Thoughts Of The Week


Your will and your worldwide assets

In the past 50 years or so, people and capital have become more mobile and often, along with this new global citizenship, comes ownership of assets in foreign countries. South Africans with offshore assets should seek professional assistance to determine if they are exposed to a foreign tax and whether it would be prudent to draft a separate will for assets outside the country.

Question that often arise are:

1. Is it a problem if I only have one will in respect of my worldwide assets?
2. Are there any benefits to having a separate will in each country where I own assets?
3. Are there any concerns which I need to take into consideration when having separate wills?

Read the answers to these questions here.

For assistance please contact us at info@stbb.co.za.

NCA Amendment: Why so controversial?

The controversial National Credit Amendment Bill was signed into law last week. It provides for special debt relief measures for over-indebted consumers who earn R7 500 per month or less and whose unsecured debt does not exceed R50 000. These changes were intended to address instances where poor consumers are unable to access formal debt-relief processes.

The Amendment Act allows for a process whereby the individual can apply to the National Credit Regulator for intervention, without undergoing the full debt assessment process by engaging with creditors with the assistance of the a debt counsellor and subsequent application to court for approval of a debt restructuring plan. At the Regulator, a process of interventions will allow these consumers to restructure their debt to make repayments over a five year period, or to suspend credit payments in part or in full for up to two years. Finally the debt or a portion thereof can be extinguished if, after this period, the consumer is still unable to repay it.

The Banking Association South Africa (BASA) and other credit industry role players have raised a host of concerns, stemming from the fact that the law was passed without Parliament’s consideration of a socioeconomic impact assessment study conducted by BASA with the Department of Trade and Industry, or the contents of a petition submitted by the industry. These communications attempted to inform Parliament that, amongst other things:

consumers earning less than R7 500 are likely to be prejudiced as credit providers now have to identify this group as a risk, thereby doing away with sophisticated, individualised scorecards which would otherwise ordinarily have allowed them access to credit;
allowing the Regulator to expunge debt creates significant uncertainty for credit providers and this uncertainty is exacerbated by the fact that the Minister is empowered to adjust the gross monthly income and total unsecured debt thresholds currently listed;
the exclusion of ordinary, problematic debt that these consumers face (eg, municipal fees, water and electricity, school fees) should be investigated; and
that the Act creates inequality among consumers, in that a small number only will gain access to this favourable debt intervention solution.

BASA and others are considering approaching the courts to declare on the validity of the new Act and we will keep you updated of progress in this regard.

For assistance please contact us at info@stbb.co.za.

Thinking Of Eloping Or Hosting A Destination Wedding?

Eloping or having a ‘wedding for two’ are on the increase and for many it is now the preferred choice. What’s not to love about saying your “I do’s” before a select few on the white sand beaches of Mauritius whilst saving some bucks by incorporating your wedding and honeymoon into the stuff dreams are made of … but is the happy couple aware of the legal consequences of a marriage concluded outside South Africa?

The question whether the couple is legally married, in Mauritius or any other country, depends on whether the marriage procedure of that country was correctly executed and celebrated. But, if their home is still in South Africa, the patrimonial consequences will be determined by South African law and they will be considered married in community of property to each other by default, unless a prenuptial agreement was concluded before the wedding.

Don’t forget to speak to your attorney before you tie the knot!

For assistance please contact us at info@stbb.co.za.

One Wrong Does Not Justify Another

It is a well-established principle of our law that you may not take the law into your own hands. A landlord, for example, may not simply change the locks to premises rented in a dispute with the non-paying tenant; or a landowner change the codes to an electronic gate giving his neighbour access to a servitude road in a disagreement about the terms of use of the road.

In such instances, the mandament van spolie, or spoliation action, affords the person deprived of possession otherwise than through a legal process, the opportunity to apply to Court to have the property returned to him, without the Court looking at the merits of the case at that stage. All the plaintiff needs prove is that it was in peaceful and undisturbed possession of property and was deprived of that possession.

For recent case law where these principles were applied, see here or contact our offices on info@stbb.co.za should you require assistance.

Liable for the suretyship that your spouse signed for his company?

In commercial transactions it is common for one contracting party to require from the other to provide personal suretyship as security for the performance of the obligations under the agreement. Whilst the persons providing the suretyship often have no objection to signing the document in order to reap the benefits of the underlying contract, case law is rife with instances where the validity of the suretyship is attacked when the suretyship is enforced.

How? One arm of attack comes from ‘home’, in the instance where the surety is married in community of property. In such marriages, the law provides that spouses generally have equal powers, including with regards to incurring debts. However, the law does not provide free reign to any spouse acting on his own and imposes limitations where the well-being of the joint estate is involved. Section 15(2)(h) of the Matrimonial Property Act specifically provides that a person married in community of property may not, without the written consent of the other spouse, bind him- or herself as surety.

Section 15(6) of the same Act however creates an exception and allows such a spouse to sign a suretyship in the ordinary course of that spouse’s business, without the necessity to obtain spousal consent. A spouse married in community of property can therefore be bound to a suretyship even though he/she was unaware of the dealings of his/her spouse or disagreed.

What constitutes ordinary course of that spouse’s business? For example, signing a suretyship may not be in a surety’s ordinary business if he/she is a salaried employee, having no commercial interest in the business’ success or failure. However, a person who holds a number of non-executive directorships that are the principal source of their income may well, when executing a deed of suretyship for one of those companies, be acting in the ordinary course of his/her business.

The facts in Strydom v Engen Petroleum Limited are illustrative of the difficulties that can arise. Strydom, who was a director of a company, signed an unlimited personal suretyship in favour of Engen for the debts of the company to Engen. The company was later liquidated. Engen obtained judgment against Strydom in the High Court based on the suretyship. Strydom appealed the judgement to the Supreme Court of Appeal on the basis that he was married in community of property and his wife had refused her consent to him signing the suretyship. The appeal was unsuccessful, the Court concluding that Strydom was a director of the company and worked at the very core of the business. He was unable to show that the suretyship was not executed in the ordinary course of his business, trade or profession at the company and that section 15(6) did not apply. In other words, the suretyship was not invalid simply because his wife had not consented to it.

Different facts will be relevant in different situations, for example when the person is a salaried employee or non-executive director. Contact us on info@stbb.co.za should you require assistance.

Domestic Workers Victory

According to Statssa, South African households employ approximately one million domestic workers. As a vulnerable employee group, government has over the years developed labour laws to provide protection to these employees.

Although much has been done to include domestic workers in the scope of the Labour Relations Act, the Basic Conditions of Employment Act and the Unemployment Insurance Act, domestic workers employed in private households remained excluded from the Compensation for Occupational injuries and Diseases Act (COIDA) for compensation for occupational injuries and diseases.

In May this year, in the judgment in Mahlangu and Another v The Minister of Labour & Others, the High Court declared that s1(xix)(v) of COIDA is unconstitutional and invalid to the extent that it excludes domestic workers in private households from the definition of “employee”. The department is currently engaged in a legislative process to amend COIDA.

For assistance with employee matters, contact our Labour Law Team at info@stbb.co.za.

To Appeal Interim Relief (Rule 43) In Divorce Matters

A ”Rule 43 application” is an application for interim (provisional) relief in divorce matters. It allows a party to a divorce to seek interim relief from the court in respect of maintenance, care and contact with a child and a contribution towards his/her legal costs.

Were such an interim order to be appealed, the Rule 43 Order would effectively be put on hold pending the outcome of the appeal. One consequence would be that if any maintenance provisions were included in the order, these could not be enforced (yet). This would clearly be to the detriment of the child and the person in whose favour the award was made.

In the recent judgement of S v S, the Constitutional Court found that section 16(3) of the Superior Courts Act, which prohibits an appeal against a Rule 43 Order, does not infringe any constitutional rights of a party. Rather, allowing such an appeal would contradict the purpose of such an application.

For more information, contact our Family Law Department.

Can I Change My Mind After Signing A Contract?

John is eager to secure accommodation at university for his daughter and concludes a lease agreement for a flat near campus. Before commencement of the academic year, she has a change of heart and decides to pursue studies at a different institution. What are John’s rights?

While it happens that a contracting party’s needs may change after entering into a contract, it may be very difficult for John to resile from that commitment. The point of departure is that a party may be held to the agreement for the duration thereof, alternatively his/her request to resile therefrom (referred to as a repudiation or anticipatory breach) may be accepted by the innocent party, subject to the innocent party’s rights to claim damages as a result thereof.

The agreement itself may, in certain circumstances, come to John’s aid. This may take the form of a rouwkoop clause, or cancellation by notice; however, these “outs” are normally linked to a fee payable to the innocent party. Certain legislation, such as the CPA and NCA, has also introduced “cooling-off” periods which allow John to walk away (when applicable) within a short time after concluding the agreement. These are deemed to form part of a specific set of agreements; however, these “cooling-off” rights have very limited application and need to be considered before concluding agreements.

Whatever the reason that you may wish to get out of a contract or are faced with a situation where another party seeks to resile from a contract concluded with you, your first port of call should be to communicate with your attorney for assistance.

Contact STBB for assistance on www.stbb.co.za.

Suretyship and a Spouse’s Consent

ARE THERE DEFENCES TO LIABILITY UNDER A SURETYSHIP IN A MARRIAGE IN COMMUNITY OF PROPERTY?

Strydom executes an unlimited suretyship in favour of Engen for the debts incurred by Soutpansberg Petroleum, a company of which he was a director. He was married in community of property at the time, but his wife is not involved in the transaction as it relates to her husband’s ordinary work and business. However, when Soutpansberg is subsequently liquidated, Strydom denies liability for Engen’s claim, arguing that the suretyship is invalid due to the absence of his wife’s consent.

The Matrimonial Property Act states that a spouse who is married in community of property must have the written consent of the other spouse to bind himself/herself as surety. The prohibition does not apply where the spouse who signs the suretyship did so in the ordinary course of that spouse’s profession, trade or business.

In the above matter, finally decided in the Supreme Court of Appeal, the Court noted that it was a factual enquiry to examine whether an action was performed in the ordinary course of one’s profession, trade or business. Where the business was carried on through a company, the factual question was whether Strydom’s involvement in the company business was his business, and whether the execution of the suretyship was in the ordinary course of his business tasks (and not that of the company). As it was shown in Court that Strydom worked at the core of Soutpansberg’s business and that his activities there constituted his business, the exception applied and the suretyship was not invalidated by the absence of his wife’s consent.

Take advice when signing a suretyship to make sure what your and your spouse’s liabilities are. Contact STBB for assistance on www.stbb.co.za.

The Tenant’s Deposit

WHILST PAYMENT OF A DEPOSIT IS NOT A VALIDITY REQUIREMENT, CERTAIN RULES APPLY IF A DEPOSIT IS AGREED UPON IN A LEASE

In lease agreements relating to residential property, the landlord is obliged by the Rental Housing Act to place the amount received as a lease deposit in an interest-bearing account held with a financial institution. The interest rate applicable to this account may not be less than the rate applicable to a savings account at a financial institution. The tenant may request a statement of the interest earned on the money at any time during the tenancy.

If the deposit is paid to the account of a registered estate agent on behalf of the landlord, it must similarly be invested; the deposit and any interest thereon is then dealt with in accordance with the provisions of the Estate Agency Affairs Act.

STBB Meerkats

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