Why People Put Off Drafting a Will in South Africa

 

Written by Roy Bregman, an admitted attorney with over 52 years' experience in wills and estate planning. Read Roy's full biography.

KEY TAKEAWAYS ·        A will is the only way to choose who inherits your assets, who raises your minor children, and who administers your estate. Without one, the Intestate Succession Act 81 of 1987 decides for you. ·        The common reasons for delay (feeling too young, avoiding the topic, assuming the family will sort it out, fear of cost or conflict, indecision) all get harder to resolve over time, not easier. ·        A properly drafted will reduces family disputes, shortens estate wind-up, and limits unnecessary tax leakage. It is one of the highest-value, lowest-cost legal documents you will ever sign. ·        At Bregman Moodley Attorneys you draft your will directly with a partner. Most straightforward wills are completed in one or two short meetings.

 

The gap between knowing and doing

Most adults know they need a will. Few have one in place. A will is the legal document where you decide who inherits your assets, who raises your minor children, and who winds up your estate. Without one, none of those decisions are yours.

The gap between knowing and doing is the single biggest source of avoidable family stress an estates practitioner sees in Gauteng. This article explains why people delay, what actually happens when they do, and how to take the matter off your worry list in a single meeting.

Why do people put off drafting a will?

Most reasons fall into one of five buckets. None of them hold up well under scrutiny.

"I am too young or too healthy"

Wills are not only for the elderly or the unwell. They are for any adult with assets, dependants, or both. Young families need wills more, not less, because there are minor children to provide for and guardians to nominate.

"I would rather not think about it"

Death is uncomfortable. Drafting a will, paradoxically, makes the topic easier to live with. Once your decisions are recorded, you stop carrying them around.

"My spouse and children will just inherit"

This is the most damaging assumption in South African estate practice. If you die without a will, the Intestate Succession Act 81 of 1987 decides who inherits and in what shares. The Act does not know about your blended family, your second marriage, the partner you never formally married, or the friend who raised you.

"It will be expensive or complicated"

A standard will from a reputable attorney is one of the lowest-cost professional documents you will ever sign. Complexity comes from the assets, not from the drafting.

"I cannot decide who should get what"

This is the most honest reason and the easiest one to resolve. A partner who has done this work for decades will usually walk you through the decision in one sitting.

What happens if you die without a will?

Your estate becomes intestate. The Master of the High Court appoints an executor (often someone you would not have chosen), and your assets are distributed under a statutory formula in the Intestate Succession Act.

The practical consequences are predictable. The wind-up takes longer because there is no nominated executor and no clear list of assets. Minor children's inheritances may be paid into the Guardian's Fund until they turn 18, with limited access in the meantime. Family members you wanted to provide for (a long-term partner you did not marry, a stepchild you did not formally adopt, a charity, a loyal employee) may receive nothing. Disputes among heirs are common and expensive. Litigation at this stage usually costs more than drafting a will twenty times over.

What does a properly drafted will actually do?

A well-drafted will does five things, in roughly this order of importance.

It directs your assets to the right people

You decide who inherits, in what proportions, and on what conditions.

It appoints an executor you trust

The executor controls the estate from the moment you die until it is wound up. A capable executor saves the family months and, often, real money.

It provides for minor children

You can nominate a guardian, set the age at which children receive their inheritance, and create a testamentary trust (a trust that comes into existence on your death) to hold and manage the inheritance until then.

It reduces disputes

Clear instructions, signed and witnessed correctly under the Wills Act 7 of 1953, are difficult to challenge. Most family fights happen where the wishes are unclear or unrecorded.

It supports sensible estate planning

A will is part of, not a substitute for, broader estate planning. Used well it can manage estate duty exposure, protect a vulnerable beneficiary, and align with any family trust or business succession plan you already have.

Why does delay make things worse over time?

Two things grow with time: the size of your estate and the complexity of your life. New property, new investments, a second marriage, children from different relationships, a growing business. Each one adds a layer that an out-of-date or non-existent will cannot handle. The point at which a will is hardest to draft is also the point at which it is most needed.

How long does it take to put a will in place?

For most clients, a straightforward will is done in two short meetings. The first covers your circumstances and instructions. The second is signing, witnessing, and taking custody of the original. Complex estates take longer, but rarely more than a few weeks.

Frequently asked questions

Is a handwritten or self-drafted will valid in South Africa?

It can be, but only if it complies strictly with the formalities in the Wills Act 7 of 1953. Most home-drafted wills fail on signing or witnessing and are partly or wholly invalid. The Master of the High Court rejects defective wills regularly. The cost of a properly drafted will is small compared with the cost of fixing a defective one after death.

What happens to my will when I get married, divorced, or have a child?

A subsequent marriage does not automatically invalidate your will, but it should be reviewed. Divorce has a specific effect: bequests to a former spouse generally lapse if you die within three months of the divorce. Any major life event (marriage, divorce, birth, death of a beneficiary, large inheritance, emigration) is a trigger to update.

Where should I keep my original will?

The original signed will is the only document the Master of the High Court will accept. Keep it somewhere fireproof, secure, and known to your executor. Many Bregman Moodley clients leave the original with us in safe custody at no cost and keep a certified copy at home.

Can I disinherit a spouse or child?

You can largely choose who inherits your estate. A surviving spouse may have a claim for reasonable maintenance under the Maintenance of Surviving Spouses Act 27 of 1990, and dependent children may have a maintenance claim against the estate. A clear will, drafted with these claims in mind, reduces the risk of a successful challenge.

Do I need a will if I already have a family trust?

Yes. A trust holds only the assets transferred into it. Anything in your personal name at the date of death (your home, vehicles, bank accounts, investments, personal effects) passes under your will. Trust and will should be drafted together so they pull in the same direction.

Conclusion

Drafting a will is one of the simplest, cheapest, and most generous acts of administration you can do for the people you love. The reasons people delay are real but solvable. The reasons not to delay are concrete and grow with time.

If you have been meaning to put a will in place, the next step is short: a single conversation with a partner who can give you a clear set of options and draft the document around your life, not a template.

Spam Calls Have Met Their Match: What the New Consumer Protection Regulations Mean for You

 

On 15 April 2026, the Minister of Trade, Industry and Competition, Mr Mpho Parks Tau, published the Consumer Protection Act Amendment Regulations, 2026 (Government Notice R. 7380 in Gazette No. 54521). The regulations amend the 2011 Consumer Protection Act Regulations and, for the first time, give South African consumers a practical, one-stop way to block unwanted direct marketing calls, SMSs and emails.

The idea is simple. Instead of fighting each marketer one by one, you register a single “pre-emptive block” with the National Consumer Commission (NCC). From that moment on, every registered direct marketer in the country is legally required to leave you alone.

What the new regulations actually do

The amendments insert new definitions and a new set of obligations into regulation 4 of the 2011 Regulations. In plain English, they do five important things.

•       Create a national opt-out registry. The NCC operates a central “opt-out registry” under section 11(3) of the Consumer Protection Act. The registry must be accessible to everyone in South Africa at all times, except during unforeseen technical interruptions.

•       Introduce a consumer “pre-emptive block”. A consumer can register a pre-emptive block by completing the form in the new Annexure O. One registration covers all direct marketers, not just the one who last bothered you.

•       Force direct marketers to register too. No company may contact a consumer for direct marketing unless the company is itself registered on the NCC’s opt-out registry, using the form in the new Annexure P. Initial registration is R2,574 in 2026, with annual renewal of R1,930.50 (rising each year).

•       Require monthly “cleansing” of marketing databases. Registered direct marketers must strip consumers who have registered a pre-emptive block out of their databases each month, checked against the Commission’s registry. This is no longer a once-off exercise — it is a continuous compliance duty.

•       Require marketers to identify themselves. Every direct marketing communication must show the marketer’s name, electronic address, physical address and contact number. Anonymous broadcasts from public platforms are prohibited.

Why this matters for consumers

Before 15 April 2026, the right to opt out existed on paper, but the system was broken in practice. You had to reply “STOP” to every SMS, hunt for unsubscribe links at the bottom of emails, and take fresh action every time a company bought or sold your data. As soon as your number changed hands, the spam started again.

The new regulations flip the script. The burden now sits with the marketer. If you have registered a pre-emptive block and a direct marketer contacts you anyway, the marketer is in breach of the regulations — even if it was another company that handed over your details. The onus is on marketers to check the registry and clean their data, every single month.

What you should do right now

If unwanted calls and messages are driving you up the wall, take these practical steps:

•       Register a pre-emptive block. Complete the Consumer Pre-emptive Block Form (Annexure O) with the NCC. It asks for your ID or passport number, name, contact details and physical address. Once captured, you are treated as having opted out of direct marketing across the board.

•       Keep your information current. Regulation 4(9) obliges you to keep the details on the registry up to date. If you change your cellphone number or email address, update the registry so the protection follows you.

•       Record every unwanted contact. Save screenshots of SMSs, WhatsApp messages and emails, and note the date, time and company name for any calls. Each contact after registration is a potential contravention.

•       Insist on the marketer’s details. Direct marketers are now required to disclose their full name, electronic address, physical address and telephone number in each communication. If they will not, that alone is a breach.

•       Lodge a complaint. Use the updated NCC complaint form (the new Annexure E) to report the marketer. The regulations preserve your right to pursue the company through the ordinary courts as well.

A word for businesses

If your business uses any form of direct marketing — cold calls, SMS campaigns, email blasts, WhatsApp broadcasts, in-app push messages — you now need to register on the NCC opt-out registry using Annexure P, pay the prescribed fee, and build a monthly cleansing process into your marketing operations. Failing to do so exposes the business to complaints before the NCC, referrals to the National Consumer Tribunal, and potential claims under POPIA where personal information has been misused.

How BMA Law can help

At BMA Law, we help consumers enforce their rights against aggressive direct marketers, and we help businesses bring their marketing operations in line with the new regulations before complaints start landing on their desks. Whether you need help filing an NCC complaint, drafting a cease-and-desist letter, or updating your marketing compliance framework, speak to our team for practical, no-nonsense advice.

Contact BMA Law: roy@bmalaw.co.za • www.bmalaw.co.za

 

Disclaimer: This article is for general information only and does not constitute legal advice. References to the Consumer Protection Act Amendment Regulations, 2026 are based on Government Notice R. 7380 published in Government Gazette No. 54521 on 15 April 2026. Consumers and businesses should consult a qualified legal adviser for advice on their specific circumstances.

Are Customary Marriages in South Africa In or Out of Community of Property?

 Written by Roy Bregman, an admitted attorney with over 51 years' experience in South African matrimonial and customary law.

Key takeaways

·        Customary marriages before 15 November 2000 are generally governed by the older customary-law property system, subject to later constitutional and court developments.

·        Customary marriages entered into on or after 15 November 2000 are in community of property, unless the parties validly concluded an antenuptial contract before the marriage.

·        Courts have increasingly protected spouses, especially women, by recognising equality and proprietary rights in customary marriages.

·        Spouses in unregistered customary marriages should register the marriage as soon as possible, and in any event before 31 August 2026, to reduce legal uncertainty and protect both spouses' rights. Failure to comply with legal requirements, including registration, can create serious evidential, administrative and financial risks.

Introduction

Customary marriages in South Africa are regulated by the Recognition of Customary Marriages Act 120 of 1998 (RCMA), which came into operation on 15 November 2000. The Act gave full legal recognition to customary marriages and aligned this area of law with constitutional values such as equality and dignity.

A key aspect of the RCMA is the matrimonial property regime applicable to customary marriages:

·        Section 7(1) preserves the proprietary consequences of marriages concluded before the Act.

·        Section 7(2) provides that marriages concluded after the Act are automatically in community of property, unless the parties agreed otherwise through an antenuptial contract before marriage.

·        Section 7(6) regulates further marriages in polygynous unions and requires court approval of a written contract dealing with the matrimonial property system.

Registration deadline

Parties should also be aware of the current registration drive for unregistered customary marriages. A Government Gazette notice extended the period for registration and set 31 August 2026 as the deadline for registration of unregistered customary marriages.

Although failure to register does not necessarily make an otherwise valid customary marriage void, non-registration can cause major practical problems. In practice, an unregistered marriage may be difficult to prove and may create disputes or delays relating to inheritance, pension benefits, property rights, divorce proceedings, maintenance claims, and dealings with the Department of Home Affairs.

For that reason, spouses in unregistered customary marriages should register the marriage as soon as possible, and in any event before 31 August 2026, to reduce legal uncertainty and protect both spouses' rights.

Case law developments

Gumede v President of the Republic of South Africa (2009)

Facts: The applicant was married under customary law before 2000. Under the traditional system, her husband controlled the family property, and she had no ownership rights.

Decision: The Constitutional Court held that the provision was unconstitutional and that monogamous customary marriages entered into before 2000 must be treated in a way that protects equality and proprietary rights.

Ramuhovhi v President of the Republic of South Africa (2017)

Facts: The case involved a polygynous customary marriage entered into before 2000.

Decision: The Court confirmed that women in such marriages must enjoy equal proprietary protection.

Mayelane v Ngwenyama (2012)

Facts: A husband entered into a second customary marriage without informing the first wife.

Decision: The Court held that the consent of the first wife is required in the applicable customary-law context.

MM v MN (2013)

Facts: The husband entered into a further marriage without proper court approval of a matrimonial property contract.

Decision: The Court held that the situation created serious property uncertainty, underscoring the importance of compliance with statutory requirements.

Conclusion

The legal position has developed significantly. Post-2000 customary marriages are in community of property by default unless excluded by antenuptial contract, while pre-2000 marriages require a more careful analysis in light of customary law and constitutional case law.

Registration is also now especially important. Even where a marriage may still be legally valid without registration, failure to register before 31 August 2026 may create serious proof and enforcement difficulties in practice.

Frequently asked questions

Are all customary marriages now in community of property?

No. It depends mainly on when the marriage was concluded and whether any valid antenuptial arrangement applies.

Can spouses change their matrimonial property system?

Yes. In appropriate cases, this can be done with court approval.

What happens if a husband takes another wife without court approval?

The further marriage may create validity and property consequences, especially in relation to the matrimonial property system and the rights of existing spouses.

What happens if a customary marriage is not registered by 31 August 2026?

The marriage may still be capable of legal recognition if it was otherwise valid, but the parties may face serious difficulty proving it and enforcing rights arising from it. This can affect estates, property transfers, pensions, maintenance, and divorce proceedings.

Constructive Dismissal and Internal Procedures in South African Labour Law – Lessons from Maleka and Sally

Employees and employers alike often wrestle with the question of when a resignation becomes a “constructive dismissal” under South African labour law. This article answers four key questions: What is constructive dismissal under South African law? Must employees exhaust internal procedures before claiming constructive dismissal? What did the Constitutional Court decide in Maleka v Boyce? and how did the Labour Court apply these principles in Sally v CPES? By unpacking these recent decisions, the article explains the legal test for constructive dismissal, why the courts insist on using internal remedies, and what practical lessons both workers and businesses should draw from these cases.

Written by Roy Bregman, an admitted attorney with over 51 years’ experience in labour and employment law.

 

Key Takeaways

 

• Constructive dismissal claims will fail where employees resign without first using reasonable internal remedies such as grievance procedures or CCMA processes, unless those remedies would clearly be futile.
• The Labour Court and Constitutional Court both stress that the threshold for “intolerable” working conditions under section 186(1)(e) of the LRA is high and assessed objectively, not based on an employee’s perception.
• Recent cases involving Maleka and Sally underscore that changes to reporting lines or disagreements about accommodation, without more, seldom justify immediate resignation.
• Employers should maintain clear internal procedures and employees should exhaust them before resigning, to avoid costly and unsuccessful litigation.

Understanding Constructive Dismissal and Internal Remedies

What is constructive dismissal under South African Law?

Under section 186(1)(e) of the Labour Relations Act (LRA), a constructive dismissal occurs where an employee resigns because the employer has made continued employment intolerable. The focus is not on whether the employee was unhappy, but whether a reasonable person in the same circumstances would have found the situation so unbearable that resignation was the only option.

Courts have consistently emphasised that this test is objective and the threshold for intolerability is high. Mere unhappiness, perceived loss of status, or conflict with management will not be enough; the employee must show that the employer’s conduct was so severe that no reasonable employee could be expected to stay.

Must employees exhaust internal procedures before claiming constructive dismissal?”

The duty to use internal procedures

A further key principle is that constructive dismissal should be a remedy of last resort. Where reasonable internal procedures exist – such as a grievance process, unfair labour practice proceedings at the CCMA, or other dispute mechanisms – employees are generally required to use them before resigning.

Both the Labour Court and higher courts have indicated that, save in cases where internal remedies would be objectively futile, an employee who resigns prematurely and bypasses available procedures will struggle to prove constructive dismissal. This approach protects both the employer’s right to address issues internally and the broader statutory scheme that favours problem‑solving over litigation.

Against this backdrop, two recent cases – one from the Constitutional Court and one from the Labour Court – reinforce the importance of exhausting internal avenues before walking away.

The Maleka Case: Reporting-Line Changes and Anticipated Intolerability

What did the Constitutional Court decide in Maleka v Boyce?

Facts of the case

In Reynolds Maleka v Timothy Boyce N.O and Others (CCT 175/23) ZACC 4, Mr Maleka had been employed since 2014 as IT Director by Tyco, and was placed at ADT, Tyco’s South African subsidiary. He served on ADT’s executive committee, reporting internationally to Tyco’s global head of IT and locally to ADT’s managing director.

In late 2016, ahead of a planned acquisition of ADT by Fidelity Security Group, ADT announced the appointment of a new financial director, Mr Quinn, who would oversee the IT portfolio. Once the acquisition was completed, this would mean that Maleka would report to Quinn, someone on his own level. Maleka saw this as a demotion which threatened his authority and status and immediately expressed his opposition. He was told the decision was final.

Shortly after the Competition Commission approved the acquisition, Maleka had a brief follow‑up meeting with the managing director, who reiterated that the reporting line decision would stand. The next day, Maleka resigned and later referred a dispute to the CCMA, alleging that he had been constructively dismissed.

Decisions in the CCMA, Labour Court and Labour Appeal Court

The CCMA Commissioner rejected Maleka’s constructive dismissal claim. The Commissioner found that the change in reporting line did not affect his title, salary, responsibilities or his seat on the executive committee and was a reasonable operational response to the pending sale. Crucially, Maleka had not used ADT’s grievance procedure before resigning.

The Labour Court, applying the test of correctness to the Commissioner’s ruling, agreed. It held that without a compelling reason to bypass the grievance process, his failure to use it was fatal to the constructive dismissal claim. The Court further held that the reporting‑line change, in the absence of any change to salary or title, did not render his employment objectively intolerable; his resignation was impulsive and not a last resort.

On appeal, the Labour Appeal Court (LAC) similarly held that Maleka’s resignation was premature. The LAC noted that he could have:

• used ADT’s internal grievance procedure, and/or
• referred unfair labour practice or unfair discrimination disputes to the CCMA before resigning.

His failure to pursue these options meant that intolerability had not yet materialised; it was at most anticipated. The LAC therefore dismissed his appeal.

Constitutional Court majority: high threshold and need to explore remedies

The Constitutional Court’s majority judgment, penned by Seegobin AJ, confirmed these principles. Drawing on established authority, the Court reiterated that constructive dismissal requires proof that the employer made continued employment objectively intolerable and that the threshold for intolerability is high.

The majority held that Maleka’s dissatisfaction stemmed from the change in reporting line, not from any existing state of intolerability. His fears about future marginalisation amounted to anticipated intolerability, which is not sufficient under section 186(1)(e). The Court also stressed that an employee in his position should first explore reasonable alternative remedies before resigning. Because Maleka had not done so and could not show that internal or external remedies would have been futile, his application had no prospects of success and was dismissed.

A strong dissent would have found constructive dismissal on the particular facts, emphasising dignity and the historical context of racial inequality in corporate South Africa. However, for current purposes, the binding majority confirms a strict, remedy‑focused approach.

The Sally Case: Religious Accommodation and the Labour Court’s Approach

How did the Labour Court apply these principles in Sally v CPES?”

Facts and claim

In Sally v CPES (Pty) Ltd t/a Vivo SA (JS419/22) ZALCJHB, Mr Mohamed Sally, a practising Muslim, was employed as a spare parts manager from 7 March 2022. On 10 March, he requested religious accommodation to attend Friday prayers, including the option of unpaid leave. Before CPES could meaningfully respond or implement any solution, Sally resigned the very next day, alleging that his resignation amounted to an automatically unfair constructive dismissal based on religious discrimination.

Labour Court’s decision

The Labour Court dismissed the claim and again underlined the importance of using internal procedures and allowing the employer an opportunity to respond. The Court noted that Sally:

• had not given CPES reasonable time to consider and implement his proposed unpaid‑leave solution; and
• had not exhausted available internal remedies before resigning.

The Court cautioned that constructive dismissal should not be found where an employee fails to use reasonably available internal processes to address their grievance, unless using those processes would objectively be futile. On these facts, CPES had barely been given 24 hours to respond. The situation had not yet become objectively intolerable; instead, resignation was premature.

Conclusion: Practical Lessons for Employers and Employees

The Maleka and Sally decisions deliver a consistent message: constructive dismissal is an exceptional remedy, not a shortcut when employment relationships strain. Employees must:

• distinguish between genuine intolerability and anticipated or perceived harm.
• use internal grievance procedures and statutory remedies where reasonably available; and
• treat resignation as a last resort, only after attempts to resolve the situation have failed or would clearly be futile.

For employers, the cases highlight the value of clear internal policies, accessible grievance mechanisms, and prompt, good‑faith engagement with employees’ concerns – especially around restructurings, reporting‑line changes and religious accommodation.

FAQ

Q1: When will a South African court find that an employee was constructively dismissed?

A: Only when the employer has made continued employment objectively intolerable, and resignation was a last resort after reasonable alternatives, including internal procedures, have been tried or shown to be futile.

Q2: Do I have to use my employer’s grievance procedure before resigning?

A: In almost all cases, yes. Failing to use an available grievance process or CCMA remedies will usually be fatal to a constructive dismissal claim, unless using them would clearly be pointless.

Q3: Is a change in reporting line automatically a demotion or constructive dismissal?

A: No. Courts look at the full picture, including title, pay, responsibilities and context. A change in reporting line alone, without more, rarely makes employment intolerable.

Q4: Can refusal or delay in granting religious accommodation amount to constructive dismissal?

A: Not automatically. The employer must be given a reasonable opportunity to consider the request and explore solutions; immediate resignation without engaging internal processes will usually defeat a claim.

If you are facing changes at work, considering resignation, or dealing with an employee who alleges constructive dismissal, it is crucial to get tailored legal advice before taking the next step. Contact Bregman Moodley Attorneys for practical, strategic guidance on South African labour law, internal procedures and constructive dismissal risks.