Postnuptial registration of antenuptial contracts

If I am married in community of property, is it possible to change to another form of marriage contract?

Section 21(1) of the Matrimonial Property Act provides that a husband and wife may apply jointly to court for leave to change the matrimonial property system which applies to their marriage.

Requirements In order for the parties to change their matrimonial property system, the act mentions the following requirements:

a) There must be sound reasons for the proposed change. According to South African Law, the parties who wish to become married out of community of property must enter into an Antenuptial contract prior to the marriage ceremony being concluded.  If they fail to do so then they are automatically married in community of property. Of course, many people are unaware of this provision and should be able to satisfy the court that it should change their matrimonial property system if it was their express intention that they intended to be married out of community of property.

b) Sufficient notice of the proposed change must be given to all creditors of the spouses. The Act requires that notice of the parties’ intention to change their matrimonial property regime must be given to the Registrar of Deeds, must be published in the Government Gazette and two local newspapers at least two weeks prior to the date on which the Application will be heard and must be given by certified post to all the known creditors of the spouses. Moreover, the draft Notarial contract which the parties propose to register must be annexed to their Application.

c) The court must be satisfied that no other person will be prejudiced by the proposed change. The court must be satisfied that the rights of creditors of the parties must be preserved in the proposed contract so the application must contain sufficient information about the parties’ assets and liabilities to enable the court to ascertain whether or not there are sound reasons for the proposed change and whether or not any particular person will be prejudiced by the such change.

Once the court is satisfied that the requirements have been met, it may order that the existing matrimonial property system may no longer apply to their marriage and authorize them to enter into a Notarial contract by which their future matrimonial property system is to be regulated on such conditions as the court may think fit.

The decision of Lourens et Uxor 1986 (2) SA 291 (C) sets out guidelines that the courts generally appear to have followed with regard to applications in terms of section 21(1) of the Matrimonial Property Act No. 88 of 1984.

The procedure and cost of the application.

Unfortunately, the application is expensive  in that you and your spouse have to apply to the High Court on notice to the Registrar of Deeds and all known creditors, to be granted leave to sign a Notarial Contract having the effect of a postnuptial contract which, after registration, will regulate you new matrimonial property system.

Domain names and ADR

In the Government Gazette, published in December 2015, the Minister of Telecommunications and Postal Services introduced an amendment to the Alternative Dispute Resolution (ADR) Regulations. Whereas before, the ADR route only applied to .co.za domain names, the procedure now applies to .net.za, .web.za and .org.za domain names, as well.

Under the regulations, an aggrieved party may lodge a complaint against the registrant of a domain name if the domain name is “offensive” or “abusive” (e.g. it takes unfair advantage of another party’s rights, including a registered trade mark right.

When is someone disqualified from benefiting under a will?

The following persons are disqualified from benefiting under a will:

1.      A person who has unduly influenced the person who wrote the will to give him a benefit under the will.

2.      A person who is unworthy, e.g.

·        A person who unlawfully has caused the death of the testator. This is in accordance with the maxim de bloedige hand er neemt geen erffenis, and clearly the person who murders another cannot take a benefit from the will of his victim.

·        a person who has led another into an immoral life and indirectly caused the latter’s death;

·        a person who has concealed the will of the testator;

·         A person who has attempted to defraud persons of their rightful inheritance by forging a will.

In Makhanya v Minister of Finance the court used the de bloedige hand maxim to extend the rule to cover any proceeds from the deceased’s pension fund from benefiting the person who caused the deceased’s death.

The facts in Danielz NO v De Wet and Another were that De Wet was the sole nominated beneficiary under four life insurance policies on the life of her late husband. In 2000, she hired and paid two men to assault her husband. Unfortunately, they killed him.

In 2006, after the she had been convicted on the criminal charges against her, she claimed under the life insurance policies from the insurer. The applicant, who was the nominee of the insurer (Old Mutual), applied for a declaratory order that De Wet was not entitled to the proceeds of the life insurance policies.

The court agreed and the application for a declaratory order to bar De Wet from claiming the proceeds of the policy was therefore successful.

How binding is a suretyship agreement contained in the terms and conditions of an application for credit?

Typically the credit application contains a clause like this:

By his/her signature hereto, the signatory hereby interposes and binds himself as surety and co-principal debtor in solidum for the due faithful and punctual performance of all obligations undertaken by the abovenamed Applicant in favour of the Creditor, under renunciation of the legal exceptions of excussion and division, the full meaning and import of which he is fully conversant with.

The Consumer Protection Act requires a credit provider to:

·        Provide consumers with prior written notice of clauses in agreements that may constitute a potential risk or liability to consumers.

·        Specifically draw the fact, nature and potential effects of risks to the attention of consumers, in a conspicuous manner and form, to which the consumers accordingly accept responsibility.

On that basis, the terms and conditions should have a preamble in bold, something like this:

IMPORTANT NOTICE. The CLIENT’s attention is drawn to the penalty for early cancelation in paragraph 5, the authority to increase the debit order amount in 6.4, the indemnity in paragraph 7.4 and the surety provisions contemplated in paragraph 7.6.

The CPA came into effect in 2010. Before that, in the matter of Brink v Humphries & Jewell (Pty) Ltd 2005 (2) SA 419 the Supreme Court of Appeal held that the suretyship was invalid as the signatory had not known, or been informed that the document embodied a personal suretyship.

The Court was of the view that:

(1)  The suretyship agreement must have a prominent heading which proclaims that it is such.

(2)  The clause containing the suretyship must be conspicuous.

(3)  The form must identify that the signatory is signing in their capacity as surety.

(4)  The signatory must sign as surety.

The CPA reinforces that decision.

Restraint of trade - establishing a protectable proprietary interest.

In Super Group Trading (Pty) Ltd v Naidoo and another, the court enunciated the criteria for enforcing a restraint, namely whether:

·        there was a contract of employment between the employer and the employee, which included as one of its terms, the restraint of trade;

·        the employer has any proprietary interests warranting protection;

·        the employee breached the employment contract with the employer and was in breach of the restraint.

The legal position where an employer seeks to enforce a restraint of trade agreement on the basis of a risk of harm to its trade connections and in particular its connections with its customers, is as follows. The need of an employer to protect his trade connections arises where the employee has access to customers and is in a position to build up a particular relationship with the customers so that when he leaves the employer’s service he could easily induce the customers to follow him to a new business. A protectable interest in the form of customer connections does not come into being simply because the former employee had contact with the employer’s customers in the course of their work. The connection between the former employee and the customer must be such that it will probably enable the former employee to induce the customer to follow him to a new business. Based on the facts, the Court found that the applicant did not establish a protectable proprietary interest.