Courts Must Only Adjudicate Based on Pleadings and Trial Issues

The SCA emphasized that courts should not pronounce on claims or defences not presented in the pleadings.

Introduction:

In the Mashola case (22/2022), the Supreme Court of Appeal (SCA) had to determine whether a partial forfeiture order should be imposed on the husband’s pension interest/benefit held by the Government Employee Pension Fund (GEPF) following their divorce. This article discusses the legal principles involved in the case and analyses the court's decision.

Background and Evidence Presented:

During the trial, it was revealed that the husband had engaged in a long-standing extramarital affair, which had significant impacts on their marital estate. He made minimal financial contributions to the joint estate and transferred assets to his mistress. The wife had to resort to the maintenance court to compel her husband to contribute to the maintenance of their children.

Legal Principles Applicable:

The Divorce Act contains three key provisions relevant to this case. Sections 7(7) and 7(8) address the entitlement of spouses to a half share in each other's pension interests, while section 9(1) deals with the forfeiture of benefits. In the Wijker v Wijker case, the Appellate Division clarified the legal principles relating to section 9(1), establishing two key steps for the court to consider.

Analysis of the Decision:

The full court dismissed Mrs Mashola's appeal, arguing that she had condoned her husband's extramarital affair for nine years, which undermined her claim for a forfeiture order. However, the SCA found that condonation was not raised in the pleadings or during the trial before the High Court. The SCA emphasized that courts should not pronounce on claims or defences not presented in the pleadings, highlighting the misdirection of the full court in this case.

Furthermore, the full court failed to apply the two-pronged approach outlined in the Wijker case. The SCA held that the wife did not condone the extramarital relationship on every interpretation of the facts. The court considered various factors, including the humiliation caused by the affair being conducted publicly, the depletion of the joint estate, the husband's financial support of his mistress at the expense of his family, and Mrs Mashola's sole dependence on her salary.

Conclusion:

This judgment underscores the importance of courts adhering to the principle of adjudicating only on issues raised in the pleadings or during the trial. Pronouncing on claims not presented by the litigants constitutes an impermissible misdirection. In this case, the SCA upheld the appeal, finding that Mr. Mashola's substantial misconduct and Mrs. Mashola's direct financial contributions to the joint estate satisfied the requirements for a partial forfeiture order under section 9(1) of the Divorce Act.

The Process to Wind up a Deceased Estate

Notification and Death Certificate:

If your loved one passed away in a hospital, the medical practitioner will complete a BI-1663 form (notification of death) to certify the death. You will receive a copy.  If your loved one did not pass away in a hospital, the mortician will complete the form and hand it to the next of kin. You must take the BI-1663 form, with the deceased’s original valid South African identity card to the Department of Home Affairs which issues a death certificate. The funeral home or the Department of Home Affairs stamps ‘Deceased’ on the identity card or document of the deceased and punches a hole in the identity card.

Reporting the estate:

The estate of a deceased person must be reported to the Master of the High Court’s office in the area where the deceased lived. within 14 days from the date of death.

 

The person nominated to wind up the estate (the executor or his or her agent – normally a lawyer, accountant, or trust company) reports the estate at the offices of the Master, who issues Letters of Executorship in favour of the executor or executrix, authorising him or her wind up the estate.

 

If an executor is not specified in the will of the deceased, the Master will appoint one on the deceased’s behalf. The family may also nominate an executor if there is no will.

 

The following documents must be lodged:

 

• An original or certified copy of the Death Certificate and Identity Document.
• An original or certified copy of the marriage certificate.
• A declaration of marriage by the surviving spouse indicating the type of marriage.
• The original will and any annexures that may apply.
• A completed next-of-kin affidavit if there is no will in place.
• A completed inventory.
• A declaration to confirm that the estate has not been reported at another Master’s office.

 

Letters of executorship:

 

The master then issues letters of executorship authorizing the nominated executor to wind up the estate of the deceased. In estates worth less than R250,000 the Master issues Letters of Authority and the formalities are much less stringent.

 

Notice to creditors:

 

On receipt of the Letters of Executorship, the executor arranges the publication of a notice to creditors in a local newspaper and government gazette, inviting them to submit any claims against the estate, within 30 days.

 

Estate Account Submission:

 

Within 6 months of the issuing of the Letters of Executorship, the executor must submit an estate account (liquidation and distribution account) to the Master. This account gives effect to the wishes of the deceased in his will (or the laws of intestacy if there is no will).

 

Approval and Advertisement:

 

Once the Master approves the account, the executor has it advertised, and it lies for inspection for 21 days. If no objections are received within 21 days, he or she pays out the heirs and beneficiaries and transfers any fixed property.

 

Finalising the estate:

The executor then lodges proof of advertisement, proof of payment to heirs and creditors, bank statements, a tax clearance certificate and other required documents and asks the Master to confirm that the estate may be regarded as finalised.

The following words are commonly used when dealing with deceased estates:

Estate	the deceased’s assets and liabilities at the time of his or her death
Testator	a man who makes a will
Testatrix	a woman who makes a will
Dying testate	when a person dies leaving a will
Dying intestate	when a person dies without leaving a will
Executor	a man who distributes the estate under a will
Executrix	a woman who distributes the estate under a will
Letters of Executorship	letters issued by the Master, authorising the executor to wind up the estate

 

A Holistic Approach to Winding Up a Deceased Estate in South Africa

 

Introduction:

Losing a loved one is a deeply emotional experience that can be accompanied by overwhelming legal and financial concerns. We understand the challenges involved in winding up a deceased estate and want to assure you that you don't have to face this journey alone. At Bregman Moodley Attorneys Inc, we offer more than just legal expertise—we provide compassionate support to help alleviate the burden during this difficult time.

With a focus on providing expert legal assistance and addressing all aspects of estate administration, we strive to ensure a smooth and thorough process. In this guide, we will outline the steps involved in winding up a deceased estate.

Legal Requirements

When someone passes away, their estate consists of their immovable and movable assets. The primary objective of estate administration is to transfer ownership of these assets to the beneficiaries mentioned in the will or according to the Intestate Succession Act if there is no valid will. The Administration of Estates Act provides the necessary guidelines for administering a deceased estate.

Steps in the Process:

Understanding your needs: We begin by listening to your concerns and understanding your unique circumstances. Our empathetic team takes the time to comprehend your specific requirements, ensuring a personalized approach to winding up the estate.

Gathering essential documentation: We assist you in gathering all the necessary documents required to report the estate to the Master of the High Court. Our attention to detail ensures that nothing is overlooked, and the process moves forward smoothly.

Streamlining administrative tasks: Acting as your trusted agent, we handle the submission of reporting documents and obtain the crucial Letters of Executorship or Letters of Authority. This streamlines the administrative procedures, saving you valuable time and effort.

Facilitating effective communication: We acquire a power of attorney to communicate with creditors and debtors on your behalf. Our proactive approach ensures that all parties are kept informed, fostering transparency and efficient resolution of any financial matters.

Financial management made easy: We guide you in opening a dedicated bank account for the estate. This dedicated account simplifies financial transactions, ensuring that funds from debtors are received and managed efficiently.

Meeting financial obligations: We address expenses associated with disbursements promptly and diligently. By ensuring that all financial obligations are met, we pave the way for a seamless estate administration process.

Comprehensive estate assessment: We compile a detailed Liquidation and Distribution Account, meticulously documenting all income, expenses, and the distribution of surplus to heirs. This comprehensive account serves as a reliable reference for estate settlement and addresses any estate duty requirements.

Seeking necessary approvals: We seek permission from the Master to advertise the Liquidation and Distribution Account, adhering to the legal requirements. Our experienced team handles the necessary correspondence, ensuring a smooth and compliant process.

Transparent publication: We publish the Liquidation and Distribution Account in the Government Gazette and the Citizen newspaper, providing an opportunity for interested parties to review and raise any objections if required. Our commitment to transparency fosters a fair and inclusive approach.

Allowing for inspection: We facilitate a 21-day inspection period of the Liquidation and Distribution Account, providing an opportunity for interested parties to scrutinize the details. This period ensures transparency and addresses any concerns that may arise.

Fulfilling financial commitments: We settle any outstanding debts with creditors, ensuring that all financial obligations are met with integrity. Our diligent approach leaves no stone unturned, ensuring a fair and equitable distribution of assets.

Asset distribution: We oversee the distribution of remaining assets to the heirs in accordance with the wishes expressed in the will or the Intestate Succession Act. Our meticulous attention to detail ensures a smooth and just allocation process.

Compliance with tax requirements: We facilitate the process of obtaining tax clearance from the South African Revenue Service (SARS) with the assistance of a bookkeeper. This ensures that all tax obligations are met in a timely and compliant manner.

Finalizing the estate: We fulfil any remaining requirements, ensuring that the estate administration process is brought to a satisfactory conclusion. Our dedication to comprehensive and thorough estate administration leaves no loose ends.

Throughout this journey, we stand by your side, providing you with the compassion and understanding you deserve. At Bregman Moodley Attorneys Inc, we are committed to easing your burden and honouring the memory of your loved one with the utmost care. Please reach out to us, and together we can navigate the winding up of the deceased estate, offering solace and support when you need it most.

Please email Roy Bregman to discuss the quickest and most cost-effective way of finalising your loved one’s deceased estate, thereby giving you peace of mind during your period of bereavement.

Please go here to see the process that must be followed in winding up an estate, and the definition of commonly used words.

 

Department of Justice and Constitutional Development Fined R5m Under POPIA

Under the Protection of Personal Information Act (POPIA), the Information Regulator has the authority to issue an infringement notice to a company or organization that is believed to have violated POPIA. This notice can result in an administrative fine of up to ZAR 10 million. The Regulator considers various factors when determining the appropriate fine, such as the type of personal information involved, how long the violation occurred, the number of individuals affected, the potential harm or distress caused, and whether the responsible party could have prevented the violation or has a history of similar offences under POPIA.

The Information Regulator has issued its first administrative fine under POPIA against the Department of Justice and Constitutional Development (DoJ&CD) by fining it R 5 million for a security compromise that occurred in 2021, resulting in the loss of personal information.

Introduction:

Since the enforcement of POPIA in South Africa, companies have faced increasing scrutiny over their compliance with data protection regulations. One recent development involves the DoJ&CD, which has been issued with an administrative fine by the Information Regulator. This article summarizes the key details of the case, including the security compromises, enforcement notices, and the consequences faced by the DoJ&CD.

Background:

In September 2021, the DoJ&CD experienced a security compromise that affected its IT systems, leading to the loss of approximately 1,204 files containing personal information. The Information Regulator, responsible for overseeing POPIA compliance, investigated and found that the DoJ&CD had failed to implement adequate technical measures and safeguards to protect the personal data it processes.

As a result of the non-compliance, the Information Regulator issued an Enforcement Notice to the DoJ&CD in May 2023. The notice outlined specific actions that the department needed to take to remedy the situation. However, the DoJ&CD failed to comply with the notice, leading to the imposition of an administrative fine by the Regulator.

The Regulator determined that a fine of ZAR 5 million was appropriate in this case. The DoJ&CD now has a 30-day deadline to pay the fine or arrange with the Regulator for instalment payments. Alternatively, the department may choose to be tried in court on the alleged offence referred to in terms of POPIA.

Ironically, the DoJ&CD suffered another security compromise in April 2023, resulting in a loss of ZAR 18 million from its Guardian's Fund. The incident was reported to the Regulator several days later, adding to the challenges faced by the department in safeguarding personal information.

Conclusion:

The case involving the DoJ&CD serves as a significant example of the Information Regulator's enforcement of POPIA regulations. Companies and organizations operating in South Africa need to prioritize data protection and ensure compliance with the law. Failure to do so can result in substantial fines, reputational damage, and potential legal consequences. As the Regulator continues to actively assess various sectors, organizations must stay vigilant and take appropriate measures to protect personal information and fulfil their obligations under POPIA.

Such measures include regularly testing and verifying your security measures, updating your policies and documents, performing privacy impact assessments, staying tuned to regulatory updates, and conducting regular privacy training for employees (especially new joiners) to ensure they understand the company’s policies and processes and their responsibilities in protecting personal information.

Court's Authority to Compel Journalists to Disclose Sources

When can a court ask a journalist to divulge a source of information?

Introduction:

The case of Mazetti Management Services v amaBhungane [2023] 2023-050131 (GJ) (the Mazetti case or Mazetti) explores the circumstances in which a court can request a journalist to reveal their confidential source of information. This summary provides an overview of the case and its implications for the balance between journalistic freedom and the public interest.

Background:

Mazetti obtained an ex parte (without notifying the other party) and in camera (in private) order from the urgent motion court. The order demanded the return of digital documents allegedly stolen from the company by a former employee, which were believed to be in the possession of the respondents, an investigative journalistic enterprise, and its individual journalists. Additionally, the order prohibited the journalists from publishing any information derived from or related to the documents.

Importance of Anonymous Sources in Investigative Journalism:

The court acknowledged the significance of investigative journalism in receiving information from sources who wish to remain anonymous. It emphasized the need for courts to strike a balance between safeguarding privacy and confidentiality in private matters and the public's right to access news, particularly news that exposes wrongdoing.

Evaluation of the Ex Parte Application:

The court deemed the ex parte application by Mazetti as an abuse of the court process. It criticized the decision to seek the order without notifying the journalists and concluded that there was no justifiable reason for such an approach.

Findings:

Protection of Journalistic Sources:

The court recognized the essential nature of protecting sources for investigative journalism to function effectively. It stated that journalists have the right to refuse to disclose their sources unless doing so would conflict with the public interest.

Proper Notice for Restraining Publication:

The court clarified that any attempt to restrain or forbid a journalist from publishing an intended article must be brought with appropriate notice, allowing the journalist to present their case.

Court Order:

The court set aside the order granted to Mazetti, deeming it invalid. It placed the responsibility for the costs of the respondents (amaBhungane) and the amici (additional parties supporting the journalists) on Mazetti, including the fees for legal representation.

Conclusion:

The Mazetti case reaffirms the significance of protecting journalistic sources and emphasizes the need for courts to carefully consider the public interest before compelling journalists to reveal their sources. It also highlights the importance of providing journalists with proper notice and an opportunity to present their case when seeking to restrain publication.