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December 04, 2020

The transfer of immovable property after a divorce


When does one become the owner of a fixed property in terms of a divorce settlement agreement?

For example, the settlement agreement may provide that within seven days of the grant of a decree of divorce Mr Jones shall cause his half share of 123 -1st Ave, Orange Grove to be transferred to Mrs Jones.

The date of acquisition of the half share would be the date of the court order and not the date of the agreement between the parties regarding the transfer of the half share. Upon the granting of the order, Mrs Jones only acquires a personal right to compel transfer to her of Mr Jones’ half share.  This right protects her interest in the property against any subsequent claims against Mr Jones’ creditors until it is formally transferred by way of deed of transfer or endorsement into her name.

Section 16 of the Deeds Registries Act sets out how real rights (ownership) of land are transferred:

“Save as otherwise provided in this Act or in any other law the ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by the registrar, and other real rights in land may be conveyed from one person to another only by means of a deed of cession attested by a notary public and registered by the registrar…” 

Ownership in land requires an act of registration in the Deeds Office. There are exceptions to this general rule:  the acquisition of ownership through succession, prescription or of an interest in land by virtue of a marriage in community of property (e.g. if the husband owned property and subsequently married in community of property, his wife automatically becomes co-owner of that property and no act of registration is required in terms of the Deeds Registries Act).

It is also possible to amend the divorce order or settlement agreement by executing an addendum to such agreement. The courts have previously ruled that the consent of the court is not a prerequisite to amend the stipulations of the divorce order regarding the redistribution of assets. (Ex parte Boshi and Other 1979 (1) SA 249 and Ex parte Herman 1954(2) 636 (O) and Chief Registrars Circular 21 of 1990. 

In a case where settlement / addendum in relation to property is only reached after the formal court proceedings are finalised, the date of acquisition will be the date that the subsequent settlement is reached, provided that any exemption of transfer duty will only be afforded where the settlement agreement, entered into ex post facto the divorce, has been made an order of court per a recent ruling by SARS. 


Divorce mediation is an alternative dispute resolution process that Kansas couples may use to settle differences on specific issues in a divorce. Spouses may decide on their own to try mediation, or a judge can order mediation in a divorce case. Before you consider or begin mediation, you should have an understanding of how it works.

Editor: this is an American article that has significance in South Africa. Mediation in South African divorces is now compulsory.


By Sloan, Eisenbarth, Glassman, McEntire & Jarboe, LLC, KansasLaw Firm Website: https://www.sloanlawfirm.com/

Our discussion takes into account the provisions of the Kansas Family Law Code that govern mediation in domestic and family matters, as well as Rule 16.3 of the Kansas Supreme Court. The Court Rule designates mediation as the primary ADR process in Kansas litigation matters, addresses the process, and provides for Court approval of private mediators who meet certain requirements.


The statutory definition of mediation in the Kansas Family Law Code contains three important parts that explain the role of a divorce mediator. First, the law states that mediation is “the process by which a neutral mediator … assists the parties in reaching a mutually acceptable agreement as to issues of child custody, residency, visitation, parenting time, division of property or other issues.”

As the law states, a mediator is a neutral third party. While mediators often are lawyers, the mediator does not act as legal counsel for either spouse, nor does the mediator provide legal advice to the spouses during divorce mediation.

The definition goes on to state that the role of a mediator is to assist participants in “identifying the issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise and finding points of agreement.” By working with both spouses in an informal environment, the mediator helps them address their differences, establish priorities, and reach agreement when possible.

Finally, the definition section in the law states: “An agreement reached by the parties is to be based on the decisions of the parties and not the decisions of the mediator.” A mediator does not make decisions for the parties or force agreements on the spouses in a divorce mediation. Instead, the mediator explores both spouses’ viewpoints in an effort to identify areas of agreement. All points of agreement in a mediation are based on the spouses’ own decisions, not the mediator’s.


Mediation sessions occur in an informal and safe environment. Only the spouses attend the session. Even if a participant has legal counsel, the lawyer does not attend the session. Some mediation participants do have a lawyer, but not all do. The mediator will suggest to the parties that they consider consulting with an attorney, especially at the end of mediation, but legal representation in a domestic matter is a choice that each person makes.

All discussions during mediation are strictly confidential. Statements made by the spouses in mediation are protected by privilege, with a few necessary limitations, such as reporting threats of violence. Factual information given during mediation may be provided to a participant’s lawyer at the end of mediation if both parties agree to disclosure.

At the beginning of the mediation, the mediator explains the process to the participants. Discussions initially center around identifying the areas in which the participants have differences. After establishing the agenda, the mediator draws on professional skill and experience to encourage productive conversations between the participants, in which they navigate through the issues and negotiate mutually agreeable resolutions if possible.

During the process, the mediator makes certain that the participants fully consider the best interest of children and the consequences of any decision the participants reach relating to the children. The mediator may meet with children and other individuals, if the participants consent.

A mediator will end a mediation if the mediator concludes either that continuing the process will harm or prejudice a participant or affected children or that a participant’s lack of willingness to participate makes a reasonable agreement unlikely.


An agreement in divorce mediation is not binding on the participants or admissible in court unless it is put in writing, signed by both parties and their attorneys (if any), and approved by the court. At the end of mediation, the mediator provides a written summary of the understanding reached by the participants and will suggest that the participants seek legal counsel for assistance in reducing their mediation agreement to writing.


Divorce mediation can be a valuable process, but it is not necessarily the best approach for all divorcing spouses. It may work well in circumstances where spouses are amicable and have some basic agreements but also outstanding differences to resolve.

Divorce mediation can also work in high conflict situations. Mediators have specific approaches and tools to use in resolving conflict between spouses, even when emotions run high. As a neutral outside party, the mediator works to reduce conflict without taking sides by facilitating discussion between the participants. The mediator provides support for both participants equally, while encouraging participants to focus on what course of action is best for them and their family.

Mediation is a flexible and adaptable format that spouses can use as a process for resolving outstanding issues without requiring involvement of a court or judge. As an alternative dispute resolution mechanism, it can save the expense and emotional strain of a protracted battle in court. If you think mediation may work in your divorce case, you should discuss the possibility with your lawyer or with a professional mediator. 

October 24, 2020

Civil Union Act amendment

On 20 October 2020, parliament repealed section 6 of the Civil Union Act that previously permitted a marriage officer to object to solemnise a civil union between persons of the same sex on the ground of conscience.

Thiruna Naidoo of the Centre for Human Rights stated that that the amendment was a positive step toward eliminating existing differentiation between marriages and civil union partnerships, reducing discrimination against same-sex relationships and achieving equality for same-sex couples in South Africa.

There are three laws in South Africa that provide for the status of marriage in South Africa. These are the Marriage Act (Act 25 of 1961)  which provides for civil or religious opposite-sex marriages; the Recognition of Customary Marriages Act (Act 120 of 1998), which provides for the civil registration of marriages solemnised according to the traditions of indigenous groups; and the Civil Union Act (Act 17 of 2006), which provides for same-sex civil marriages, religious marriages and civil partnerships. A person may only be married under one of these laws at any given time.

The Civil Union Act legalised same-sex marriage recognising that "Marriage is the union of two persons to the exclusion of all others for life."  It thus allows two people, regardless of gender, to form either a marriage or a civil partnership.

civil union (also known as a civil partnership) is a legally recognized arrangement like marriage, that provides recognition in law for same-sex couples.

Same-sex parties wanting to get married must inform advise the marriage officer whether their civil union should be known as a marriage or a civil partnership and he or she will then solemnise the civil union as a marriage or civil union. The marriage officer then issues the parties with the registration certificate stating that they have ended into a marriage or civil partnership. The marriage officer will then submit the certificate to the Department of Home Affairs to include in the population register the particulars of the marriage or civil union.

If same-sex parties wish to enter into an antenuptial contract before they enter into a civil union, they can request the notary to reflect the proprietary consequences of their intended civil partnership (as opposed to a marriage) in the marriage contract.

October 20, 2020

Tax Deduction for Home Expenses under COVID-19

More and more employees are working from home under lockdown conditions. Some may even continue to work from home on an indefinite basis.

The Income Tax Act 58 of 1962 (the Act) allows employees to claim tax deductions for home office expenses that will typically include rent of premises, interest on bond, cost of repairs and other expenses relating to the home office, business calls, stationery, share of domestic cleaning fees, office equipment and wear-and-tear.

In terms of the Act, an employee can claim a tax deduction for home expenses if he or she works from home for at least six months of a tax year in a dedicated work area specifically equipped for work. In addition, the home office must "regularly and exclusively used" for such purposes. You won’t qualify if you work on the dining room table or meet clients in the dining room.

Most employees can’t afford to create a designated home office space. Under lockdown, this restriction is not fair especially because work from home employees will see an increase in their electricity, water, telephone and wi-fi bills.

Under lockdown and perhaps even thereafter the state should amend the strict requirements and allow tax deductions to employees that work from home even if they do not have a designated office space. This would be both an additional COVID-19 relief measure and would promote the principles of fairness and equality.


October 09, 2020

Can a bank sell a repossessed vehicle for a ridiculous amount?


FirstRand Bank Limited t/a Wesbank v Davel (1229/2018) [2019] ZASCA 168 (29 November 2019). 

FirstRand Bank Limited t/a Wesbank (Wesbank), concluded a written instalment sale agreement with Davel, in terms of which he purchased a 2010 Volkswagen Polo, payable over 59 months with a balloon payment in the 60th month. Davel fell behind on the payment of his instalments. 

Wesbank sent him a notice in terms of s 129(1)(a) of the National Credit Act 34 of 2005 drawing his attention to the options available to him in terms of the Act, but also stating that, in the event of him not choosing any of them, legal action would be instituted against him claiming, inter alia, cancellation of the agreement and return of the vehicle. Mr Davel did not respond to the notice, prompting Wesbank to issue summons claiming the relief it had threatened. This was followed by an application for summary judgment by Wesbank, in terms of which it claimed, inter alia, the cancellation of the agreement, the return of the motor vehicle and that the entire damages component of its claim be postponed sine die. It also sought forfeiture of all monies paid by Mr Davel. 

The court had to decide what relief to grant. It had to balance the interests of the credit provider (Wesbank) and the credit receiver (Davel). the Credit Act provides protection for consumers and for the enforcement of the rights of credit providers - an "equality of arms". 

The court was concerned that there was a tendency to recover vehicles and then sell them at a ridiculous price. It ordered Wesbank (the plaintiff) to give Davel (the defendant) notice: 

a)    setting out the estimated value of the vehicle;

b)    informing the defendant that it intends to sell the returned vehicle as soon as practicable for the best price reasonably obtainable; and

c)    informing the defendant that the price obtained for the returned vehicle upon its sale may be higher or lower than the estimated value; 

Thereafter, the plaintiff had to sell the returned vehicle as soon as practicable for the best price reasonably obtainable. After selling the returned vehicle, the plaintiff was required to: 

a)    credit or debit the defendant with a payment or charge equivalent to the proceeds of the sale less any expenses reasonably incurred by the plaintiff in connection with the sale of the goods; and 

b)    give the defendant a written notice stating the following: 

                      i.        the settlement value of the agreement immediately before the sale;

                     ii.        the gross amount realised on the sale;

                    iii.        the net proceeds of the sale after deducting the plaintiff’s permitted default charges, if applicable, and reasonable costs allowed under paragraph (a); and

                    iv.        the amount credited or debited to the defendant’s account. 

The notice had to state that: 

a)    If the defendant disputes the amount of the proceeds of the sale or any other charges or expenses incurred, he or she may engage directly with the credit provider in relation thereto. 

b)    If the engagement referred to in (a) does not yield, from the defendant’s perspective, the desired result, he or she may, refer the dispute to the Tribunal or submit a complaint in terms of s 136 of Credit Act 34 of 2005 to the National Credit Regulator. 

If an amount falls to be credited to the defendant’s account which exceeds the settlement value immediately before the sale of the returned vehicle, the plaintiff must remit such excess amount to the defendant. 

If an amount is credited to the defendant’s account which is less than the settlement value before the sale, or an amount is debited to the defendant’s account, the plaintiff may demand payment from the defendant of the remaining settlement value. If the defendant fails to pay the amount demanded within 10 business days of receiving such demand, the plaintiff may commence proceedings against the defendant for any outstanding damages.


September 28, 2020


In Van Meyeren v Cloete (636/2019) [2020] ZASCA 100 (11 September 2020) the Supreme Court of Appeal (SCA) had to consider the rights and responsibilities of dog owners in South Africa. 

In this case, a gardener and refuse collector (Cloete) was attacked without any warning or reason by three dogs on a Cape Town street. His injuries were serious and resulted in the loss of his left arm from the shoulder. He said that he did not do anything to provoke the dogs and was minding his business and was lawfully present on the public road where the attack took place. He subsequently instituted a claim for R2.4 million for damages. 

The owners of the dogs were not home at the time of the attack and denied liability. The basis for this defence was that the dogs had been locked inside the property, but an intruder must have tried to gain access through a locked gate, broken both padlocks fastening it and either left the gate open or in a state where the dogs could open it.

SCA ruling

Cloete’s claim was based on the legal principle of ‘actio de pauperie’ – which holds that the owner of a domesticated animal is ordinarily held strictly liable for harm caused by that animal. This means that an injured party does not have to prove negligence on his or her part and a victim of a dog bite can claim damages from a dog owner without having to prove fault. 

In its ruling, the SCA said that there are three recognised defences to such a claim:

·         That the injured party was in a place where they had no right to be.

·         The animal was provoked either by the injured party or a third party.

·         That custody and control of the animal has passed to a third party who negligently failed to prevent the animal from causing the harm.

·         The owner’s argument that these defences should be extended to include any situation where the harm was caused by negligence on the part of any third party was rejected by the court. The court thus found the suggestion that a third party allowed the dogs to escape the property was not a defence.

·         It held that constitutional norms did not justify such an extension and that where harm is caused by a domesticated animal, it is in principle appropriate that responsibility for that harm rests with the owner of the animal and not the injured party.

The judge stated that “If anything, with the growth of urban living, the vastly increased number of pet animals, especially dogs, in our towns and cities and the opportunities for harm that they pose, that view of where the interests of justice lie has been strengthened,” and  that “People are entitled to walk our streets without having to fear being attacked by dogs and, where such attacks occur, they should in most circumstances be able to look to the owner of the dog for recompense.”

The SCA subsequently dismissed the appeal by the dog owner and found that he was liable to compensate the victim for injuries. You can read the full ruling in the attachment.


July 22, 2020

Employment rights under lockdown

What happens if a business is forced to close because of Covid-19 and it becomes impossible for an employer and employee to perform under an employment contract? The law states that if both employer and employee are unable to do so, then the obligations of both parties are suspended, until the lockdown ends, and it becomes possible for work to continue.


Before Covid-19, South African employment law and labour courts generally found that the employer had to pay an employee a salary even when the employee did not render services, e.g. in war conditions, where the free movement of employees was restricted.


Now, under the current government-imposed lock-down and limitation of economic activity, employees are restricted from movement unless working in enterprises which are recognised as essential or providing permitted services.


If the employer is not such an enterprise, the employee is placed on temporary lay-off, or unpaid leave. To assist vulnerable workers, who are subject to a temporary lay-off, resulting from the lockdown, the South African government has made R500 billion available, through schemes such as the Temporary Employee Relief Scheme, administered by the Unemployment Insurance Fund.


If an employer is obliged to trim its workforce because it has become impossible to operate, if it seeks to dismiss any employee, it must still ensure that any dismissal is fair and must follow due process laid down by our employment laws.


July 15, 2020

Does the estate of a deceased grandparent have an obligation to support a grandchild?


Phillipa Susan van Zyl NO v Getz (548/19) [2020] ZASCA 84 

The mother of a child asked the Supreme Court of Appeal (SCA) for a ruling obliging the estate of a grandparent of her child to maintain the child. 

Both parents were alive. The mother could not afford to maintain the child and the father had moved to the United States. No serious steps were taken to find him and establish his financial means. 

Two common law rules govern the legal duty of support of grandchildren by grandparents. The first basic rule provides that where a grandchild is in need of support, his or her grandparent will have a legal duty to maintain him or her, only if both parents are unable to support the child and the grandparent is able to provide support. The rule is not clear where the parents or one of them is able but unwilling to support the grandchild, or cannot be found. The second rule as set out in Barnard NO v Miller 1963 (4) SA 426 (C) is that a legal duty to support a grandchild is not enforceable against a grandparent’s deceased estate. 

The court was asked to develop the common law to recognise a duty of support on the part of a grandparent’s deceased estate. 

The current legal position regarding the duty of support 

At law, liability to maintain is based on three factors: firstly, the claimant’s inability to support himself or herself; secondly, his or her relationship to the person from whom he or she claims support; and thirdly, the latter’s ability to provide support. 

The common law and Section 18(2) of the Children’s Act 38 of 2005 recognise that parents are the primary caregivers of their children by imposing on them a duty of support insofar as they can do so. There is a reciprocal duty of support between parents and children. If parents are unable to support their children who need support, other relatives including grandparents, may be obliged to support them. But that duty is imposed first upon a nearer relative before it moves to remoter ones. 

The liability of the grandparent’s deceased estate for the support of the grandchildren is not clear, so the SCA was asked to develop the common law but it declined to do so. It found that on a factual level, the mother’s case was deficient. The appellant sought on the stated facts to impose a duty to support a grandchild on a grandparent’s deceased estate where the parent of a child cannot be traced. But the mother did not take reasonable steps to locate the whereabouts of the father after he left South Africa to live in the United States or that she had exhausted all reasonable options open to her to find him. 

The child’s father, who is primarily responsible for the child’s maintenance, may be able to financially support the child. This would render it unnecessary to develop the common-law rule. Financial inability by a person from whom maintenance is sought must be established before that obligation is assumed by, or transferred to, another person. 

The court’s finding 

The court found that if it recognised the claim against a deceased grandparent’s estate – as a general principal – this had the potential to compete with the heirs of a deceased grandparent. It could also compete with other claims for maintenance that may arise, including by a surviving spouse or child. 

The court concluded that “due to the insufficiency of the evidence upon which to develop the common-law rule enunciated in Barnard and the wider consequences the proposed change will have on the rules of the law of succession, it would be inappropriate for this Court to develop the common law. The development sought by the appellant is quite drastic and may implicate various constitutional values. Parliament is the forum best suited to undertake such development if it is considered appropriate”.          


July 12, 2020

Videoconferencing during lockdown

Our courts have held that under lockdown conditions it is practical and indeed desirable that consultations between employers, employees and trade unions can take place via platforms like Zoom and Skype, as long as consulting parties have the necessary tools to meaningfully participate in this manner.

In the recent Labour Court matter of Food and Allied Workers Union (“FAWU”) v South African Breweries and another, South African Breweries (“SAB”) contemplated large-scale retrenchments, and issued a notice in terms of section 189(3) of the Labour Relations Act, 1995 (“LRA”) commencing consultations.

Because of the Coronavirus (COVID-19) and to adhere to the health protocols imposed by the State, SAB proposed that consultations continue via the videoconferencing application, Zoom. FAWU adopted the position that it could not consult via Zoom and that the consultations could only resume once the national lockdown had been uplifted.

SAB nevertheless continued consultations with the remaining consulting parties, and FAWU did not attend these e-consultations. FAWU then launched an application in terms of section 189A (13) of the LRA, seeking an order, inter alia, that in continuing consultation via Zoom, SAB had acted in a procedurally unfair manner.

Moshoana J held that the LRA does not prescribe the form in which consultations must take place. The LRA even allows for consultation to occur exclusively via correspondence. The court noted that that the COVID-19 pandemic meant that a new normal had to be adopted. The issue of contention was that consultations were normally held in the form of physical meetings and whether the absence of following that specific format rendered the consultations procedurally unfair.

The court held that in the present circumstances, applications such as Zoom must be used to ensure that health and safety of individuals are maintained. The irony that the urgent application launched by FAWU was heard by the Labour Court via Zoom was not lost on the court. The use of Zoom or similar applications for the purposes of consultations in terms of section 189 does not render the consultation process procedurally unfair.

Insofar as FAWU had refused to participate in the consultations via videoconferencing facilities, the Labour Court reiterated the principles that were articulated by the Labour Appeal Court in the matter of SAA v Bogopa and others: In circumstances where a trade union abandons the process due to no fault of the employer, the dismissal cannot be said to be procedurally unfair if the employee is subsequently dismissed without the consultation process having been completed.

Considering the above, the court dismissed FAWU’s application.


The Protection of Personal Information Act has finally arrived

The Protection of Personal Information Act, 2013 (the “POPIA”) became effective on 1 July except for certain provisions that only come into force on 30 June 2021 that allow for operational readiness of the Information Regulator who polices compliance.

There will be a one-year grace period within which to comply with POPIA and the Regulations enacted thereunder. Private and public bodies should ensure compliance by 1 July 2021.

POPIA reinforces a South African’s (called a ‘data subject’s’) constitutional right to privacy in both the public and private sectors by setting eight conditions for lawful processing of data. These conditions are: (1) accountability, (2) processing limitation, (3) purpose specification, (4) further processing limitation, (5) information quality, (6) openness, (7) security safeguards, and (8) data subject participation.

The act is not designed to prevent the processing of personal information but seeks to ensure that it is done fairly and without adversely affecting the rights of data subjects.

POPIA applies to the processing of personal information of a data subject entered in a record by a ‘responsible party’. He or she is the principal processor of personal data, who determines the purpose and means of processing. S/he processes the information in South Africa and is domiciled in South Africa or is domiciled elsewhere but uses automated or non-automated means in South Africa to process the personal information.

The POPIA defines “personal information,” as generally meaning information relating to an identifiable, living natural person and, where applicable, an identifiable company or other similar legal entity. The definition includes information relating to partnerships and unincorporated persons and provides a significantly detailed list of examples of personal information. These examples range from private correspondence and information about age, gender, sex and race to identifiers such as identity numbers, telephone numbers, location information, online identifiers, and personal opinions and preferences.

The responsible party processing personal information must comply with all eight conditions and the measures necessary to give effect to those conditions. Compliance must be achieved not only when the actual processing of information takes place, but also when determining the purpose and means of processing the personal information.

  1. Accountability: This condition requires that all processing of data occurs in compliance with POPIA. Practically, this requires that a data protection policy is established and that an internal information officer furthers the aims of and compliance with the legislation.
  2. Processing limitation: Personal data must be processed lawfully and in a reasonable manner that does not infringe on a data subject’s privacy. A responsible party must develop procedures and policies to ensure that personal information is processed in a “reasonable manner.”
  3. Purpose specification: Among other things, this entails that personal information may only be collected for a lawful, specific, and explicitly defined purpose related to the function or activity of the responsible party collecting the information. Data subjects must be informed of the purpose of the collection, except in exceptional circumstances, such as when the responsible party is required to comply with an obligation imposed by law.
  4. Further processing limitation: Once personal information has been collected and lawful processing has occurred, a responsible party may only further process that data in limited circumstances. These limited circumstances are determined based on whether the purpose of the further processing is “compatible” with the previously defined purpose.
  5. Information quality: A responsible party must ensure that any personal information in its possession is complete, accurate, not misleading and updated when necessary. In maintaining information quality, the responsible party must consider the purpose for which the personal information is collected or further processed.
  6. Openness: A responsible party must compile a manual that contains stipulated information as required by the South African Promotion of Access to Information Act, 2000, including details on the information that it holds. When personal information is collected, the responsible party must take reasonably practicable steps to ensure that the data subject is aware of: (1) the information being collected and the source of the information; (2) the name and address of the responsible party; (3) the purpose for which the information is being collected; (4) whether the data subject is required to provide the requested information, or may do so voluntarily; (5) the consequences of failing to provide the information; (6) the legal basis for the collection of the information; (7) whether the responsible party intends to transfer the information to a third country and the level of protection afforded to the transferred information; and (8) any further information necessary for the processing to be reasonable under the circumstances.
  7. Security safeguards: A responsible party must secure the integrity and confidentiality of any personal information in its possession or under its control by taking appropriate and reasonable technical and organizational measures to prevent loss, damage, unauthorized destruction of, and unlawful access to the personal information in its possession.
  8. Data subject participation:
    1. The data subject has the right to request confirmation of whether a responsible party holds personal information about the data subject. The data subject also has the right to request a record or description of the personal information about the data subject being held by the responsible party, as well as information concerning the identity of all third parties who have had access to the data subject’s personal information.
    2. The data subject may request that a responsible party:
      1. correct or delete personal information about the data subject that is inaccurate, irrelevant, excessive, out of date, incomplete, misleading or unlawfully obtained; and
      2. delete or destroy personal information that the responsible party is no longer authorized to retain.