Understanding Marriages Subject to Accrual: A Guide for Everyone

Marriage is a significant milestone in one's life, and understanding the legal aspects that govern it is crucial. One type of marriage arrangement is known as a marriage subject to accrual. In this article, we will explore the concept of marriages subject to accrual, highlighting its legal implications and how it affects the distribution of assets.

Marriage Out of Community of Property and Profit/Loss:

A marriage subject to the accrual system is a specific type of marriage arrangement governed by the Matrimonial Property Act 88 of 1984. It differs from the traditional community of property and profit/loss arrangements. Under the accrual system, each spouse maintains ownership and control over their individual estates. This means that neither spouse has any rights or claims to the assets owned by the other spouse during the marriage [Reeder v Softline Ltd & Another 2001 (2) SA 844 (W)].

Asset Distribution on Dissolution:

Upon the dissolution of a marriage subject to accrual, either through a divorce or the death of one or both spouses, the Matrimonial Property Act outlines the rules regarding the distribution of assets. Section 3(1) of the Act explicitly states that:

"At the dissolution of a marriage subject to the accrual system, by divorce or by the death of one or both of the spouses, the spouse whose estate shows no accrual or a smaller accrual than the estate of the other spouse, or his estate if he is deceased, acquires a claim against the other spouse or his estate for an amount equal to half of the difference between the accrual of the respective estates of the spouses."

In simple terms, this means that the spouse whose estate has not grown or has shown a smaller growth compared to the other spouse's estate is entitled to a monetary claim against the other spouse's estate. This claim amounts to half of the difference between the respective accruals of the spouses. However, it's important to note that this claim only arises upon the dissolution of the marriage, and during the marriage, spouses do not have the right to claim each other's assets.

Accrual and Sharing of Estates:

While the accrual claim only arises when the marriage is dissolved, the right to share in the accrual of each other's estates begins when the spouses enter into the marriage. Throughout the marriage, both spouses have a legal right to share in the growth of each other's estates. This means that if one spouse's estate grows significantly more than the other's, there will be a potential accrual claim when the marriage ends.

Conclusion:

Understanding the concept of marriages subject to accrual is vital for individuals entering into such arrangements. This legal framework allows spouses to maintain their individual estates while still benefiting from the growth in each other's assets during the marriage. Upon dissolution, the spouse with a smaller or no accrual has a monetary claim against the other spouse's estate. By grasping the implications of this system, individuals can make informed decisions and ensure a fair distribution of assets in the event of divorce or the passing of a spouse.

Defamation on social media: A Case Study of Hartland v APC Marketing

Explore a notable case of defamation on social media as the Western Cape High Court intervenes, prohibiting a roofing contractor from making defamatory statements and requiring the removal of social media posts. Learn about the court's orders and the impact on the involved parties.

In a recent court case, known as Hartland v APC Marketing, the Western Cape High Court addressed a situation where a roofing contractor, Dakman, defamed a construction company on social media after being removed from a project. The court intervened and issued an interdict, prohibiting Dakman from making further defamatory statements and requiring the removal of the posts from social media.

Let's set the context: Hartland is a property development company that focuses on the construction of the Hartland Lifestyle Estate Development in Mosselbay. Dalmar is responsible for building the homes within this development.

Dalmar had appointed Dakman as a sub-contractor for roofing work during specific phases of the project. However, Dalmar terminated its contract with Dakman due to disputes regarding the quality of Dakman's workmanship and productivity.

Feeling aggrieved, Dakman took to social media platforms to air their grievances. They posted a public notice/corrective statement on a WhatsApp group with around 300 members in the Herolds Bay area. Additionally, they made statements on Facebook, claiming that the developers were compromising safety by cutting corners in the development process.

As a response, Hartland and Dalmar (referred to as the Applicants) urgently approached the court seeking specific relief:

·        An interdict to prevent the respondents (Dakman) from making any further allegations against the applicants through any form of statement, including social media posts.

 

·        A directive for the respondents to remove the defamatory publications.

 

·        A directive for the respondents to issue a retraction and apology to the applicants for defaming them, causing harm to their reputation and dignity, on the platforms where the offending statements were published.

 

The applicants argued that Dakman's publications constituted defamation, warranting the relief sought. The court agreed with the applicants' contentions, stating that Dakman had made baseless claims on social media regarding the quality of work at the Hartland Lifestyle Estate Development with the intention of pressuring the applicants to pay their outstanding invoices.

In conclusion, this case highlights the legal consequences of defamatory actions on social media. The court's decision to issue an interdict, remove offending publications, and demand a retraction and apology serves as a deterrent for similar behaviour in the future.

South African Supreme Court of Appeal Rules Automatic Loss of Citizenship Unconstitutional

The Supreme Court of Appeal (SCA) has ruled that the automatic loss of South African citizenship after gaining citizenship in another country is unconstitutional. 

In a recent case heard by the SCA, the court upheld an appeal by the Democratic Alliance (DA) brought on behalf of South African citizens challenging the automatic loss of South African citizenship through the operation of s 6(1)(a) of the South African Citizenship Act 88 of 1995.

 

This section provides that a South African citizen would cease to be a South African citizen if they, whilst not being a minor, by some voluntary and formal act other than marriage, acquire the citizenship or nationality of a country. An affected person must first apply for and obtain ministerial permission to retain their citizenship, before applying for citizenship of another country.

 

One Plaatjes, a South African living in the United Kingdom became a naturalised citizen of the UK. Years later, he went to the South African embassy in London to renew his South African passport to learn he had automatically lost his South African citizenship by acquiring British citizenship. The embassy officials thereupon cancelled his South African passport. Mr Plaatjes never wanted to leave South Africa permanently, nor relinquish his South African citizenship.

On behalf of Plaatjes, the DA challenged the constitutional validity of s 6(1)(a). The Minister of Home Affairs opposed the application.

 

Judge Zondi, on behalf of the SCA, said the Minister’s lawyers were unable to point to a legitimate government purpose which the section of the Act sought to achieve “save for a generalised submission that its purpose is to regulate the acquisition and loss of South African citizenship”.

 

The SCA declared that s 6(1)(a) of the South African Citizenship Act 88 of 1995 is inconsistent with the Constitution and is invalid from its promulgation on 6 October 1995. It further declared that those citizens who lost their citizenship by operation of s 6(1)(a) are deemed not to have lost their citizenship.

 

In declaring the section unconstitutional, and backdating that invalidity to 1995, Judge Zondi said others in a similar situation to Plaatjes must “enjoy the benefit of restoration without the need for any further litigation”.

This welcome judgment ensures protection for citizens who acquired citizenship in another country while not intending to permanently leave South Africa or relinquish their South African citizenship.

 

 

The Govendor Case: Validity of Electronic Contracts in SA Law

 

Electronic Signatures: Recognized as Legally Binding in South African Law

Explore the effect of electronic contracts on South African law, as demonstrated in the Govendor case. Understand the requirements of the Electronic Communications and Transactions Act (ECTA) for electronic signatures and their validity in the National Credit Act (NCA).

Understanding ECTA and NCA in Electronic Contracts

Introduction: The Govendor case serves as a significant example of the impact of electronic contracts on South African law. This article delves into the court's findings and the requirements set forth by ECTA regarding electronic signatures. Additionally, we explore how the NCA applies to instalment sale agreements and the validity of electronic contracts in South Africa.

In the Govendor case, an instalment sale agreement between FirstRand t/a Wesbank and Govender for a Mercedes Benz vehicle was concluded electronically. When Govender defaulted, the bank successfully claimed the return of the vehicle. However, Govender argued that FirstRand did not comply with the ECTA signature requirement.

The National Credit Act, 2005 (NCA), specifically addresses instalment sale agreements. According to the NCA, if a provision requires a document to be signed or initialed, parties can fulfil this requirement using an advanced electronic signature as defined in ECTA or an ordinary electronic signature, provided certain conditions are met. These conditions include the physical presence of each party or agent during the application of the electronic signature, and the credit provider's reasonable measures to prevent unauthorized use.

ECTA's Distinction: Electronic Signatures vs. Advanced Electronic Signatures

ECTA plays a crucial role in regulating electronic signatures. The act differentiates between an "electronic signature" and an "advanced electronic signature." An electronic signature is defined as data attached to, incorporated in, or logically associated with other data, intended by the user to serve as a signature.

The court emphasized that electronic signatures are now recognized in South African law as equivalent to a written contract. Consequently, a valid written contract can be concluded electronically. Based on this recognition, the court held the electronic contract between FirstRand and Govender as valid, ruling in favour of FirstRand.

Conclusion: The Govendor case highlights the evolving nature of South African law in embracing electronic contracts. Understanding the requirements set by ECTA and the validity of electronic signatures under the NCA is essential for businesses and individuals engaging in electronic transactions. By recognizing electronic signatures as legally binding, South Africa acknowledges the validity and enforceability of electronic contracts.

Concourt Rules Sections of PAIA and Tax Administration Act Unconstitutional: SARS Must Grant Access to Former President Zuma's Tax Records

In 2019, Warren Thompson, a financial journalist, applied under the Promotion of Access to Information Act 2 of 2000 (PAIA) to gain access to the tax records of former President Jacob Zuma. This application was prompted by allegations made in Jacques Pauw's book, "The President's Keeper," and subsequent support from other sources. The allegations suggested that Mr Zuma had evaded tax, failed to disclose additional income sources, and neglected tax obligations related to fringe benefits during his presidency.

SARS initially denied Thompson's application, citing Mr Zuma's confidentiality entitlement under PAIA's sections 34(1) and 35(1), as well as section 69(1) of the Tax Administration Act 28 of 2011 (TAA). Thompson appealed internally, but SARS dismissed the appeal on the same grounds. Consequently, Thompson and others filed a legal application in the High Court, seeking a determination on the extent of protection for tax information under PAIA.

The applicants aimed to challenge the constitutionality of the statutory prohibition against disclosing a taxpayer's tax information held by SARS. They argued that the prohibition should not be absolute when disclosure would reveal substantial legal violations and be in the public interest.

The relief sought from the High Court included:

(a) A declaration of unconstitutionality for sections of PAIA and TAA that prevent access to a taxpayer's tax information under PAIA by requesters other than the taxpayer, even when disclosure is clearly in the public interest.

(b) A "reading-in" remedy to expand the limited public interest exception in PAIA, allowing broader access to tax information when disclosure serves the public interest.

(c) An order granting access to Mr Zuma's relevant tax records that relate to the allegations and their implications for the public interest.

The High Court granted the relief, and on appeal, the Constitutional Court upheld the order in Arena Holdings (Pty) Ltd t/a Financial Mail and Others v South African Revenue Service and Others (CCT 365/21) [2023] ZACC 13 (30 May 2023).

The Constitutional Court found sections 35 and 46 of PAIA and 67 and 69 of the TAA constitutionally invalid. It emphasized the need to balance the right to privacy with the rights of access to information and freedom of expression. Thompson's request for access to Zuma's tax returns for the 2010 to 2018 tax years was referred back to SARS for reconsideration in light of the court's order. The Minister of Justice and Correctional Services was given until the end of June 2023 to supplement the request for access to the records.

To allow Parliament time to address the constitutional invalidity, the Court suspended the specific sections for 24 months from the date of the order.

This judgment is expected to enhance transparency in public bodies and among public officials, reinforcing the constitutional right of access to information.