Who gets my assets if I die with no will and heirs?

What happens to your assets if you die without a will and any living relatives?

A client advised that a friend died without leaving a will. His assets include a townhouse, two cars and a few bits of furniture. Who inherits?

The common law provides that, in this case, the State acquires the whole estate as bona vacantia. The matter is now regulated by sections 35(13) and 92 of the Administration of Estates Act 66 of 1965. The procedure is that where the intestate heirs cannot be identified or if there are no intestate heirs, the executor must sell all the assets in the estate (in this case, the townhouse, etc.) and, after payment of the estate’s debts, pays the residue into the Guardian’s Fund. If nobody can prove that they have a claim to the estate as an intestate heir of the deceased, then after 30 years have elapsed after payment of the funds into the Guardian’s Fund, the money accrues to the State.

You will find a really useful overview on the distribution of an estate of a person dying with or without a will, here: http://www.justice.gov.za/juscol/news/201106_intestate-and-testate-succession.pdf  

What is marriage annulment?

An annulment is a court order which nullifies a marriage, or declares that no marriage ever existed.

A marriage can end through death of one of the parties, divorce or annulment.

Annulment occurs when a court declares the marriage to be void or voidable. In both cases, the court can declare the marriage as at an end.

When can a marriage be annulled as void?

Technically, because void marriages were never legal to begin with, there is no need for a formal annulment. The parties can simply walk away from the marriage and get on with their lives. It makes more sense, however, to obtain a formal declaration of annulment to avoid any future legal problems.

A court will set aside a marriage as void in any of the following circumstances:

·         The person who solemnised the marriage was not competent to do so (provided that although a marriage solemnised by a person who is not a marriage officer is void, it can be ratified by the Minister of Home Affairs, which will then make it valid);

·         The girl was under the age of 15, or the boy was under the age of 18 and did not obtain prior consent from the Minister of Home Affairs (a marriage contracted without his consent is void but the Minister may ratify the marriage, which will then be valid);

·         The parties to the marriage were too closely related (related within prohibited degrees);

·         One party is already married;

·         One party was not of sound mind when they got married.

When can a marriage be annulled as voidable?

A court will set aside a marriage as voidable in any of the following circumstances:

·         The wife was pregnant with the child of another man at the time of marriage;

·         Impotence or sterility.

·         Duress or intimidation (where one party forces the other into the marriage);

·         Fraud or misrepresentation (where one party claims to be something or someone that he or she is not).

How is annulment different to divorce?

Divorce is a legal way of ending a marriage when it has broken down irretrievably. An annulment is a legal way of ending the marriage that was void or voidable.

Lobolo

In our law, there is a direct correlation between the transfer of the lobolo, and the fertility of the wife. From a customary legal point of view, the marriage is only complete if, on the one hand, the woman has borne children, and, on the other, when the commitment to transfer the lobolo (e.g. the transfer of lobola cattle) has been fully satisfied.

If either requirement is not met, the marriage may be regarded as incomplete, and this could bring about the annulment of the marriage.

Children’s Act

In terms of section 39 of the Children’s Act, the rights of a child conceived or born of a voidable marriage shall not be affected by the annulment of that marriage and no voidable marriage may be annulled until the relevant court has inquired into and considered the safeguarding of the rights and interests of a child of that marriage.

A child conceived or born from a voidable marriage which is annulled is treated like a child whose parents' valid marriage is terminated by divorce.

Customary Marriage and Divorce, how does it work and what is required?

Source: Shando Theron (Theron and Theron’s Divorce and Matrimonial attorneys in Johannesburg) www.divlaw.co.za, shando@divlaw.co.za

Introduction:

A customary marriage is one where the spouses are married in terms of custom as opposed to the laws of a country, usually referred to a as civil marriage. Civil marriages are registered with Home Affairs and usually the couple are provided with a marriage certificate. Civil marriages are not the only types of marriages recognised in our law in South Africa. Customary marriages are also given recognition provided certain requirements are met. 

Requirements for entering into a customary marriage:

The Recognition of Customary Marriages Act 120 of 1998, came into operation on November 15, 2000, and set certain legal requirements for a valid customary marriage.

1.                       Capacity to enter into a customary marriage:

The parties must both be over the age of 18 years. If not, special written consent from the Minister of Home Affairs must be obtained. Men are allowed to have more than one wife but woman are not allowed to have more than one husband.

2.                       Consent of the bridegroom and bride:

The consent of the bridegroom and bride to enter into a marriage under customary law is necessary. This consent does not have to be given formally but can be implied from their conduct.

3.                       Consent of the father (or guardian) of the bride:

The consent of the father of the bride is essential, although this requirement is not expressly stated in the Act, it can however be read into s 3(1)(b) which states that: “the marriage has to be negotiated and entered into in accordance with customary law”. In the case of Mabena v Letsoalo where the father of the bride had abandoned the family, the consent of the mother was held to be sufficient. It was also decided in the same case that the consent of the parents of the bridegroom was not necessary.

4.                       Payment of Ikhazi / Lobolo:

The general rule is that payment of Lobolo is an essential requirement in concluding a customary union. Payment is made to the bride’s father or the head of the household. There are certain exceptions to this rule. For example, where the marriage is scheduled to take place during a period of mourning for a deceased Head of a tribe.

In modern and urban circumstances the Ikhazi or Lobolo is not paid in cattle, but the monetary equivalent of the cattle, i.e. money.  

5.                       The handing over of the bride:

The bride must be handed over to the bridegroom by her family or a designated member.

Where a second marriage is being entered into, is consent from a first wife required?

In customary marriages, men are allowed to have more than one wife which is not the same for women who are limited to marrying one husband.

In the case of Mayelane v Ngweyama, the Constitutional Court decided that under Tsonga customary law, the consent of the first wife for the valid consummation of the second marriage was required.

What is not necessary for a valid customary marriage?

Contrary to popular belief the law does not require the ukutyis amasi ceremony (the drinking of the sour milk), nor the slaughtering of a beast, for the valid consummation of the marriage.

Termination of a customary marriage after 20 November 2000:

The Act imposes a duty on spouses in a customary marriage to register the marriage with 3 months after the marriage (as proof of the marriage) at Home Affairs.

It is important to note that non registration does not make the marriage invalid, and there is no penalty for non-registration.

Once the marriage is valid and in existence, the marriage can only be dissolved by a court through a decree of divorce on the grounds of an irretrievable breakdown of the marriage, as that of a civil marriage, as per section 8(1) of the Act.

A further important point to note is that in terms of section 7 of the Act, all customary marriages are in community of property, unless such consequences are specifically excluded in terms of an antenuptial contract.

CONCLUSION:

A lot of uncertainty still exists especially amongst the different tribal customs, but the law is dynamic, ever growing and developing and the contribution yet to be made by all the above customs which makes the practice of matrimonial law one of the most exciting and interesting areas of law.

Is your sectional title complex looking a bit tired?

Sectional title maintenance and improvement

Maintenance

The trustees of your body corporate need to maintain the complex (to keep it more or less in its original condition). These items are provided for in a budget that deals with routine maintenance and provision for unforeseen expenses. The trustees normally have discretion to authorise spending on these items. If the maintenance item is out of the ordinary (e.g. you need to spend a large sum to resurface your tennis court) a majority of the owners should approve the expenditure.

Improvements

Sometimes, it may be necessary to improve the property (perhaps to make it appear more modern).  An improvement that is a “must have” is likely to be non-luxurious but one that is a “nice to have” is probably luxurious. The common property of a scheme is owned by all owners in undivided shares. One of the basic principles of co-ownership is that all owners must agree to any significant or change to their property.

Maintenance of the common property, especially in schemes that have been running for a few years, should hold no surprises. Improvements to the common property, on the other hand, are not routine. This uncertainty is unfortunate because while a non-luxurious improvement must almost always be authorised by a special resolution of the body corporate, a difficult thing to achieve, authorising a luxurious improvement always requires a unanimous resolution, an exceptionally difficult thing to achieve.

The trustees are entitled to suggest a non-luxurious improvement but there is a specified procedure that must be followed to get the authorisation. The owners must be notified in writing of the trustees’ suggestion and given 30 days to request a meeting to discuss the proposal. They must be fully informed of the financial implications and, if any owner requests a meeting to discuss the improvement, a meeting must be held and the special resolution taken at the meeting. If the resolution is not taken, the improvement cannot be made. There are two implications to this provision. The first is that if no owner requests a meeting within the required thirty day notice period, the meeting need not be held and no special resolution is required to authorise that particular improvement. The second is that this is one special resolution that must be taken at a meeting and cannot be taken by round robin.

What is POPI all about?

·         The Protection of Personal Information Act ("POPI") was signed into law by the President on 19 November 2013. POPI seeks to regulate the Processing of Personal Information.

·         POPI will have a far-reaching impact on your organisation with severe consequences for non-compliance.

·         POPI will regulate almost everything that companies do with information relating to customers, employees, suppliers, and others, including information already in your possession or under your control.

Personal Information broadly means any information relating to an identifiable, living natural person or juristic person (companies, CC’s etc.) and includes, but is not limited to:

• contact details: email, telephone, address, etc.
• demographic information: age, sex, race, birth date, ethnicity, etc.
• history: employment, financial, educational, criminal, medical history
• biometric information: blood type, etc.
• opinions of and about the person
• private correspondence, etc.

Processing means broadly anything done with the Personal Information, including collection, usage, storage, dissemination, modification or destruction (whether such processing is automated or not).

Some of the obligations under POPI are to:

• only collect information that you need for a specific purpose
• apply reasonable security measures to protect it
• ensure it is relevant and up to date
• only hold as much as you need, and only for as long as you need it
• allow the subject of the information to see it upon request

Does POPI really apply to me?

Accountability for compliance rests with a Responsible Party, meaning a public or private body or any other person which, alone or in conjunction with others, determines the purpose of and means for processing personal information. Generally the Responsible party must be resident in South Africa or the processing should occur within South Africa (subject to certain exclusions).

There are cases where POPI does not apply. Exclusions include: 

• purely household or personal activity
• sufficiently de-identified information
• some state functions including criminal prosecutions, national security, etc.
• journalism under a code of ethics
• judiciary functions, etc.

Why should I comply with POPI?

POPI promotes transparency with regard to what information is collected and how it is to be processed. This openness is likely to increase customer confidence in the organisation.

POPI compliance involves capturing the minimum required data, ensuring accuracy, and removing data that is no longer required. These measures are likely to improve the overall reliability of the organisation databases.

Compliance demands identifying Personal Information and taking reasonable measures to protect the data. This will likely reduce the risk of data breaches and the associated public relations and legal ramifications for the organisation.

Non-compliance with the Act could expose the Responsible Party to a penalty of a fine and / or imprisonment of up to 12 months. In certain cases the penalty for non-compliance could be a fine and / or imprisonment of up 10 years. 

Image with thanks to www.saica.co.za