Thoughts Of The Week
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.
Two Bills that will fundamentally impact South Africa’s property industry were expected to be passed by Parliament this year.
In September, the Portfolio Committee (Human Settlements) concluded its first stakeholder engagement meetings on the Property Practitioners Bill. A draft version hereof was first published in 2017 and a revised Bill was released in March of this year. The Bill seeks to, amongst other things, repeal the Estate Agency Affairs Act and to replace the Estate Agency Affairs Board with the Property Practitioners Regulatory Authority.
The window for commentary on the Electronic Deeds Registration Systems Bill closed on 5 October 2018. As its title states, the Bill seeks to introduce an electronic deeds registration system, specifically to ease registration of large volumes of deeds as necessitated by government’s land reform initiatives and to expedite the registration process in the deeds office.
STBB will update you as soon as the status of these Bills change. For more information, please contact us at firstname.lastname@example.org.
When a marriage terminates after a divorce, the reciprocal duties of support which existed during the marriage come to an end.
Neither spouse has an automatic right to maintenance after divorce. However, a court granting a decree of divorce has a discretion to order one spouse to pay maintenance to the other spouse until the latter’s death or re-marriage or for any other period (rehabilitative maintenance), if it deems it just to do so.
In exercising this discretion to order payment of extended maintenance, the court will consider certain factors, including but not limited to: the means of the parties, their earning capacities, their financial needs, their age, the duration of the marriage and the parties’ standard of living during the marriage.
Contact us at email@example.com for assistance in dealing with the question of whether you could pursue a claim for spousal maintenance upon divorce.
Recently the first ever property transfer transaction was registered in a deeds office in South Africa where the seller’s Power of Attorney to Pass Transfer was signed with an advanced electronic signature (AES).
What is an AES? It is a special ‘electronic’ signature (a scanned image of a handwritten signature, or ‘digital’ signature) which, in certain instances, may replace the traditional pen and ink manner to sign documents. In order to use such a signature on a document, one first has to have the AES accredited with an accreditation authority in South Africa.
Where a law specifically requires signature before a document will be considered legally valid, but does not specify that the signature must be in writing, the Electronic Communications and Transactions Act (ECTA) allows that an AES may be used. On the other hand, where a law requires a written signature, an AES will not suffice (eg, the assignment of copyright in terms of the Copyright Act, which that Act requires to be in writing).
Remember that agreements concluded in terms of the Alienation of Land Act are specifically excluded from ECTA and must therefore still be concluded by parties appending their written signatures thereto.