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May 20, 2020

NON COMPOS MENTIS


A client asked me if she could still act on a power of attorney that her mom signed in her favour, now that her mom had been diagnosed with dementia.

At law, a power of attorney terminates on the incapacity of person (who becomes incompetent in law and is deemed “to be of unsound mind and as such incapable of managing his affairs”).

Once the power of attorney becomes invalid, the family must apply for administration or curatorship.

Curatorship

On behalf of the family, a lawyer applies to the High court for three things:

  • to declare the patient of unsound mind and incapable of managing his/her affairs;
  • to appoint a curator ad litem;
  • to appoint a curator bonis or curator personae or both;

The curator ad litem is usually an advocate, who interviews two specialists regarding the patient’s mental facilities, and then reports back to the court whether the patient is of unsound mind and incapable of managing his/her affairs.

If so, the court will appoint a curator. There are two forms of curatorship and one or both may be appointed:

  • the curator bonis administers the person’s property, including his finances;
  • the curator personae takes personal decisions for the person. This involves serious curtailment of the person’s rights and freedoms and the court is therefore not easily persuaded to grant such an appointment.

Administration

The Mental Health Care Act provides for the appointment of an administrator to manage the patient’s property.  This Act applies only to the mentally ill and to those with severe or profound intellectual disability.

It is not necessary to go to the high court for this as you can apply direct to the Master of the High Court.  A mental health care practitioner who could be a general practitioner and not necessarily a psychiatrist – certifies that the person suffers from an illness or disability relating to mental health.

The administration applies only if the capital assets of the patient’s estate is under R200,000 or earns an income of up to R24,000 per year.

The Master appoints an interim administrator to investigate the patient’s finances, etc. and makes a recommendation to the Master.  In this case the costs payable to the investigator are negotiated by the Master, and are payable out of the estate.



May 18, 2020

Death of Collins Khosa in Alexandra

There has been unfounded criticism that the SANDF and the SAP have merely received a rap on the knuckles after the death of Collins Khosa in Alexandra. The judgment by Fabricius makes it clear that much more is to follow:

Khosa and Others v Minister of Defence and Military Veterans and Others (21512/2020) [2020] ZAGPPHC 147 (15 May 2020).

http://www.saflii.org/za/cases/ZAGPPHC/2020/147.pdf

 

“The high court in Pretoria on Friday declared that all people in SA are entitled to a number of rights which cannot be suspended, even during the Covid-19 state of disaster. These include the right to life, the right not to be tortured in any way and the right not to be treated or punished in an inhumane and cruel way”.


May 14, 2020

Must a customary marriage be registered to be valid?


 

The short answer is NO: Failure to register a customary marriage does not affect the validity of that marriage. 

The Recognition of Customary Marriages Act 120 of 1998 (the Act) sets out the requirements for a valid customary marriage concluded before or after 15 November 2000, when the act commenced.

The Act defines ‘Customary Law’ as ‘the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples’ and ‘Customary marriage’ as ‘a marriage concluded in accordance with customary law’. 

Requirements for validity 

Section 3(1) of the Act provides that ‘For a customary marriage entered into after the commencement of this Act to be valid –

(a) the prospective spouses –

(i) must both be above the age of 18 years; and

(ii) must both consent to be married to each other under customary law; and

(b) the marriage must be negotiated and entered into or celebrated in accordance with customary law’. 

Registration of a customary marriage

 

·         Section 4(1) of the Act provides that “The spouses of a customary marriage have a duty to ensure that their marriage is registered” and goes on to set out what information either spouse may give to the registering officer at Home Affairs and that the parties must cause the marriage to be registered within a period of three months after the conclusion of the marriage.

 

·         Parties married before 15 November 2000 have twelve months to register.

 

·         In both cases, if parties missed the deadline, it could be extended by such longer period as the minister may from time to time prescribe by notice in the Government Gazette. In terms of s4(3)(a) and (b) of the Act (GN1045 GG42622/8-8-2019) the minister recently extended the period for registration up to 30 June 2024 for both a customary marriage entered into on or after 15 November 2000.

 

·         If the registering officer is satisfied that the spouses concluded a valid customary marriage, he or she will register the marriage by recording the identity of the spouses, the date of the marriage, any lobolo agreed to and any other particulars prescribed. He then issues spouses a certificate of registration, bearing the prescribed particulars.

 

·         If for any reason a customary marriage is not registered, any person who satisfies a registering officer that he or she has a sufficient interest in the matter may apply to the registering officer in the prescribed manner to enquire into the existence of the marriage. If the registering officer is satisfied that a valid customary marriage exists or existed between the spouses, he or she must register the marriage and issue a certificate of registration. On the other hand, if a registering officer is not satisfied that a valid customary marriage was entered into by the spouses, he or she must refuse to register the marriage. Affected parties may then approach a court that may, depending on the facts of each case either order –

(a) the registration of any customary marriage; or

(b) the cancellation or rectification of any registration of a customary marriage effected by a registering officer. 

·         Failure to register a customary marriage does not affect the validity of that marriage.

 

 

 


May 06, 2020

PERSONAL INFORMATION FOR MY SURVIVORS UPON MY DEATH OR BECOMING INCAPACITATED

I have posted a Wishes and Memories booklet on our website that will be 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.

To save your survivors as much heartache as possible immediately following your death, I advise you to: 

  • Put together a box file containing all your important documents, and tell your nearest and dearest, where it is. In this box file, store your will, marriage contract, insurance policies, title deeds, papers for cars, caravans and boats, timeshare information. and other important papers; 
  • List your creditors (credit card, loans, mortgages, store accounts, etc.);
  • List important numbers for your executor and family, such as the name of your broker, lawyer, doctor, dentist, financial advisor, etc.;
  • Leave a list of family and friends, to contact on your death; 
  • List what happens to your DSTV, armed response, personal and home insurance, etc.; 
  • List codes for your security system, and post office box, etc.; 
  • Describe where you want to be buried or cremated, and your funeral wishes, in general; 
  • List all your virtual accounts, usernames and passwords (ranging from email accounts to your social networking profiles (Facebook, Twitter, LinkedIn, etc.), blog posts, photo or music sharing accounts and digital purchases through for example eBay or Takealot.com. Retain these passwords, with other valuables, in a safety deposit box, to be revealed to your executors, only on your death; 
  • Create a digital estate plan (in your will or in a letter of wishes) Instructing your executors whether to maintain your social media sites.
  • Facebook asks: How do I report a deceased person or an account on Facebook that needs to be memorialized? Memorialized accounts are a place for friends and family to gather and share memories after a person has passed away. Memorializing an account also helps keep it secure by preventing anyone from logging into it.
  • What happens to your Twitter account when you die or become incapacitated? “In the event of the death of a Twitter user, we can work with a person authorized to act on behalf of the estate, or with a verified immediate family member of the deceased to have an account deactivated. In the event a Twitter user is incapacitated, due to medical or other reasons, we can work with a person authorized to act on the behalf of the user to have an account deactivated”.