Co-owing your house

 

A client asked what she should do about a house she and her life partner bought together. There is a bond over the property, and they are separating.

They own the property 50-50 and are jointly liable to the mortgagee. The rationale for buying the property in the first place in their joint names was to share the burden of bond repayments and maintenance costs.

We advised her to agree in writing with her partner to record their respective rights and obligations on what will happen with the property when they separate. 

In an ideal world, couples should enter into a co-ownership agreement before they buy the property, recording such things as: 

• Their ownership proportions (if not 50-50)
• How much will each contribute to the bond and property maintenance (if not equally)
• What will happen if the parties go their separate ways (will they sell, or will one party stay in the property and buy the other one out)
• What happens if one party dies or becomes unable to keep up their payments to the partnership expenses

 

 

Noise nuisance and religion

 

When does the Islamic ‘Call to Prayer’ constitute a noise nuisance?

 

The SCA in Madrasah Taleemuddeen Islamic Institute v Ellaurie [2022] ZASCA 160 at [11]-[19] heard that Ellaurie lived about 200 metres from the Madrasah in Isipingo Beach, where there is a mosque. The KZN Court found that the five daily Azaan calls, delivered by a Muadhin, reminding people of the Islamic faith to pray, invaded Ellaurie’s personal space and ordered that the Azaan should not be audible within the buildings on Mr Ellaurie’s property. 

The SCA disagreed with this finding and set aside the order. 

Its rationale was that limited interference with property rights and enjoyment by owners of other properties in the same neighbourhood is expected and acceptable in law. Mutual tolerance is a civic value restricted by the legal yardstick of reasonableness. Mr Ellaurie placed himself within the realm of a unique or extraordinarily sensitive complainant. The reasonableness of the Azaan could not be judged by his standards, the essence of which was a deep aversion to the Islamic faith. It had to be judged by the standard of an ordinary person living in Isipingo Beach. 

The SCA emphasised that the Constitution provides protection for different religious beliefs and affiliations and guarantees the freedom to observe and manifest different religious beliefs. In this case, the reasonableness assessment had to consider and balance the countervailing constitutional rights. There was no room for these considerations in Mr Ellaurie’s convictions. His motivation for pursuing litigation was not the advancement of constitutional justice but rather his dislike of Islam.

 

When can a settlement agreement be made a court order?

A party's marriage was shaky, and the husband asked us if they could enter into an agreement recording their marriage's proprietary and other consequences should it end in divorce. The husband wanted to know if a court could make the arrangement a court order.

We pointed out that they would have to apply to court in terms of section 21 of the Matrimonial Property Act to vary their matrimonial property regime. We advised them that they could not simply enter into an agreement and have it made an order of court.

In the case of Capital Profound v Guilt Food [2022] ZAMPMBHC 78 at [19]-[26, Capital Profound asked the court to make an agreement it reached with Guilt Food a court order. The court found that before it can make an agreement a court order, one party ought to have sued the other. It was only appropriate to do so if the litigation had commenced.

In Eke v Parsons, the Constitutional Court held that where litigation had not yet commenced, a settlement agreement may not be made an order of court. There must be not only a dispute between the parties that led to the settlement agreement, but the issue or lis concerned must be properly before the court.

 

The legal effect of marriages between foreign same-sex couples that marry in South Africa

 

A person’s domicile is the country where they live or intend to live permanently.

Our robust Constitution has long since recognised same-sex marriages in South Africa. This encourages foreign same-sex couples to travel here to get married.

Where same-sex foreigners marry in South Africa, in terms of the Marriage Act or the Civil Union Act, the marriage is legally valid in almost every country. The law of the land where the husband lives bind the couple.

However, the mere conclusion of a civil union by foreigners in South Africa does not result in a valid marriage.

The foreign couple should register their marriage with the South African Department of Home Affairs and apply for an unabridged marriage certificate, which is stamped ‘Apostille’ by the High Court. The foreign couple uses this to register the marriage in the husband’s country of domicile. Only then will marriage be valid. Some countries – like the United Kingdom and Ireland – recognise South African marriages without an apostille.

 

 

What is the effect of a marriage contract when an African couple marry traditionally and then has a civil ceremony?

In South Africa, African couples often have a dual marriage – they have a customary wedding ceremony followed later by a white wedding in front of a marriage officer. It is a  marriage celebrated in terms of customary law and registered as a civil marriage.

Couples approach me before their civil marriage to help them with an antenuptial contract (ANC). As it may be too late to conclude an ANC, I always ask them if they are not already married. The typical response is that they are not married as they have not yet registered at Home Affairs.

The Recognition of Customary Marriages Act 120 of 1998 allows for monogamous dual marriages. Typically, an African couple begins by negotiating and delivering ilobolo. They will not be formally married until they conclude the final traditional ceremony of their particular culture. For example, after a culmination of various events, the family integrates the bride into her new family. If all the customary formalities are complied with, the parties are then married. Registration at Home Affairs is not a requirement to validate the marriage.

 

In South Africa, the default matrimonial property regime is one in community of property. If a couple wants to be married out of community of property, they must conclude the ANC before they get married.

 

If a couple marries according to custom, they can certainly perform a later civil marriage, but any ANC concluded after the customary marriage would be invalid.

 

In that case, the couple must approach the High Court for an order allowing them to change the matrimonial property system applicable to their marriage. S 21 of the Matrimonial Property Act 88 of 1984 sets out the requirements. They must satisfy the court that there are sound reasons for the proposed change and that the alteration will prejudice no one.

Marriages in community of property

 

Community of property is the primary and default matrimonial property system of South Africa.

If parties prefer to be married out of community of property, they must enter into an antenuptial contract before marriage. The Matrimonial Property Act 88 of 1984 (the Act) provides that the marriage will be subject to the accrual system unless the parties expressly exclude this system.

What is community of property?

When spouses marry in community of property, their separate estates merge into a single joint estate for the duration of the marriage. The spouses share everything – all their assets and all their debts. 

Assets 

The spouses become co-owners in undivided and indivisible half-shares of all the assets they respectively bring into the marriage and acquire during the marriage. 

Examples of assets that will not become joint assets: 

·         Testamentary bequests (inheritances) or donations made by a third party to a spouse subject to the express condition that the asset(s) are excluded from the joint estate of the spouses 

·         Property in which a spouse holds a limited or inalienable interest, such as a usufruct or a fideicommissum 

·         Engagement or wedding presents from a husband to his wife 

·         Delictual damages from third parties for non-patrimonial loss as provided for by section 18(a) of the Act (e.g., If one party is injured in an accident and received compensation from the Road Accident Fund) 

·         Delictual damages for personal injury inflicted by the other spouse as provided for by section 18(b) of the Act 

Liabilities 

Upon marriage, all spouses' debts, including their existing debts, become part of the joint estate. 

If the joint estate owes a creditor, it may sue the spouse who incurred the debt or sue both spouses jointly and severally (the spouses are joint debtors for the joint debts). Creditors of the spouses can look to the joint estate and the separate property of both spouses for recovery of a joint debt. 

Consent required

The spouses may have equal independent powers to control or manage the joint estate and incur debts that bind the joint estate. However, they have to obtain each other's consent for certain essential transactions, such as:

·         the alienation or burdening of immovable property

·         entering into a suretyship

·         purchasing a house

·         receiving credit under a credit agreement

·         selling shares or other assets held mainly as investments

·         withdrawing money from each other's bank accounts

·         instituting or defending legal proceedings and selling furniture or other household effects.

No consent needed

No consent is necessary for a spouse's transaction in the ordinary course of their profession, trade, or business. For instance, they could conclude a contract to alienate immovable property, receive credit, alienate shares, purchase land, bind Themselves as surety and institute or defend legal proceedings without spousal consent.

The effect of lack of consent 

Section 15(9) of the Act protects bona fide third parties who transact with a spouse without knowing that the necessary consent has not been obtained by deeming the transaction valid and concluded with the permission needed.

Section 16(2) of the Act provides that the court may suspend any power of the other spouse on the application of the prejudiced spouse in respect of the joint estate for a definite or indefinite period. The court must be satisfied that the order is necessary for the protection of the prejudiced spouse's interests in the joint estate. A more drastic remedy that would also be available to a prejudiced spouse is an application for the immediate division of the joint estate in section 20 of the Act.

What happens when the marriage ends in divorce? 

When a divorce ends a civil marriage or a civil union in community of property, the balance of the joint estate must be divided equally between the spouses after all liabilities are paid. 

In the case of customary marriages, the joint estate need not necessarily be divided equally between the parties. In terms of the decision of the Constitutional Court in Gumede v President of Republic of South Africa the court may redistribute assets equitably under section 8(4)(a) of the Recognition of Customary Marriages Act 120 of 1998.   

Section 7(1) of the Divorce Act 70 of 1979 provides that the parties may agree on the division of the joint estate in any way that suits them. In such a case, a signed settlement agreement will be part of the divorce order. 

Where the parties cannot agree on how to divide the joint estate, the divorce summons may ask for the appointment of a receiver or liquidator to make that decision.  The parties can also approach the court to appoint a receiver or liquidator, after the divorce.

 

 

Marriages out of community of property subject to the accrual system

 

 

 

These principles apply to a marriage out of community of property with accrual: 

1)    Both spouses have separate estates when they get married and don't share profits or losses during the marriage. They are basically in the same position as spouses who marry out of community of property with complete separation of property.

2)    Each spouse retains the estate they had before the marriage, and everything a spouse acquires during the subsistence of the marriage falls into their estate. Each spouse controls their estate. 

3)    The spouses are not liable for each other's debts except for being jointly and severally liable to third parties for debts incurred by either in respect of household necessities. 

4)    Accrual sharing occurs only at the dissolution of the marriage (on death or divorce) when the spouses (or their estates) benefit equally from the gains or profits made during the marriage. The accrual system is a type of postponed community of profit or a deferred community of gains. 

5)    Section 8(1) of the Matrimonial Property Act (the Act) protects a spouse whose rights are seriously prejudiced by the other spouse's conduct. In that case, a court may order the immediate division of the accrual on such basis as the court deems just. 

6)    In terms of section 4(1)(a) of the Act, the accrual in a spouse's estate must be determined by first deducting the net value of the spouse's estate at the commencement of the marriage (the net initial value) from the net value of their estates upon the dissolution of the marriage (the net end value). In terms of section 6(1) of the Act, a spouse may declare the net initial value of his or her estate in the antenuptial contract or in a separate statement either before or within six months of the wedding. If the net initial value was not so declared or a spouse's liabilities exceeded his or her assets at the commencement of the marriage, their net initial value is deemed nil. 

7)    Secondly, to determine the accrual in a spouse's estate, the value of certain excluded assets as listed in sections 4 and 5 of the Act must also be deducted from the net end value of the spouse's estate. Such excluded assets comprise the following: 

a)   Any non-patrimonial damages a spouse receives during the marriage 

b)   Assets specifically excluded from the antenuptial contract accrual and any inheritance, legacy, or donation that a spouse receives during the marriage. The Act provides that the proceeds of such assets and assets which replace such assets are also excluded

c)   Donations inter vivos between the spouses. 

Accrual sharing upon dissolution through divorce

Section 3(1) of the Act provides that the party whose estate shows the smaller accrual or no accrual upon divorce may claim from the other spouse an amount equal to half the difference between the accrual in the parties' respective estates. 

The accrual system only gives rise to a monetary claim and does not give the spouses rights concerning each other's property. 

A party's contingent right to share in the accrual of the other party's estate becomes perfected on the date of divorce.

Breach of contract

 

Legal Contracts

 

As much as people may become nervous about contracts, they must bear in mind that contracts are there to protect all the parties involved. Where parties are unable to agree on an aspect of a contract at any time, having the agreement reduced to writing, with all its relevant clauses, is very beneficial for both parties.

 

One essential clause in a contract deals with breaches of the agreement. A breach clause will set out all the consequences for the various types of breaches and gives both parties guidance and prescripts.

 

Bregman Moodley Incorporated specializes in legal contracts and business law and is on standby to assist you in resolving your disputes.

 

Types of Breach of Contract

 

Breach of contract can occur in several ways.

 

Mora debitoris is a situation where the debtor creates a breach of contract. The breach arises when the debtor delays performance and the cause is the debtor's fault.

 

Mora creditoris is when there has been a breach of contract on the creditor's part, where his delay has caused the violation and delays the debtor's performance. 

 

Positive malperformance is a breach where the debtor commits an act contrary to the terms of the agreement. It will occur that either the debtor provides improper or defective performance or performs in a way not specified in the contract.

 

Repudiation occurs when a party indicates to the other that they no longer intend to fulfil the contract. The party will typically try to withdraw from the agreement without justification. Repudiation can take place wholly or in part.

 

Prevention of performance is the final type of contract breach found in South African Law. In this instance, either the creditor culpably renders the debtor's performance impossible, or the debtor does so himself. 

 

Should you be experiencing any instances where there may be a breach of contract, be sure to contact Bregman Moodley Attorneys today for expert advice and assistance in legal contracts and business law.

The Construction of a Contract

 

A contract is an enforceable agreement where willing parties with capacity agree to specific terms in exchange for something. It contains a promise to do or give something in return for a valuable benefit, known as consideration.

 

Bregman MoodleyIncorporated specialises in all aspects of legal contracts and business law. For swift and professional assistance, be sure to contact them today.

 

The Enforceability of a Contract

 

For a contract to be valid and enforceable in law, it must comply with specific requirements.

 

Consensus between the parties is an essential requirement for establishing an enforceable contract. The parties' minds must be at one or have the same intention when entering the contract. The parties must also agree on the deal's consequences.

 

The parties must also have the necessary capacity to enter into a contract. This capacity also relates to the age or mental capacity of the relevant party. This party must be able to appreciate the consequences of entering into the contract. 

 

The contract must also be set out in definite terms, ensuring all aspects are understood. The agreement must be specific and clear.

 

All formalities must be adhered to concerning the conclusion of a particular contract. These will typically be legal formalities that affect the validity of the agreement.

 

The agreement must also be lawful to be enforceable and valid. One cannot enforce an illegal contract.

 

The performance set out in the contract must also be possible for the contract to be valid.

 

Different contracts will also require their formalities. Some contracts must be in writing, such as those agreements that relate to the disposition of immovable property. 

 

If you doubt the enforceability of your contract or may need to rely on any of these grounds relating to legal contracts and business law, contact Bregman Moodley Incorporated today for professional advice and assistance.

 

What's in a surname?

 

Change of surname on marriage 

A usual consequence of marriage is that the wife adopts the husband's surname, together with the designation "Mrs". She could also change her surname to a double-barrel surname. 

Legally, however, she is not obliged to use her husband's surname and may use either her maiden name or any other surname she bore before her marriage. Professional women often keep their maiden names. 

Change of man's surname 

On good cause shown, Home Affairs may authorise a man to change his surname. He must apply on the prescribed form, and the name change is placed in the gazette if approved. 

The husband is not permitted to take his wife's name except after application to the Director-General.

Change of surname on divorce or death 

On divorce or becoming a widow, a woman may revert to her maiden surname, retain her married name or revert to any name she bore at any prior time. 

The law affecting surnames 

The Births and Deaths Registration Act 51 of 1992 and The Children's Act 38 of 2005 govern the surname a child assumes at birth and when a woman or man may change his or her surname.

Section 13(3) of the Civil Union Act, 17 of 2006, stipulates that references to a 'husband, wife or spouse' must also apply to same-sex civil union partners.

The surname of a child at birth 

A legitimate child  

They take the surname of the father. 

A child born out of wedlock

 

• The child takes the surname of the mother. However, the child can assume the natural father's surname if both parents apply jointly to enter the father's surname in the birth register and the father acknowledges his paternity in writing.

 

• If parents marry any time after the child's birth, the law considers the child born of parents married at the time of their birth.

 A child born of voidable marriage

 

• The rights of a child born of a voidable marriage shall not be affected by the annulment of that marriage. A court cannot annul a voidable marriage until it has inquired into and considered safeguarding the rights and interests of a child of that marriage.

 

• If a court annuls a marriage involving a child, the law puts the father in the same position as the father of a child who divorced that child's mother.

Conflict between an ANC and contract providing for lifelong maintenance

 

In a recent Supreme Court of Appeal (SCA) case, the court had to decide if an agreement concluded between the parties conflicted with their antenuptial contract (ANC). 

The ANC declared their marriage to be out of community of property with the exclusion of the accrual system. After the registration of the ANC and before the solemnization of their marriage, the parties concluded a written agreement. It provided that on the dissolution of the marriage by the death of the husband, or their divorce, the husband undertook to donate to the wife an immovable property and a car and to pay her medical aid premiums and lifelong maintenance. 

The marriage soured and the wife sued for divorce. The husband argued that the agreement was unenforceable as it contradicted the ANC. 

On appeal, the SCA agreed with the wife’s contention that “there is no conflict between the terms of the ANC and the agreement; they co-exist and remain valid and enforceable as two distinct and separate legal instruments, each serving a different purpose which do not impinge upon each other”. 

The court stated that “The primary objective of the ANC is not to create obligations, but to determine the matrimonial property system between spouses by excluding or varying the normal patrimonial consequences of marriage”. On that basis, it upheld the wife’s claim stating that the agreement did not purport to vary the ANC both could co-exist “because an ANC regulates the matrimonial regime of the parties stante matrimonio only, whereas the agreement has no bearing at all on the nature of their matrimonial regime and the respective estates of the parties. Their estates remain separate. Thus, the provisions of the ANC will remain intact and will be applicable upon their divorce despite the appellant’s entitlement to enforce the terms of the agreement”.

Actio Communi Dividundo and the “Clean Break” Principle

 

Written by Sasha Kadish

A client and his girlfriend bought a house together. Their relationship soured, and they reached an impasse. Each wanted to stay in the place, and neither would compromise. What must the client do as he is not obliged to remain a co-owner against his will?

If he and his girlfriend can’t agree, he may demand the division of the jointly owned property at any time and terminate the joint ownership. As a last resort, he may apply to the Court in terms of the actio communi dividundo. He must prove that:

(a) they are a co-owner of a property;

(b) they wish to terminate the co-ownership; and

(c) the parties cannot agree on the method of division of the property.

In a recent case, an unmarried couple who were involved romantically purchased a house together and co-signed on a bond.

The relationship between the parties ended. The Applicant moved out of the jointly owned property and rented a place of his own. The respondent continued to live in the jointly owned house and conduct her business, a nursery school, within the grounds of the property.

The Court has broad discretion to effect an equitable division of jointly owned property. Where a division is not practical, the Court can award the property to one joint owner because they must compensate the other joint owner for their share in the property. Where division methods seem impractical, the Court may order the property to be sold by public auction and share the proceeds among the joint owners. The Court can also appoint a receiver and liquidator to attend to the liquidation and distribution of the property.

In the abovementioned case, the respondent claimed that she would suffer significant economic and financial prejudice should she be forced to dispose of her half share in the property on which she ran her business. She stated such prejudicial circumstances as relocation costs of her business, possible rental increases, and the possibility of closing the business should she be unable to find suitable alternative accommodation. However, the Court held that this was not a defence to a claim for the termination of joint ownership. If anything, they would be circumstances for the Court to consider when determining the mode of division of the common property.

Importantly, it was held, in circumstances where the respondent cannot afford to take over the ownership of the property in its entirety, in other words, buy out the Applicant’s half share in the property, such circumstances cannot be considered relevant.

The judge held the following:

“The Respondent’s circumstances cannot serve as a tool to shackle the Applicant to the joint property in perpetuity. The romantic relationship was the glue that held the parties together. With its end, the parties ceased living together. It is that the parties ought to make a clean break with their past”.

Thus, no one can be forced to perpetually co-own a property that they wish to no longer co-own. In such circumstances, a co-owner of a property has every right to bring an application for an actio communi dividundo, where co-owners cannot settle.

 

When can an employer dismiss an employee on the grounds of age?

 

 

Dismissal on the grounds of age is automatically unfair unless the employee “has reached the normal or agreed retirement age for persons employed in that capacity” (section 187(2)(b) of the Labour Relations Act, 1995). 

If the parties agree upon the retirement age in the employment contract, the employer may require the employee to retire when they reach that age. Of course, the employer may decide to extend the duration of employment. 

If an employee reaches retirement age but continues to work beyond that age, there is no legal certainty regarding the rights of an employee who works beyond that age. It is thus advisable for the employer and employee to clearly define the terms of employment after the retirement age, for example, how long the employee will continue to work and what notice is required to terminate the employment. Employers should be careful to amend the employment contract to stipulate the extended retirement date. Ideally, the employee should agree to the variation in writing. 

If the employment contract does not stipulate a retirement age, then the employer cannot simply fix the age for retirement for existing employees. Trying to do so would be a unilateral change to terms and conditions of employment, which would have no legal effect. 

If there is no mention of retirement age in the contract and there is no organisational norm, employees can continue to work until they cannot perform their normal duties. The employer can only terminate employment following labour legislation (that is, for misconduct, operational requirements or incompetence) and must follow the procedures set out in the contract and labour law. The courts have found that it is unfair for an employer to terminate employment just because of age. 

To avoid any uncertainty, it is vital that the employment contract specifies a retirement age or that the agreement refers to a policy or retirement fund rules that clearly state the normal retirement age.

 

 

 

What are the inheritance rights of a child, conceived after the death of a father, from frozen gametes?

 

The nasciturus fiction is the principle where our common law considers a child born alive and conceived before a testator's death to have obtained rights to inherit, from conception.

What rights does a child enjoy if conceived after a testator's death? Such a child is described as a "posthumously procreated child".

Our law is presently unclear about whether a child born of a gamete (sperm in this case), left behind and frozen by a previously deceased father, could inherit. The common law and cases have never had to consider the situation of a child born to a parent that died before conception.

 

The law does provide for a child born after a testator's death after natural conception. The wills Act provides:

 

In the interpretation of a will, unless the context otherwise indicates any benefit allocated to the children of a person, or to the members of a class of persons, mentioned in the will shall vest in the children of that person or those members of the class of persons who are alive at the time of the devolution of the benefit, or who have already been conceived at that time and who are later born alive.

 

The Intestate Succession Act does not deal with inheritance claims by posthumously procreated child beneficiaries.

 

See this interesting article on the topic: http://www.saflii.org/za/journals/PER/2018/11.html

 

Can a registrar of the high court grant a default judgment where the national credit act applies?

 

In Gcasamba v Mercedez-Benz Financial Services [2022] 4526-2021 (FB) at [28]-[73], the court had to decide if a registrar had the authority to grant a judgment by default against Gcasamba who defaulted on his instalments due to Mercedes-Benz Financial Services. 

Mercedes-Benz Financial Services financed the purchase of a 2014 Mercedes Benz E200. They sued Gcasamba for the arrears. He never received the summons as he changed addresses. When he failed to defend the summons, the company applied for judgment, which the registrar granted. As a result, the sheriff repossessed the vehicle that Gcasamba had bought. 

As a result, he applied to the court to rescind the judgment. The court found that it is not competent for the Registrar of the High Court to grant default judgments in matters to which the National Credit Act 34 of 2005 applies. It ordered that the vehicle be immediately returned to him.