Thoughts Of The Week


Maintenance for a Spouse After Divorce

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 info@stbb.co.za for assistance in dealing with the question of whether you could pursue a claim for spousal maintenance upon divorce.

Electronic Signatures and Deeds Registration

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.

Why Antenuptial Agreements are Important

Our law determines that if you get married without having entered into an antenuptial agreement before the wedding, you are automatically married in community of property. Accordingly, the assets and liabilities of both spouses become part of their joint estate, with shared responsibilities and decision-making.

Simply agreeing to the contrary with a spouse may constitute a valid agreement between the spouses, but will not be enforceable against third parties.

If spouses want to address the risk of exposure to each other’s long term financial well-being, it is necessary to do so before the marriage, in an antenuptial agreement.

Contact us at info@stbb.co.za for assistance in drafting and registering an antenuptial agreement for you.

Water for Cape Town

Towards the end of June this year, the City of Cape Town promulgated amendments to its Water By-law. These do not replace the current Level 6 water restrictions, but are in addition to present water usage rules. Many of the amendments deal with technical aspects of installations and the City’s oversight of plumbers.

From the property owner and tenant’s point of view, the following are notable:

  • Landlords must record individual consumption in residential units let in a multi-tenant complex/block of flats, and inform the City of any contraventions.
  • In new developments, water conservation and demand management systems, or alternative water systems, must be installed. Prior approval of the City will be necessary.
  • Potable water storage tanks must be impervious to sunlight to prevent the growth of bacteria.
  • No cross-connection may exist on private property between potable and non-potable water systems.
  • No irrigation of gardens is allowed between 09:00 and 18:00, including from boreholes and well-points.
  • Toilet cisterns and shower head flow maximum capacity has been reduced to 6 litre cisterns for toilets (was 9 litres), and water flow from shower heads is limited to 7 litres/minute (was 9.5 litres/minute). Owners need not replace these immediately if they do not conform, but when renovations or alterations are considered, the new installations must be compliant.
  • All pools must be fitted with a cover to avoid evaporation when not in use.
  • Where renovations trigger a building plan approval process, full details of any water conservation and demand management system or alternative water systems must accompany the building plans.

The Water By-law and Amendment can be viewed here.

Contact STBB should you require a detailed summary of the current provisions, including the Level 6 restrictions.

Offshore Property and South African REITs

The South African listed property sector has exposure in more than 25 countries. 45% of the FTSE/JSE SAPY Index earnings come from outside South Africa and over 50% of listed property in SA is exposed to offshore markets.

To date, no SA real estate investment trust (REIT) has achieved true global exposure i.e.: being invested in all the major global markets in the world. Some REITs do, however, have large representative businesses in specific markets, for example, NEPI Rockcastle is the largest real estate firm in Central and Eastern Europe (CEE) and Growthpoint Properties Australia is the 11th largest REIT on the ASX.

Our REIT sector had a poor showing in terms of overall performance in the first quarter of 2018. According SBG Securities, global monetary policy shifts in developed markets sparked a broad sell-off in emerging markets.

For more information on the above, please contact STBB.

What Happens if I Terminate my Engagement?

Terminating an engagement amounts to a breach of promise. Claims for breach of promise originated in the common law, which recognised that an aggrieved party had a claim in both the law of contract and the law of delict. Previously, where a person broke off an engagement, the aggrieved party could claim for damages suffered (which described the hurt and humiliation endured by the aggrieved party) and for the financial loss suffered in preparation for the wedding.

The 2010 Supreme Court of Appeal case of Van Jaarsveld v Bridges shifted the way in which our Courts view breach of promise actions. It is now accepted that a party may not institute a delictual claim for sentimental damages suffered. Instead, a party may only claim for actual expenses incurred in preparation for a wedding. Furthermore, the claim only goes so far as to place the innocent party in the same position that he or she would have been in, had the engagement not been entered into, and not in the position he or she would have been in had the parties gone through with the marriage.

The Courts have indicated that each case must be determined considering the merits of the matter.

For more information, please contact us on info@stbb.co.za

Deposits in Sale Agreements of Immovable Property

To bring about a valid and binding agreement, it is not a legal requirement that a purchaser pays a deposit. However, where a purchaser puts down an amount as a deposit, it generally signals financial ability and a commitment to purchasing the property.

The agreement should clearly stipulate whether the deposit is to be paid to the appointed conveyancers or the estate agent. The agreement must also clearly stipulate that the deposit must be held in a separate interest-bearing account and that, pending registration of transfer, interest on the amount accrues for the benefit of the purchaser. Failure to do this will oblige the conveyancers or estate agent to pay the interest to their respective fidelity funds.

For assistance in all aspects of your agreement to buy or sell immovable property, contact STBB before you put pen to paper.

Addressing Maintenance in Arrears

If you have a maintenance claim in terms of your Divorce Order, you can still enforce the Order. Furthermore, you can bring an application for the recovery of the arrear maintenance due to you.

In order to recover the arrear maintenance, it is possible to have a writ of execution issued whereby the defaulting party’s movable assets are attached and sold in execution. Most assets can be attached, including any debt which is owing to the defaulting party. It is also possible, under certain circumstances, to apply for an emolument attachment order in terms of which the defaulting party’s employer is ordered to pay the monthly maintenance to you by deducting it from the defaulting party’s salary. Lastly, it is now also possible to have the defaulting party reported to the credit bureau and blacklisted.

If the defaulting party is intentionally and wrongfully failing to pay maintenance, it is possible to lay a criminal charge. The defaulting party may then be prosecuted and convicted of a criminal offence. Possible sentences include a fine or imprisonment of up to one year, or both.

Contact us on info@stbb.co.za should you have any queries.

Foreigners continue Their Pursuit of South African Property

Contributed by Hayley Ivins-Downes, Lightstone

Many postulated that foreign ownership in the local property market would decrease this year, however, an analysis of current foreign ownership in South Africa shows an increase of 42% in January 2018 compared to the same period in 2017.

Gauteng and Cape Town are at the top of the purchasing pile; Cape Town due to its cosmopolitan ambience and multi-cultural inclusiveness, and Gauteng because of the thriving industrial and business hubs which offer many employment opportunities. Transactional data shows that 83% of all foreign purchases are made in these two provinces. A surprising development is that Gauteng is becoming increasingly popular and the Eastern Cape is also becoming more alluring to foreign buyers. Read more

Contact STBB for any queries or for any assistance required.

Co-owning a Property and the Bond

Whether for financial or other reasons, people often invest in property as co-owners, whereby each owns an undivided share in the property. Many such buyers take the sound precaution to draw up a co-ownership agreement.

Buyers in this situation should not forget that no matter what they agree to with regards to split in shares in the property, maintenance, occupation or income from the property, their agreement will not bind third parties such as banks or municipalities.

For example, the bank that grants the home loan will generally insist that both (or all co-owners) agree to be ‘jointly and severally’ liable to repay that loan. This allows the bank to recover the debt from all of the debtors in proportion to their shares or, if necessary, to recover the whole amount from any one of them. So, if one co-owner should fall on hard times or stop paying for any reason, the others will be required to make up the difference.

For assistance or advice in such transactions, contact your STBB conveyancer before putting pen to paper.

STBB Meerkats

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