The advantages of a modern living-trust-centred estate plan

In many countries, there is what is called a durable power of attorney. Making a durable power of attorney for finances ensures that someone you trust will have the legal authority to take care of financial matters if you become incapacitated and unable to handle things yourself. (The term “durable” simply means that the document remains effective if you become incapacitated. A nondurable power of attorney would automatically end if you are no longer of sound mind). The tasks may range from paying bills to handling insurance and filing taxes. 

South Africa has not yet accepted that principle. Accordingly, if you appoint an agent on your behalf to manage some or all your affairs in terms of a general or special power of attorney, the rights that the agent enjoys under such power of attorney will lapse if you become incapacitated or die. 

Incapacity may be temporary (for example if you have a stroke that you recover from or are badly injured in a motor collision) or permanent (for example if you never recover from your stroke or suffer from dementia or other mental impairment). 

The consequence of this is that if you are deemed to be unable to manage your financial affairs your family needs to approach the High Court, at huge expense, to appoint a curator to act on your behalf. Curatorship proceedings are not only complicated and expensive, but they put private matters on public record – rarely a desirable outcome. 

If the concept of a durable power of attorney does not apply in South Africa and if South African powers of attorney lapse on your death or incapacity, what is your option? 

Approach your lawyer to implement a modern living-trust-centred estate plan. He or she will advise you how to take best advantage of the planning talents of your accountant, financial planner and stock broker, to manage your affairs, not only during your period of disability. This would enable you to have a say in the control of your property while you are alive; provide for you, your spouse, and your children, without any curator proceedings, if you become sick, injured or disabled; provide for your loved ones in exactly the way you want after you die and make absolutely sure you don’t take your family public and make a lot of strangers richer at your expense or the expense of your loved ones.

 

CCTV cameras at home and the right to privacy

 

A client asked: What is the law on CCTV installation on a private property in relation to privacy and the law? I have a situation where a camera has been set such that 85% of what is being captured is in my yard.

Privacy issues 

You have the right to protect your property and this can be done by using a CCTV system where it is necessary, such as a security measure. However, out of respect for your neighbour, CCTV systems should be used in a responsible way to respect the privacy of others. 

The problem arises when you cross the line between monitoring your own property and somebody else’s. If your camera is angled in such a way that it includes coverage of your neighbour’s yard or driveway, then complaints about invasion of privacy will follow. 

CCTV monitoring is acceptable and even welcomed in public places, but it is unreasonable to be spied on in your own private property.  

The law 

The complaints about invasion of privacy are not specifically protected in law. Our constitution gives a citizen the broad right to privacy. However, there is nothing illegal, per se, about home surveillance in South Africa.

South Africa’s Protection of Personal Information Act which seeks to regulate the Processing of Personal Information, does not apply to purely household or personal activity.

Clearly, the common law would protect you, regarding your neighbour’s CCTV cameras, when:

·         The surveillance is of a criminal or voyeuristic nature;

·         The area being monitored is one where someone would reasonably expect to have privacy, such as a bedroom or bathroom;

·         The surveillance is of such intensity that it is creating a nuisance, preventing someone from the enjoyment of their property;

·         The installation of the cameras is the result of a neighbourhood dispute involving threatening behaviour, in which case an apprehended violence order may call for the cameras to be removed.

The solution

Use some basic common sense to avoid alienating your neighbours and possibly being taken to court.

When you install CCTV cameras, make sure that:

·         You are transparent to those around you when installing your CCTV system, by informing your neighbour(s) about your system;

·         They are only monitoring your property;

·         If your camera is pointing directly at a neighbour’s property, you should take steps to reposition it to avoid complaints or in some cases accusations of violation of privacy or harassment;

·         If they are overlooking the street, there is a sign informing people they are being monitored;

·         They are not monitoring areas where people could reasonably expect privacy;

·         The stored information is not used for any other purpose than protecting your property;

·         If you record images, regularly delete the recordings and do not keep them for longer than is necessary for the protection of your property;

·         If your system captures information of an incident, retain that information as it could be use by the police to aid an investigation.

 

What can I do if I get bumped off my flight due to overbooking?

By Dean Brainin.

Overbooking refers to when the total number of seats booked by customers for a specific flight exceeds the total number of seats available on that flight. But why does this happen?

It is a common practice in South Africa and worldwide for airlines to deliberately overbook flights. Airlines do this to ensure that when the aeroplane takes off, there are no empty seats available. Having a fully occupied aircraft means maximizing profits, and overselling tickets is the best way to achieve that. Moreover, overbooking can help the airline keep costs low.

According to Chris Zwiegenthal, the Head of the Airlines Association of Southern Africa, “the overall aim of overbooking is so airlines can maximize revenue around load factors as well as avoid having empty seats that are either not used due to no-shows as well as being able to accommodate passengers on standby who urgently need to travel”.

Worldwide, airlines have conducted their research on overbooking flights from a financial perspective. In turn, airlines overbook flights as they are almost certain that a percentage of passengers will not show up for their flight and, further, will not inform the airline of their cancellation. Moreover, airlines expect several passengers to board their plane, coming from a connecting flight that may have been delayed or cancelled. For this reason, airlines sell more tickets than there are seats available to guarantee revenue.

The question is then, what happens if all the passengers arrive, the flight is overbooked, and I get bumped off?

For a start, consumers in South Africa are fortunately protected in these situations by the Consumer Protection Act 68 of 2008 (“The CPA”). The CPA protects consumers against over-selling and overbooking goods and services. Section 47(2)(a) of the CPA expressly states that:

“A supplier must not accept payment or other consideration for any goods or services if the supplier has no reasonable basis to assert an intention to supply those goods or provide those services”.

The CPA prohibits the overbooking of flights because a supplier or service provider may not accept payment of goods or services that do not exist.

So, what are your rights in terms of the CPA?

If you have been bumped off your flight due to an airline overbooking, Section 47(3)(a) and (b) of the CPA outlines a consumer’s right of recourse and sets out what the supplier must do and is as follows:

“The supplier must:

(a)   Refund to the consumer the amount, if any, paid in respect of that commitment or reservation, together with interest at the prescribed rate from the date on which the amount was paid until the date of reimbursement; and

 

(b)   In addition, compensate the consumer for costs directly incidental to the supplier’s breach of the contract, except to the extent that subsection (5) provides otherwise.

It is important to calculate your costs incidental to the airline overbooking your flight accurately and keep documented proof thereof if you intend to institute a possible damages claim against the airline.

Suppose the airline bumped you from your flight because of overbooking but can offer you an alternative flight shortly after that. In that case, you may not unreasonably refuse such a request, and doing so will result in you having difficulty getting a refund.

It is clear that despite the CPA prohibiting airlines from overbooking flights, it remains a common practice amongst airlines to maximize revenue. Suppose the airline does not offer you an alternative plan or refuses to furnish compensation in any form. In that case, you should seek the assistance of an attorney to enforce your rights and ensure you are not taken advantage of by the airline. 

Maintenance and major children – when does the duty to support children end?

 

By Sasha Goldstein Attorney

In South African law, the term maintenance covers a parent’s duty to support their child/children. The responsibility extends to, among other things, accommodation, food, clothes, medical and dental attention, and all other necessities of life on a scale in line with the parents’ social position, lifestyle, and financial resources[1].

South African law defines a child as a minor or a person under 18 years old. Once a child reaches the age of majority, 18 years of age, they are no longer considered a child/minor and are now an adult in terms of the law. However, most parents ask when they must stop paying maintenance for their child. For example, surely a 19-year-old, who is in her first years of studying at a university, taking a gap year, or has just entered the job market, but still living at home, cannot be deemed self-sufficient?

The law says that a parent’s duty to support a child does not cease when they reach a particular age but usually does so when they become self-supporting[2]. What does our law say if there is no current maintenance order in place, and a parent wishes to seek maintenance from the other parent for a child who has reached the age of majority? The major child has the onus to claim maintenance from the non-paying parent. In other words, the adult child must take their parent to court unless there already is a court order in place which the non-paying parent has breached.

Section 6 of the Divorce Act 70 of 1979 concerns safeguarding children’s interests when their parents divorce. It refers to ‘provisions made or contemplated with regard to welfare of any minor or dependent child of the marriage’ and provides that a court granting a decree of divorce may make any order it may deem fit in respect of the maintenance of a dependent child of the marriage[3]

The duty to maintain children may further, in certain circumstances, include the duty to provide tertiary education. However, this will depend on the parents’ financial circumstances and the child’s academic aptitude[4].

Further, the fact that a child may be capable of supporting themselves does not preclude the parent’s duty to still maintain such child. The fact that a child is working does not mean that he or she is necessarily completely self-supporting, in such circumstances continued but reduced support / maintenance may be necessary in accordance with the family’s standard of living.[5]

In addition, when a child ceases to be self-supporting for reasons such as ill health or disability, the duty of support is revived[6]

Thus, in summary, the answer is that a parent’s duty to pay maintenance for their children continues until the child is entirely self-sufficient and not upon the child reaching the age of majority. However, should there be no court order for maintenance already in place, and a child who reaches the age of majority requires maintenance from a parent, the child must claim such maintenance from that parent directly. The other parent, whom the child most likely primarily lives with, cannot apply for maintenance on that major child’s behalf.

A child may approach the grandparents for financial help if his parents can’t pay maintenance.  See this article.

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[1] Voet Commentarius ad Pandectas 25 3 4; Van Leeuwen Censura Forensis 1 1 10 5; Du Toit v Du Toit (1991) 4 All Sa 716 (O), 1991 (3) SA 856 (O) 860, 861

[2] Sikatele v Sikatele (1996) 2 All SA 95 (TK)

[3] Clark, D. B. (2016). Handbook of the South African Law of Maintenance. Johannesburg: LexisNexis

[4] Clark, D. B. (2016). Handbook of the South African Law of Maintenance. Johannesburg: LexisNexis.

[5] Gliksman V Talekinsky (1955) 4 All SA 306 (W) 470

[6] Ex parte Pienaar (1964) 2 All SA 62 (T), 1964 (1) SA 600 (T)

CSOS dispute resolution procedures v a Court application

Do you live in a Community Living setup such as a Sectional Title Scheme, Homeowners Association or Share Block? 

There are advantages to community living, but disagreements invariably arise amongst neighbours relating to noise nuisance, pets, and the like. 

Until recently, if you could not resolve these difficulties amicably, you had to resort to the police, your local authority, or the courts to come to your assistance. 

The introduction of the Community Schemes Ombud Services Act (“the CSOS Act”) provides a “mechanism for the expeditious, informal and cost-effective resolution of community scheme disputes via an Ombud, who has been given wide inquisitorial powers whereby such disputes can be resolved as informally and cheaply as possible by means of qualified conciliators and adjudicators, without the need for legal representation, save in certain limited circumstances”. This quote is from Judge Sher in Heathrow Property Holdings No 33 CC and Others v Manhattan Place Body Corporate and Others (7235/2017) [2021] ZAWCHC 109 (1 June 2021) reported here. 

The Court heard an urgent application concerning the reasonableness of a body corporate’s conduct rule prohibiting short-term letting and the validity of the trustees’ decision to install a biometric access control system. 

The judge held that the application constituted an egregious abuse of the process of this Court. He concluded that the Applicants should have adopted the dispute resolution procedures established by the CSOS Act and not approached the Court. 

The Court disagreed with the Applicant’s argument that the Court had concurrent jurisdiction to hear a Sectional Title dispute and dismissed the application with an order for punitive costs. It found that the CSOS Act promoted quick and affordable access to justice to those who live in sectional title schemes which cannot afford to litigate in the courts. It concluded that: 

1.    Allowing litigants to proceed directly to a court instead of CSOS would undermine the administrative and quasi-judicial processes which have been provided for in the CSOS Act and would result in forum-shopping by better-resourced litigants; and

 

2.     Allowing litigants to bypass the mechanisms provided for in the CSOS Act to resolve disputes would enable them to avoid the conciliation process provided for by it. This would defeat the legislative purpose of having community scheme disputes resolved, if possible, by way of an informal, expeditious and cheap mechanism, instead of via the courts. 

Unhappy owners that live in a community scheme are advised not to approach a court instead of CSOS, save in exceptional circumstances.