Thoughts Of The Week
Earlier this month, in a notice published in the Government Gazette, it was confirmed that the monetary jurisdiction of Small Claims Courts will be increased to R20 000 from 1 April 2019 onwards.
According to the Justice and Constitutional Development Deputy Minister, John Jeffery, the new threshold is expected to go some way towards addressing a growing tendency for plaintiffs to ‘abandon parts of their claims’ to bring them within the existing R15 000 jurisdiction of the Small Claims Courts.
These forums remain available for civil claims only and where parties represent themselves. Often, parties obtain legal advice in order to assist them to properly present their claims in this Court.
You can read more here.
Contact STBB for further assistance.
Two investors bought properties in a sectional title scheme, specifically for purposes of generating an income from short-term letting. When the properties were purchased there was no prohibition on short-term letting.
However, at an annual general meeting held during 2017, a special resolution was adopted by members of the sectional title scheme in terms of which the scheme’s conduct rules were amended to restrict members from letting out their respective units on a short-term basis (less than 3 months).
The two investors lodged a dispute with the Community Schemes Ombud Service and inter alia argued that this amendment to the scheme’s conduct rules, infringed upon their constitutionally protected rights. What was the outcome?
In an order handed down on 10 August 2018, the adjudicator stated that “the important question is whether a ban on short-term letting falls within the ambit of a Conduct Rule amendment”. In answering the aforementioned question, the adjudicator explained that, “a ban on short-term letting is an amendment on how a property is used and this has an effect on constitutional rights and property rights of an owner. This is a matter that should be dealt with at town planning and/or zoning use level”.
Accordingly, the adjudicator arrived at the conclusion that “a ban on short-term letting by way of the amendment of the Conduct Rules, instead of by way of Management Rules, was improper”, and therefore the first and second claimants were permitted to continue short-term letting their respective units.
In obiter the adjudicator explained that short-term letting cases remain a contentious point which had led to much discussion between adjudicators at the Community Schemes Ombud Service and that it would be beneficial for the High Court to deliberate upon a short-term letting matter in order to provide clarity on this contentious point.
Contact Martin Bey or Wesley Graham for assistance with short-term letting disputes.
When you make a bequest in your will to a beneficiary who is married in community of property, the inheritance will fall into the joint estate of that beneficiary and his or her spouse. If a testator seeks to avoid this result, the will must expressly state that the bequest is excluded from that beneficiary’s joint estate which he or she shares with his or her spouse.
Such an exclusion will however not protect the beneficiary from a claim by creditors of his or her spouse. The court in Du Plessis v Pienaar NO and others held that where a person in a marriage in community of property incurs a debt, his or her spouse is also liable for that debt. This means that the creditors of the beneficiary’s spouse will be entitled to bring a claim against the joint estate, as well as against such a beneficiary’s separate property, including an inheritance, in seeking settlement of their claim.
Contact STBB for assistance in the drafting of your will.
Last month, the Durban High Court granted a father the right to insist that his particulars are inserted on the birth certificate of his five-year-old son, born out of wedlock. The facts showed that the father was devoted to his son and committed to playing a meaningful role in his life. The Court has a duty to determine what is in the best interests of the child. The Judge found that “a name is an important aspect of identity and personality”. Judge Jacqui Henriques ordered that the child’s surname must be double-barrelled on the birth certificate to give recognition to both his birth names. She stated ‘the alteration of his name can only be in the best interests of the child… a double-barrelled surname recognising both parents and their commitment to him can hardly be said not to be in his best interests.’
This is an important step forward in broadening the rights of unmarried fathers.
Contact STBB should you require assistance in this regard.
The Department of Labour yesterday announced the wage increases for all domestic workers, effective from 3 December 2018, as follows:
Those working more than 27 ordinary hours per week:
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Those working 27 ordinary hours or less per week:
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Contact STBB for further assistance.
The Sectional Titles Schemes Management Act obliges the body corporate to maintain a scheme’s common property. Owners are in turn required to repair and maintain their sections.
Is the body corporate, as a result, automatically responsible to arrange and pay for the repair of damage to an owner’s section if it results from some defect or failure in the common property? The short answer is no, as the Act does not automatically hold the body corporate liable for consequential (ensuing) damages.
An owner may therefore request the body corporate to pay for the damages caused by defects arising out of the common property, but if the body corporate refuses to pay, the owner must then proceed to either enforce their common law rights, or the owner may consider filing an application with the Ombud against the body corporate for an order requiring the them to have the repairs and maintenance carried out.
When X, recently divorced, approached her conveyancer with an instruction to register transfer of the property that was awarded to her in the divorce settlement, she was speechless when she was advised that transfer duty will be payable. This because she was advised previously that the Transfer Duty Act exempted the transfer of property to a divorced spouse in terms of a divorce order.
The advice was correct. However, what differentiated X’s position was the fact that the property was registered in the name of a trust. The exemption in the Act applies only where the one spouse held sole ownership in the whole or a portion of the property, which is then acquired by the other divorced spouse in terms of the court order. In X’s instance, transfer duty was therefore payable by her as her divorced spouse was not the owner or co-owner, but the trust.
In addition, from SARS’s point of view, the ‘transaction’ occurred on the date that the divorce order was granted and X is therefore liable to pay transfer duty within 6 months after that date, failing which a penalty on the outstanding amount at a rate of 10% per year becomes payable. Make sure to ventilate all the details of your settlement with your divorce attorney, so that you are aware of the implications.
Contact our Family Law team at email@example.com.
As we approach the festive season, remember to pay close attention to the dates inserted in agreements for the sale or purchase of immovable property.
It is prudent to arrange that the due dates for payment of a deposit, obtaining bond approval and guarantees do not fall too close to public holidays as many people are on leave. In addition, role-players such as the deeds office, SARS and municipalities either close or operate with a skeleton staff and suggested registration dates should take these factors into account.
Attention to these details will manage the expectation of all the parties concerned and may prevent the failure of agreements due to the non-compliance with the due date obligations.
For assistance, contact you STBB conveyancer.
In terms of our common law, spouses have a reciprocal duty to support each other during their marriage and this includes financial support. This duty ends when the marriage is terminated either by death or divorce.
In terms of the Maintenance of Surviving Spouses Act, a surviving spouse may claim reasonable maintenance from a deceased spouse’s estate.
The Divorce Act, on the other hand, makes provision for a spouse to claim maintenance on divorce. This is not an automatic right to spousal maintenance post divorce and the Divorce Act states that a court may grant an order for spousal maintenance. The factors that the court will take into account when determining whether or not a maintenance order should be made include, the financial means, earning capacity, financial obligations, needs and age of both spouses, the duration of the marriage, the spouses’ standard of living prior to the divorce, their conduct relating to the breakdown of the marriage and any other factor that the court may deem relevant.
For more information please contact the STBB Family Law Department.
The ABC Family Trust sells a sectional title unit to X. The trustees of the trust, authorised by valid Letters of Authority issued by the Master of the High Court, are A and his children B and C. A signed the agreement and provided the Letters of Authority and trust deed to the estate agent and purchaser, X. Trustee A subsequently reconsiders and, citing some dispute with the body corporate for thwarting efforts to obtain the levy clearance necessary for transfer, alleges that the Trust is unable to proceed. X consults his attorney as he believes the Trust is in breach.
Scenarios similar to the above arise often in practice. The problem faced by X is that a Trust may only act through its trustees and as allowed by the trust deed. One trustee cannot act alone without the others. Unless A was authorised, in a written resolution granted by all the trustees beforehand, to sign the sale agreement, then the sale agreement was void. Depending on the circumstances, the purchaser may seek other remedies.
Speak to your STBB conveyancer for assistance in all your property transactions, before putting pen to paper.