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October 05, 2017

Adoption Advice – can I adopt my friend’s baby?

A client asked how she goes about adopting her friend’s child, soon to be born. The friend wishes to give up her baby for adoption.

The biological parents would need to receive counselling from an accredited adoption social worker to look at all the options available to them when planning the future for their unborn child.

Should they decide on adoption, they will be assisted to sign consent for the baby’s adoption, in a Children’s Court.

The biological parents would have 60 days after signing the adoption consent to change their minds about the adoption.

Its best that during this period, the baby is placed in a temporary safe care facility.

As a prospective adoptive parent, you would need to go through a screening process with an accredited adoption agency or with an accredited adoption social worker in private practice which involves attending an orientation meeting, interviews with a social worker, a full medical with a doctor on our panel, a psychological assessment, a marriage assessment (if married or in a committed relationship), a home visit, police clearance and clearance from the Child Protection Register.  You would also be required to attend a full day’s training and preparation group.

The screening can take between 5-6 months. There is a charge for all professional services and you would be responsible for paying the doctor and psychologist directly.

The baby would remain in temporary safe care until the prospective adopters have completed the screening process and the baby has become adoptable.

For more on this topic, go here: https://goo.gl/e2AHvJ

September 27, 2017

Sectional title owners – who is responsible for excess payments on insurance claims?

Owners in sectional title schemes believe – incorrectly – that because the body corporate insures the common property it must pay any insurance excesses (e.g. for a burst geyser).
In fact, the Sectional Title Act provides that the owner in a sectional title scheme is responsible for all excess payments on insurance claims – unless the body corporate has passed a special resolution that it will cover these, in certain special cases.
Prescribed Management Rule 29 (1) requires the trustees to take reasonable steps to insure the buildings and all improvements to the common property to the full replacement value and must negotiate excess amounts, premiums, cover, and insurance rates on behalf of the body corporate.
The most common insurance claims relate to damage caused by burst geysers and the problems they cause. Insurance companies often negotiate a higher excess amount for such claims, to reduce the overall insurance premium and claims.
Most insurance companies have call centres set up to deal with the more common claims and on these cases no excess, or a considerably reduced excess, will usually be payable, provided the centre is contacted quickly and allowed to send one of their preferred suppliers to handle the work. Quick action by the owner can save unnecessary damage to the unit (and to other units).

September 14, 2017

Landlord harassing a tenant?

What rights do I have when a landlord victimizes me as a tenant?

You should take the matter up with the Rental Housing Tribunal, who offer their services free of charge. Click here to find out more about your rights as a tenant, and residential leases: https://goo.gl/QkPd8f

Provincial Rental Housing Tribunal contact list:
Gauteng – 011 630 5035
Western Cape – 021 483 4190
KwaZulu Natal – 031 336 5300/5222
North West – 018 387 6057
Limpopo – 015 294 2241
Mpumalanga – 013 7666 200
Northern Cape – 053 830 9444 / 9544

September 09, 2017

Does my mom’s power of attorney endure if she can’t manage her affairs?


A person has full contractual capacity if he or she can conclude a legally binding contract. A party’s contractual capacity may be affected by mental illness, intellectual disability, physical disability, head injury, an extended period of unconsciousness, stroke or extreme old age, etc. 
In some countries, a person can make an Enduring Power of Attorney for his or her property or personal care and welfare. The Enduring Power of Attorney for property will take effect at any time or only if the person becomes mentally impaired. The Enduring Power of Attorney for personal care and welfare will only begin when he or she is no longer capable of making personal decisions to deal with their own affairs, due to any of the above reasons. 
In South African law, there is no such concept. If you execute a special (for limited purposes) or a general (an all-encompassing) power of attorney in favour of someone (called your agent) the agent’s authority to act under that power of attorney ends on your death, insolvency or incapacity (where you are unable to make rational decisions or are incapable of managing your own affairs).
So, if the power of attorney ends, what’s next?
If the value of your mom’s estate exceeds R 200,000 and his annual income is more than        R 24,000, then we must apply to court for the appointment of a curator bonis or curator ad personam, to manage her affairs. This is a hugely expensive business.
The term “bonis” means “goods” (as in assets) in Latin. A curator bonis is concerned only with the financial affairs of the person. The curator ad personam (often the same person) is a person appointed by a court to manage the day to day personal affairs of a person unable to do so because of mental or physical incapacity.  The term “ad personam” means “for the person” in Latin. 
If her estate and income, is less than R 200,000 and her annual income is below R 24,000, we can apply to the Master of the High Court in terms of the Mental Health Care Act, firstly to declare that your mom is mentally ill, and then for the appointment of administrator (usually an attorney) to care for and administer the property of the mentally ill person. This is a simpler and cheaper process.

September 02, 2017

Can new owners be held liable for historic municipal debt on their property?

In the case of Jordaan v Tshwane municipality, the Constitutional court handed down a judgment on 29 August 2017, dealing with the constitutional validity of S118(3) of the Local Government Municipal Systems Act, which provided that “an amount due for municipal service fees, surcharges on fees, property rates and other municipal taxes, levies and duties is a charge upon the property in connection with which the amount is owing and enjoys preference over any mortgage bond registered against the property”.
The Constitutional Court had to decide if this provision allows a municipality to claim the debts of a former owner from the new owner, and if so, whether this provision was constitutional.
In this case, the applicants approached the High Court (and won) by alleging that it was unlawful for a municipality to suspend municipal services or refuse to conclude a consumer services agreement for municipal services until the historical debts relating to the property had been cleared.

The municipality appealed to the Constitutional Court and lost. The court found that:

·         while a municipality has the constitutional obligation to collect revenue and pursue debtors, it can only claim the money from the actual debtor (previous owner) and cannot claim the historic debt from the new owners;

·         holding the new owners liable for the debt was an arbitrary deprivation of property.

Presumably, this outcome will open the floodgates to many actions against the municipalities that recovered historic debt from the new owners.  

August 19, 2017

Must a contract be in writing to be binding?

Elements of a contract
·         A contract consists of an offer by the offeror (the seller or service provider) to the offeree (the buyer or client) to buy goods (movable or immovable) or services, for an agreed price or fee;
·         A contract becomes binding when the offeree accepts the offer;
·         Obviously, there must be agreement as to what is being offered;
·         There must be an intention to contract freely and voluntarily. Any misrepresentation by either party will render a contract void. Anyone who is coerced or bullied into signing a contract will have a defence of duress.
·         The person who wants to conclude a contract must also satisfy certain legal requirements:
o    He or she must have mental and contractual capacity. This means that the person must be sane and not under the influence of any drugs or alcohol which could affect his ability to fully appreciate what he is agreeing to;
o    He or she must be a major (18 years or older) unless his parents or guardian assist him;
Oral or written
As a rule, parties can do a deal with a handshake, or even orally.
However, in South Africa, there are a few contracts that must be written to be enforceable:
·         An agreement to sell immovable property (land, house or building);
·         Suretyship agreements, credit agreements, antenuptial (marriage) contracts, leases over ten years, and contracts for executionary donations (to be made later);
·         Wills.
Some contracts, both oral and in writing, may not be enforceable, e.g. if they are illegal, contra bonis mores (that means against public policy or norms) or impossible to perform.
Importance of written contracts
Why is it important to reduce a contract to writing, even if you don’t have to, in law?
·         It’s easier to prove the existence of a written contract;
·         Written contracts provide individuals and businesses with a legal document stating the expectations of both parties;
·         If a party breaches a term of the contract, the consequences of a breach and the remedies, are set out.
Contracts in business
·         Written contracts are for your protection;
·         A business contract states the terms and conditions of any business transaction, including product sales and delivery of services. This helps the parties involved avoid any type of misunderstanding that may arise, in the absence of a written contract;
·         If you use written contracts, it is far less likely that you will end up in court - your clients will be much more inclined to work with you to find a solution and work things out.;
·         If you have an oral agreement, you might forget some points that you have agreed on verbally, with the passage of time. But with a written agreement, all the terms and conditions are clear, and you can always amend the agreement with the consent of both the parties.
·         Companies also can use non-compete agreements to limit the type of services offered by former employees who have specific knowledge about the company’s specialized business services.
Termination of a contract
·         Some agreements terminate automatically after a fixed term (such as a property lease) or event (fixed term employment contract),
·         Parties to an agreement that carries on for an indeterminate period, can mutually end a contract if the business relationship has ended;
·         An oral contract can be terminated, verbally;
·         Parties should formally terminate a written contract, in writing.
·         If a party is in breach of a written contract (e.g. the goods sold are defective or the services provided, are poor), the other party has the remedies set out the contract, or at law (such as the Consumer Protection Act);
·         Some contracts require the one party to give the party in breach written notice to remedy the breach, before the first party can cancel.   
·         Termination will not affect any liabilities for breach of contract that occurred before the contract is ended.

August 11, 2017

All about annual leave

With the December break just around the corner, I thought that this snippet would be useful.

·         The provisions in the Basic Conditions of Employment Act that apply to annual leave do not apply to an employee who works less than 24 hours per month or to employees who earn above the earnings threshold laid down in the Act (currently as from 1 July 2014, R205 433.30 per annum);

·         Employees are entitled to 21 consecutive days annual leave on full remuneration, in respect of each annual leave cycle;

·         If an employee works a five-day week, this is equal to 15 working days (or 1,25 days per month);

·         If the employee works a six-day week, this is equal to 18 working days (or 1,5 days per month);

·         Working days exclude public holidays. Whilst an employee is on annual leave, and a public holiday falls on a day on which the employee would ordinarily work, then the employee is entitled to an extra day annual leave for each such public holiday.

·         For temporary employees, or fixed term employees, the parties may agree that annual leave may be calculated on the basis of 1 hour of annual leave on full remuneration for every 17 hours (alternatively 1 day annual leave on full remuneration for every 17 days) on which the employee worked or was entitled to be paid;

·         The employee is entitled to take whatever leave he has accumulated in an annual leave cycle, on consecutive days. If an employee does not take a portion of leave during an annual leave cycle, the leave is automatically carried over to the next annual leave cycle, unless the parties agree otherwise. An employee can demand to take the carried over leave if he or she has still not taken his annual leave from the previous cycle within six months of the new cycle, and the employer may not refuse such permission.

·         If an employee is on annual leave and falls ill during that period, if she produces a doctor’s certificate that she was unfit for work during that time, she is entitled to additional annual leave for each such day. What this means is that the employer must credit that employee’s annual leave with the number of days sick leave, and debit the employee's sick leave.

·         The employer may not force an employee to take annual leave during any period of notice, and the employee is prohibited from taking annual leave during any period of notice.

·         Absent an agreement between employer and employee as to when annual leave can be taken, it is taken at a time to suit the employer. Many employers have a shutdown period over December. If this is the case, the employer is entitled to stipulate that annual leave must be taken to coincide with the shutdown period. Should an employee utilize his annual leave at another time during the year, then the shutdown period will be treated as unpaid leave.

·         An employee can’t take cash in lieu of annual leave except upon termination of employment.

August 09, 2017

A servitude can affect the value of a property.

When you’re hunting for a property, it’s important to ask the right questions, and one of them should be: ‘is there a servitude?’ The presence of a servitude can affect the value of a property for both buyers and sellers, if a property owner is unable to fully exercise his or her ownership over the property.

What is a servitude?

A servitude is defined as a registered right that someone (called the servitude of servient holder) has over the immovable property owned by another person, that places limitations on the right of ownership, and constitutes a burden on the property in question; it must be registered against the title deeds of a property.

There are two types of servitudes, praedial or personal. Each depends on whether it benefits a particular piece of land or a particular person:


Here, the benefit favours land, and, regardless of the identity of the owner at any given point, successive owners will benefit from the interest in the servient land, in perpetuity. The servitude is registered against the title deeds of both pieces of property. There are two types of praedial servitudes, urban (where land is used for purposes of habitation, trade or industry) and rural (giving a farmer a right or way, a water or grazing servitude and a way of necessity). Thus, a person has a limited right of use of his neighbour’s land. For example, farmer A has the right to cross the property of farmer B, or drive his cattle over or allow them to graze on, Farmer B’s land. 

Two farmers may have a registered agreement regarding the maintenance of the servitude, e.g., farmer B maintains the road to his farm if farmer A contributes to the maintenance of the road, proportional to his use of the road. In this case, an interested buyer of the property should be alerted to this right.


A personal servitude, on the other hand, favours one specific person and not successive owners, so it terminates when that person dies or moves on. An example would be the right of the owner of a hemmed-in property to use an access road on the neighbouring property, or to grow a vegetable garden on a tract of his neighbour’s land. It is only registered against the title deed of the servitude holder.

If you are looking to buy a home on a panhandle stand, it’s important to ensure that there is a registered servitude over the front property, to ensure unhindered access to your property.

Our courts require some flexibility. In the case of Linvestment CC vs Hammerlsey, the Supreme Court of Appeal had to decide if a property owner could vary the terms of a registered servitude without the consent of the holder of the servitude. The court found that although Roman and Roman Dutch authorities held that a registered servitude could not be changed without the mutual consent of both property owners, it was in the interests of justice and in line with international trends to follow a more flexible legal approach. It found that as the proposed change was reasonable then the Court could, and did modify the terms of a registered servitude without the consent of the property owner who enjoys the benefit of the servitude.

The effect of this judgment is that if there is a registered servitude that unreasonably prejudices a property owner, he may turn to the court for help.

A service provider, like a municipality or Eskom, may have a servitude on a piece of land, e.g., for the erection of power lines, which prevent or limit activities that may affect their operations, such as no tall buildings or trees within the servitude. This would also affect the selling price.

If you do not insist on seeing a copy of the title deeds and surveyor-general’s diagram when buying vacant land, your plans to build that dream home could become a nightmare.

Both documents will tell you if there is a servitude on the property. The presence of a servitude makes it impossible to build within its area.

July 25, 2017

The importance of keeping a personal file for your heirs

You may know where everything is, but on your death, will your family know where to look?
It’s important to store all your personal documents in a labelled box file, in a safe place, and let your family know where to find it.
Please go here to here - https://goo.gl/2GF1yA - to download a useful booklet chronicling a clear record of your funeral wishes, a source of important documents for legal and public records, and a permanent keepsake of your fondest memories to speak to future generations. Please complete this document and place it in safekeeping together with your will and other important documents. Notify your next-of-kin where these important documents are located. 

Important documents
These include: wills, living wills, trusts, powers of attorney, life insurance policies, health policies, car insurance policy, disability insurance, other insurance policies, safe deposit boxes, deeds, titles, income taxes from previous years, birth certificates, marriage certificate, divorce decrees, identity documents, passport, driver’s licence etc, title and registration of vehicles, and inventory of home furnishings.
Associate information
The include the name, number, and address attorney, executor, accountant, financial advisor, broker, insurance agent, trustees, doctor, tax advisor, and employer.
Family and friends
List immediate family members, distant relatives, pets, local friends, distant friends, and associates.
Personal information
Record driver’s license number, organisations, memberships, clubs, fees, secret hiding places, address book, organ donation wishes.
Assets (Location, Account Number, Types)
State sources of income, cars, boats, house, vacation or rental home, checking accounts, savings accounts, money market accounts, certificates of deposit (CDs), stocks, bonds, unit trusts, valuables, antiques, or jewellery, and precious metals.
Liabilities (Account, Balance, Payments)
List personal loans, bond, car loan, credit cards, business loans, clothing accounts, store accounts, other loans, routine bills, and debit orders.
Miscellaneous information
Provide passwords, security system codes, location of firearms and ammunition, and the place where spare keys are stored.
Funeral arrangements
State cremation or burial (casket), minister and pallbearers, location, indoor or outdoor services, speakers, flowers or donations to charity, name of mortuary or cemetery, burial plot – if pre-arranged, and obituaries.

July 23, 2017

The divorce process – what is entailed

A married couple can end their marriage through divorce. The process of the divorce depends on the type of marriage:
See our website for featured articles: https://goo.gl/pqtUHN
Types of marriages:
·         Civil marriages are dissolved according to the rules in the Divorce Act.
·         Marriages in terms of African Customary Law are dissolved according to the civil law but some of the consequences are determined by custom and tradition.
·         Muslim and Hindu marriages are dissolved in terms of the rites and rituals of the religion.

Check out the acts that apply to divorce and other family law issues: https://goo.gl/fkT3f4

There are several issues that need to be addressed in a divorce, including: 
·         Maintenance
·         Division of property

Before the court can allow the divorce to take place, the parents or court will have to decide who takes care of the children. This decision should be in the best interest of the children, and can be investigated by the Family Advocate.

If the divorce is taking a long time, an interim custody order can be issued setting out who will look after the children while the divorce is being finalised.
In African, Hindu and Muslim customary marriages, the wife usually takes custody of the children. According to African customary law, the father usually remains the children's natural guardian. The children of Hindu and Muslim marriages are regarded as illegitimate, so the mother is also the natural guardian.
In all cases, both parents have a duty to support the children.

An agreement about when, where and how the parent will have access to the children will need to be made.
If it is not in the best interests of the children for the other parent to have access rights, then the court can restrict access (deny altogether or make it supervised).

See this useful article: https://goo.gl/rbh9g6
The court will issue a maintenance order requiring maintenance to be paid for the children.
If there are problems with maintenance after the divorce has gone through, these can be taken to the Maintenance officer at the Magistrate's Court.
Whether one party will have to pay maintenance or support to the other party depends on the circumstances. If the parties cannot agree on how much should be paid then the court will decide.
Because Hindu or Muslim marriages are not fully recognised as legal marriages, the wife has no legal status to claim support after divorce.

How the family property will be divided depends on what property regime the couple adopted when they got married. This will usually be covered in the antenuptial agreement if there is one or, if there is no pre-marital contract, then it is determined by law.

The default legal position is that civil marriages are in community of property with accrual. This means that everything that you own is shared, including property and debts. Accrual means that everything that you earn or buy after you have married also becomes part of the joint estate.
If you get divorced, the shared property is divided equally between you. Any debts are also shared.
If the marriage is out of community of property without accrual, then each person keeps their own property from before the marriage and keeps whatever they earn or acquire during the marriage. Some things, like inheritances or gifts remain separate.
The default property regime has changed for different people at different times. The laws that were in place when you got married will determine what property regime applies to your marriage.
Ending a marriage
·         Ending a civil marriage
·         DIY divorce
·         Default divorce
·         Mediation

A civil marriage needs to be dissolved by a court.
You are only entitled to a divorce if you can prove to a court that you and your spouse can no longer live together and there is no chance of resolving your differences.
If one of the spouses is mentally ill or continuously unconscious, this is also a valid reason for a divorce.
Proof of this can include evidence showing that:
·         The couple have not lived together for a while.
·         One partner cheated on the other.
·         One partner left the other
·         One partner abused the other.
·         The couple no longer love each other. You can get a divorce if your partner has been institutionalised for mental illness for at least two years and doctors don't think that they will ever recover.

If you want to ask the court to issue a divorce you need to prepare a summons dealing with:

·         Who will have primary residence (custody) of the children.
·         How the parent who does not have custody will have contact (access) to the children.
·         Who will receive maintenance, how much it will be and how and when it will be paid.
·         How your property will be divided up.

If you and your partner can reach a settlement agreement before the summons is issued, this will make the process much quicker and easier. If you reach an agreement, you should write it down and sign it. This consent paper should then be attached to the divorce summons.

A hearing date will be set. At this hearing, the judge will ask questions to confirm the information in the summons. Once everything is settled, a divorce order will be granted.
If you use the Family Court instead of a High Court your divorce may go through more quickly and more cheaply.

Customary marriages are similar to civil marriages in that the court must issue the divorce order and the divorce will only be granted if there are grounds for divorce (that is irretrievable breakdown, mental illness or continuous unconsciousness).
The parties can decide the terms of the divorce and then the judge will issue the relevant orders regarding custody and maintenance. If the court has to decide on these matters it will take into account any arrangements that may have been made in terms of customary law.
The wife's family may have to return all or part of the lobola to the husband's family, unless the husband publicly rejected his wife for no reason at all.
If a man and woman were married by an imam in the Muslim religion or a priest in the Hindu religion, they are not married in terms of civil law. They can then divorce without going to court but they must follow the rules of their religion.
You can get a divorce on your own. There are many law firms that offer online services that can help you get a divorce. They will assist you with legal documents and the divorce process.

A default divorce is similar to an uncontested/unopposed divorce. This works when your partner does not respond at all to the divorce.

·         Your partner will receive a summons with a date. The date is a time frame for them to respond.
·         If they do not respond, you can apply at the High Court, to add it to the roll.
·         The court will decide on his/her behalf and end your marriage. 

Mediation is when a third party helps you and your partner reach an agreement. He/she will have a legal background.

·         The mediator will listen to both sides and give possible solutions.
·         They will help you to reach an agreement on custody of your children and dividing your property.
·         You will write a settlement, with their help, and sign it.
·         One partner will be the defendant and the other the plaintiff.
·         The defendant will receive the summons and settlement agreement.
·         The plaintiff will go to court and request to have the case added to the high court roll.
·         When the case is added, the divorce will be concluded.

Documents you will need
·         Your official South African identity document
·         Marriage certificate
·         The court or law firm will provide any other documents

When you apply for a divorce, you will need to get a summons, a document that orders you to be at court. There may also be a divorce settlement attached to the summons.
The emotional effects of a divorce

A divorce may be an emotionally draining process and these steps can help you to recover.
During your divorce, you may experience many emotions. You may not experience all of these emotions, but get help from a counsellor to help you work through them.
·         Denial
During this stage, you may deny what has happened to you and pretend to be "fine" or believe that you are "okay". 
·         Anger
If you have bottled up your feelings, you'll experience anger. This stage often follows denial as you begin to realise what has happened. You may blame your partner or be angry at yourself.
·         Bargaining
 "If only I could go back and do that differently". These feelings leave you feeling guilty as you may wish you had done things differently.
·         Depression
This is a dangerous stage and can last for months or years. You can lose all hope and feel that there is no point to life. 
·         Acceptance
When you accept things, you will be able to move on. This only happens after you have received help.

Getting help

You do not need to get through your divorce on your own. There are many organisations and qualified people who can help you. Try Families South Africa (FAMSA). The organisation is an NGO that deals with divorce counselling and provides support for families. You can contact them on 021 447 7951.