applies when you have for example been arrested on a Friday night and you will then only appear in court during the upcoming Monday;
  10. You have the right to being treated fairly and with respect by all the officers involved and the station where you are being held must provide you with food and water;

It is always better to give your co-operation and to be friendly with the officers.

Remember that it is a criminal offence to bribe police officers. If you are requested to pay a bribe by an officer, immediately report the offence to the relevant authorities.

We wish you a safe and memorable festive season!

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)

Unopposed and opposed divorce: What’s the difference?

My spouse said that he/she won’t ‘give me a divorce’. What can I do? Your spouse can oppose the divorce, but it is the Court that grants a divorce, not your spouse. If the Court is convinced that the marital relationship has irretrievably broken down, the Court can grant a decree of divorce even if your spouse does not want to get divorced.

There is a process, called a ‘rule 43’ application, whereby you can ask the Court to grant an order regarding the interim contact to the minor children and maintenance pending the finalisation of the divorce. You can also seek an order for a contribution towards your legal costs, pending the finalisation of the divorce.

What costs are involved?

In the case of an unopposed divorce (i.e. there is no dispute between yourself and your spouse about the divorce or what should happen), your fees will include the drafting of a summons, a settlement agreement, attending Court, consultations and counsel fees. Other expenses incurred may include Sheriff’s fees, traveling costs and admin such as photocopies. Where a divorce is opposed, the costs become unpredictable and entirely dependent on the specifics of the case, the disputes, and the amount of time dedicated to the matter.

How long does it take?

Where a divorce is unopposed and there are no complications or children involved, it can sometimes be finalised in as little as two to three months.

Where a divorce is opposed, it can easily take two to three years, or more. In most cases, however, divorces get settled before the parties have to go to Court – even where the divorce started out as an opposed divorce. As soon as the parties in an opposed divorce reach a settlement agreement and the divorce becomes unopposed, it can again be possible to finalise the divorce in as little as two months.

What you need to do

Before you approach the Court to start divorce proceedings, you should get certified copies of as many of the following documents as you can:

  • Your identity document
  • Your Ante-Nuptial Agreement, if any
  • The children’s births certificates, if any, and
  • Your marriage certificate (the original)

Also make sure you have the following information handy:

  • Your full name(s), surname, identity number, occupation and place of residence
  • Your spouse’s full name(s), surname, identity number, occupation and place of residence
  • Date when you got married and where the marriage took place
  • Children’s full names, surnames, identity numbers
  • Comprehensive details of any funds (such as pension funds, retirement annuities and provident funds) which you or your spouse belongs to, and
  • A list of your assets and liabilities.

You may institute divorce proceedings in either a High Court or Magistrates’ Court (Regional Court), but where the parties are representing themselves in a simple divorce, they should approach the Regional Court.

Reference:

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 the Deeds Office do?

The Deeds Office is responsible for the registration, management and maintenance of the property registry of South Africa. If you are planning on buying a house, it can be useful knowing about the Deeds Office. However, you would use the services of a conveyancer when buying or selling a house. It is recommended that the services of a competent conveyancing firm is utilised in order to minimise the pitfalls that can be associated with property transactions.

What is conveyancing?

Conveyancing is the legal term for the process whereby a person, company, close corporation or trust becomes the registered and legal owner of immovable property and ensures that this ownership cannot be challenged. It also covers the process of the registration of mortgages.

Steps taken by the conveyancer:

  1. The conveyancer lodges your title deed and other documents in the Deeds Office for registration. These documents will be individually captured on the system. If there is a bond, the conveyancer dealing with the bond will lodge the bond documents with the Deeds Office at the same time as the transfer documents. The transfer, bond and cancellation documents must be lodged in the Deeds Office at the same time to ensure simultaneous registration. If different conveyancers are dealing with registering the purchaser’s bond and cancelling the seller’s bond, then they will need to collaborate.
  1. The Deeds Office examiners go through the documentation that has been submitted, and make sure that it complies with the relevant laws and legislations.
  1. The examiners then inform the conveyancer that the deeds are ready to be registered.
  1. Registration takes place with the conveyancer and Registrar of Deeds present. The transfer of the property is then registered in the purchaser’s name. If there is a bond, it is registered at the same time.
  1. Upon registration, the purchaser becomes the lawful owner of the property. The title deed that reflects this ownership is given to the conveyancer by the deeds office after the registration. Unless a bond has been registered as well, in which case the title deed is given to the bond holder.

The time taken to register a property at the Deeds Office depends on various factors and a number of parties. On average, registering a property transfer takes six to eight weeks, although unforeseen difficulties can cause the period to be extended.

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)

Renting or selling property to foreigners

Renting property in South Africa is a straightforward process. The country has a vast selection of rental accommodation including bachelor flats in apartment blocks, Victorian cottages, stand-alone houses with big gardens, and semi-detached units in modern townhouse complexes.

In South Africa, the right of a foreigner to purchase immovable property was restricted in the past by the Aliens Control Act. These restrictions were uplifted in 2003 by the new Immigration Act (“the Act”) which repealed the Aliens Control Act and many of its restrictive provisions and now clearly defines who a legal foreigner is and who is not. In short, a legal foreigner is a person in possession of a valid temporary residence permit or a permanent residence permit approved by the Department of Home Affairs.

The new Act makes provision for various temporary residence permits to be issued to foreigners, including amongst others:

  • A visitor’s permit
  • A work and entrepreneurial permit
  • A retired person permit

In principle, a landlord or tenant can legitimately lease or sell immovable property to any person recognised under the Act as a legal foreigner.

That said, foreigners working in South Africa with a legal work permit, are not regarded as “non-residents” by the South African Reserve Bank. They are considered to be residents for the duration of the period of their work permit and are therefore not restricted to a loan of only 50% of the purchase price.

It is also important to take note that the Act criminalizes the letting or selling of immovable property to an illegal foreigner by making this transaction equivalent to the aiding and abetting of an illegal foreigner and is such an act classified as a criminal offence in terms of the Act.

In conclusion, a legal foreigner may let or buy immovable property in South Africa, provided that he is the holder of either a legal temporary residence permit or a permanent residence permit approved by the Department of Home Affairs. Ensure that you enquire from your potential tenant or purchaser whether they are legally present in South Africa and obtain the necessary proof from them before entering into any transaction with a foreigner. Also, take account of the restrictions on local financing, particularly where the procurement of financing is a condition precedent to the agreement.

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)

TRUSTS AND INDEPENDENT TRUSTEES: WHY AN INDEPENDENT TRUSTEE?

In the Supreme Court of Appeal case, Land and Agricultural Bank of South Africa v Parker, the dilemma of insufficient separation between the control and enjoyment of trust assets came to the forefront.

To address this issue, Cameron JA mentioned, obiter dictum, that the problem at hand may possibly be addressed as follows:

…by insisting on the appointment of an independent outsider as trustee to every trust in which (a) the trustees are all beneficiaries and (b) the beneficiaries are all related to one another. 

The Master of the High Court has now taken positive steps to implement the above obiter dictum by issuing a directive in March 2017, which requires that all new trusts registered with the Master, which are so-called family business trusts, must have an independent trustee.

The independent trustee must sign a sworn affidavit in which he/she confirms that he/she has: no family relation or connection, by blood or other, to any of the existing or proposed Trustees, beneficiaries or founder of the trust.

We therefore strongly advise that you choose your independent trustee carefully as he/she will form part of all future decisions made by the trustees.

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)

DEATH AND TAXES

“…in this world nothing can be said to be certain, except death and taxes

Benjamin Franklin, in 1789

Have you considered seeing a professional regarding your Estate Planning?

Estate Duty is levied at 20% on all property in your estate over the cumulative value of R 3 500 000.00. Unfortunately an estate is not only subject to Estate Duty, but also Capital Gains Tax on certain assets. This could have a negative effect on the liquidity of your estate.

Proper Estate Planning, done timeously, can limit the exposure of your estate to the legal minimum.

At Delport van den Berg Estate & Trust Services, we offer holistic Estate Planning solutions to ensure that your Assets are transferred to your loved ones in a stable and tax effective manner, thereby guarding your Legacy.

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)

WILL, IT HOLD UP?

Is your current Will valid? Do you have your originally signed Will? Is it kept in a safe place? Do you know who your executor is? Are the provisions in your Will feasible?

All these questions are of utmost importance to ensure that your wishes are adhered to and your loved ones are able to avoid undue frustration during their time of mourning.

The Testator or Testatrix typically have good intentions when drafting certain provisos, but these often lead to unforeseen consequences.

The basic requirements for ensuring that you have a valid Will are set out in the Wills Act 7 of 1953.

Be sure to take note of the following formalities:

  1. The Testator or Testatrix must sign at the end of the Will;
  2. The Will must be signed in the presence of at least two competent witnesses, who are present at the same time and the witnesses must:
    1. Be competent persons (older than 14);
    2. Sign the Will in the presence of the Testator or Testatrix and each other;
    3. Acknowledge the signature of the Testator or Testatrix, not the content;
  3. If the Will has more than 1 page:
    1. The Testator or Testatrix needs to sign each page;
    2. The Testator or Testatrix needs to sign the last page at the end;
    3. The witnesses need to sign only the last page.
  4. If the Will is signed by the Testator or Testatrix, by the making of a mark or by some other person in the presence and by the direction of the Testator or Testatrix – additional formalities will apply.

The person who writes or witnesses a Will is disqualified from receiving any benefits from the Will. The executor, appointed trustee or guardian will also be disqualified to act should he/she or his/her spouse sign as witness.

We are able to assist and ensure that your Will gives effect to your wishes.

To draft a Will, update your Will or receive sound advice, contact the experts:

Call us: 012 361 5001 or Email us: info@delberg.co.za

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)