Why you should have a will

        

Getting a Will written is arguably the best gift you can give your family after your lifetime.  Whenever we think of a Will, we face the natural fear of our mortality, so we do our best to avoid thinking about it.  Unfortunately, so many clients do not have a Will.

We want our loved ones to be cared for after our lifetime, and isn’t that why we have insurance policies?  A Will is equally, if not more important, to ease their pain and suffering after we are gone.  But if you are still looking for reasons to be convinced, here are a few:

·         You get to decide how you distribute your assets. You get to leave out people you don’t want to enjoy your assets. The last thing you want is for your assets to fall into the wrong hands after your lifetime. 

·         A Will is a binding document wherein you choose who should inherit your assets.  When a person dies intestate (without a will), you have no control over who inherits. The Intestate Succession Act prescribes the order of inheritance. Without a will, your assets will go to all your intestate heirs, not only those you want to benefit. 

·         You get to choose the guardian of your minor children if you and your spouse die together. A Will makes you take an informed decision as to who looks after your minor children in case of an untimely death.  Without a Will, the courts will have to interfere in appointing a minor guardian, and you may not have a say in who takes care of your children, or for that matter, who will look after your property until your children become majors. 

·         You can donate your assets to charity.

·         You can amend your Will as many times as circumstances change.

CCTV cameras and harassment

 

A client asked if he could lay a criminal charge against a neighbour because her CCTV camera points directly at his bedroom window and invades his privacy. He asked her to point it away, but she refuses to cooperate.

 

We have written an article about CCTV cameras at home and the right to privacy. 

This article deals with the criminal implications of harassment. 

The Protection from Harassment Act (No. 17 of 2011) deals with your right to approach a Magistrates’ Court in the prescribed manner for a protection order against harassment if you (the Complainant) feel that a person (called the Respondent) is harassing you if he or she causes harm or inspires the reasonable belief that harm may be caused to the complainant (you or a related person [meaning any member of your family or household, or any other person in a close relationship to you] by unreasonably following, watching, pursuing or accosting you or a related person, or loitering outside of or near the building or place where you or a related person resides, works, carries on business, studies or happens to be. 

The Act provides for an inexpensive civil remedy to protect a person from behaviour which may not constitute a crime but may impact negatively various rights of an individual. It aims to provide a remedy in the form of protection which would prohibit a person from harassing another person. If the harasser breaches a protection order, he or she commits an offence which is punishable by a fine or a period of imprisonment. It aims to address harassing behaviour by means of a court order, in terms of which the harasser is prohibited from continuing with the act of harassment.

Any person who contravenes such an order is guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding five years. 

It is clear that installing a CCTV camera on your property that unreasonably invades the privacy of your neighbour constitutes harassment. You may ask a magistrate at your local court for a temporary order which grants immediate relief until the return date (the date on which the applicant and the respondent, after being given due notice, are to appear before the court to have the protection order made a final order).

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.