CAN BREAKING-OFF AN ENGAGEMENT PROMPT LEGAL ACTION?

Once a couple has become engaged, you could say that they have concluded a verbal contract to get married. From that point, up until the marriage, the couple would be committed to getting married, as well as the planning and preparation leading up to it. However, in some instances, one of those in the relationship might decide to break off the engagement. This might seem unimportant, but what if the couple had gone to great lengths to plan the wedding and even went as far as changing lifestyles in the expectation of getting married. Would the person being left behind be able to sue for damages lost?

Does our law mention engagement?

Our common law has, over the years, recognised the principle that the aggrieved party has a claim for breach of promise. Traditionally this claim comprises two parts, namely:

  1. The delictual claim which the aggrieved party would have under the action injuriarum for contumelia, in other words, damages for the humiliation caused as a result of the break-up of the relationship; and
  1. The contractual claim for the actual financial loss suffered by the aggrieved party as a result of the break-up of the relationship of the parties.

In the Supreme Court of Appeal case Van Jaarsveld vs Bridges (2010), it was found that no claim in South African law exists other than actual expenses incurred in the planning and preparation of the marriage.

The judgement draws attention to a court’s right and more importantly, duty to develop the common law, taking into account the interests of justice and at the same time to promote the spirit of the Bill of Rights.

ES Cloete vs A Maritz (2013) WCH

The question whether or not the claim for breach of promise is a valid cause of action in South African law was once again considered in the Western Cape High Court. In this Court, Judge Robert Henney was the presiding Judge in the matter of ES Cloete vs A Maritz.

Miss Cloete claimed that Mr Maritz proposed formally to her in Namibia on the 9th February 1999 with an engagement ring, and she accepted. The relationship was turbulent and a decade later Maritz called off the engagement and the intended wedding. Cloete instituted action against Maritz and alleged that Maritz’s refusal to marry her amounted to a repudiation of the agreement which they had reached 10 years earlier. In his judgment, Judge R Henney said: “Clearly, to hold a party accountable on a rigid contractual footing, where such a party fails to abide by a promise to marry does not reflect the changed mores, morals or public interest of today.”

The judge also said: “As pointed out by Sinclair, The Law of Marriage Vol 1 (1996), to hold a party liable for contractual damages for breach of promise may in fact lead parties to enter into marriages they do not in good conscience want to enter into, purely due to the fear of being faced with such a claim.”

Conclusion

Divorce, which in earlier days was only available in the event of adultery or desertion, is now available in the event of an irretrievable breakdown of the marriage. There is no reason why a just cause for ending an engagement should not likewise include the lack of desire to marry the particular person, irrespective of the ‘guilt’ of the latter.

Note to attorneys

  • See Cloete vs Maritz (6222/2010) [2013] ZAWCHC 69 (24 April 2013);
  • Van Jaarsveld vs Bridges (344/09) [2010] ZASCA 76; 2010 (4) SA 558 (SCA); [2010] 4 All SA 389 (SCA) (27 May 2010).

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

HOW TO EVICT AN ILLEGAL TENANT

Landlords who have tenants that they believe are occupying their premises illegally may not forcefully remove such tenants. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (No. 19 of 1998) provides for the prohibition of unlawful eviction and also provides proper procedures for the eviction of unlawful occupiers.

According to the Act:

l no one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property;

l no one may be evicted from their home, or have their home demolished without an order of court made after considering all the relevant circumstances;

l it is desirable that the law should regulate the eviction of unlawful occupiers from land in a fair manner, while recognising the right of land owners to apply to a court for an eviction order in appropriate circumstances;

l special consideration should be given to the rights of the elderly, children, disabled persons and particularly households headed by women, and that it should be recognised that the needs of those groups should be considered;

Procedure regarding evictions in terms of the PIE Act:

  1. According to the Consumer Protection Act (CPA), to cancel a fixed-term lease you must give the tenant at least 20 business days’ notice to rectify a material breach of the lease, failing which the lease will be cancelled.
  2. After 21 days, you can send the tenant a letter to cancel the lease. The letter should state that the tenant is now deemed to be occupying the property unlawfully and that he or she must vacate the premises by a specific date.
  3. If the tenant/occupier has not left the premises by the date mentioned in the letter of cancellation, then your lawyer can lodge an eviction application, which includes seeking the court’s permission to serve a notice of motion on the occupier.

References:

  • Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (No. 19 of 1998), South Africa
  • “How to evict a tenant (lawfully)”, Mark Bechard, Personal Finance, IOL. https://www.iol.co.za/personal-finance/how-to-evict-a-tenant-lawfully-2059984

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

DETERMINING THE GROUNDS FOR INFORMED CONSENT

If a person gives consent without acknowledging, understanding and considering their rights beforehand, is their consent legal and permissible in court? In eviction proceedings, it is questioned whether the granted eviction order may be cancelled after the unlawful occupiers had allegedly consented to it.

Occupiers of erven 87 & 88 Berea v Christiaan Frederick De Wet N.O.

A block of flats, Kiribilly, situated on erven 87 and 88 in Johannesburg was unlawfully occupied by 184 residents consisting of low income earners and unemployed occupiers, where some occupied the residence for a period of 26 years.

The said property was purchased from M L Rocchi, whose attorneys served the unlawful occupiers a letter notifying them of the termination of their right of occupation. The occupiers approached Mr Ngubane to speak on their behalf, and he confirmed with the court that the matter had been settled, as the respondents had been informed.

The High Court granted an order, which was allegedly agreed upon by both parties, to have the occupiers evicted from the property. The question is whether the order is bona fide based on the nature of the consent.

Legislation

Contesting the order’s legal validity, the applicants submitted that, even if the consent was legally valid, the Court was under constitutional and statutory duties to provide that the eviction would be just and equitable.

Respondents submitted that the applicants failed to provide a defence as to the entitlement of remaining in occupation of the property, thus making the order just and equitable, as stipulated by Section 4(8) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act which says, “If the court is satisfied…that no valid defence has been raised by the unlawful occupier[s], it must grant an order.”

Validity of eviction order based on consent

For consent to be legally effective, it must have been given by the applicants freely and voluntarily with the full awareness of the rights being disregarded. Given that the applicants were not aware of their rights, the factual consent that they allegedly gave was uninformed, therefore not legally binding. Because all information with regards to the conditions of the occupiers was not presented to the courts, the consideration of all relevant factors is disabled, rendering the order invalid. Above all, no information was given as to where the unlawful occupiers would go after the eviction.

Conclusion

In a matter where there is a person claiming to speak on behalf of illegal occupiers in a court appearance, any agreement that s/he has made is not binding to the occupiers because s/he is not the legal representative, nor an occupier. Any statements he makes in court are legally inconsequential, and thus nullified as giving informed or legal consent.

Reference:

  • Occupiers of erven 87 & 88 Berea v Christiaan Frederick De Wet N.O. [2017] ZACC 18

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

THE COMPULSORY ROTATION OF AUDITORS

Every public and state-owned company has to appoint an auditor and a company secretary. However, in terms of section 92 of the Companies Act, 2008, the same individual is not allowed to serve as the auditor or designated auditor of a company for more than 5 consecutive financial years.

What does this mean for my company?

  1. If an individual has served as the auditor or designated auditor of your company for 2 or more consecutive financial years, and then ceases the position, the individual may not be appointed again as the auditor or designated auditor of the company until after the expiry of at least two further financial years.
  2. If your company has appointed 2 or more persons as joint auditors, you must manage the required rotation in a way that all of the joint auditors do not relinquish office in the same year.

Despite the strict requirements for public and state-owned companies, it is not compulsory for private or personal liability companies to appoint an auditor, unless the company is required to produce audited financial statements.

Is this for the better?

It is understood that the external audit function is an activity of public protection and provides credibility to financial statements and assurance to investors. However, auditor rotation could lead to additional costs to companies, as the new auditor would be required to perform additional procedures on the opening balances of their new client.

In some areas, it could also impact negatively on the availability of auditors, as some towns only have a limited number of registered auditors. Auditors practicing as sole practitioners will also be affected, and could lose long-term clients unless they bring in another registered auditor and expand their practice.

References:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

PLANNING YOUR ESTATE AS NEWLYWEDS

For newlyweds, one of the most important tasks to attend to is estate planning. The estate planning will depend on what the couple wants and what form of marriage they are in. It is therefore important to keep the following in mind when planning the years ahead together.

Marriage in community of property

There is a joint estate, with each spouse having a 50 percent share in each and every asset in the estate (no matter in whose name it is registered);

  1. In the event of the death of one spouse, the surviving spouse will have a claim for 50 percent of the value of the combined estate. The estate is divided after all the debts have been settled in a deceased estate.
  2. When drafting a Last Will and Testament, spouses married in community of property need to be aware that it is only half of any asset that he or she is able to bequeath.
  3. Upon the death of one spouse, all banking accounts are frozen (even if they are in the name of one of the spouses), which could affect liquidity.

Marriage out of community of property without the accrual system

Each estate planner (spouse) retains possession of assets owned prior to the marriage. Each spouse’s estate is completely separated, even in the event of death. If you want your spouse to inherit something, you would need to outline this in your Will.

Marriage out of community of property with the accrual system

This is identical to a “marriage out of community of property” but the accrual system will be applicable. The accrual system is a formula that is used to calculate how much the larger estate must pay the smaller estate once the marriage comes to an end through death or divorce.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

HOW DOES INHERITANCE WORK?

When someone dies they normally have what is called a ‘will’. The people who benefit from this ‘will’ are known as the heirs. Upon someone death, the heirs receive an ‘inheritance’. The person who administers the will of the deceased is called an ‘executor’.

What legislation affects inheritances?

South Africa’s inheritance laws apply to every person who owns property in South Africa.

The three main statutes governing inheritances in South Africa are:

  1. The Administration of Estates Act, which regulates the disposal of the deceased’s estates in South Africa;
  2. The Wills Act, which affects all testators with property in South Africa;
  3. The Intestate Succession Act, which governs the devolution of estates for all deceased persons who have property in the Republic and who die without a will.

All property located in South Africa is subject to these laws, and there are no separate laws for foreigners. Immoveable property is not treated any differently to other types of moveable assets for inheritance purposes. Inheritance issues of foreigners and South African citizens are primarily dealt with by the Master of the High Court; however, if a dispute arises, then the case can be heard in any High Court of South Africa.

Foreigners who acquire immovable property in South Africa through purchase or inheritance must register their transfer of ownership by registering a deed of transfer with the Registrar of Deeds in whose area the property is situated. The process of registering a deed of transfer is carried out by a conveyancer, or specialised lawyer, who acts upon a power of attorney granted by the owner of the property.

Tax and inheritance

In South Africa, there is no tax payable by the heirs who get an inheritance. Capital Gains Tax (CGT) is also not payable by the recipient of an inheritance. Estate Duty and CGT, where applicable, are usually payable by the estate. If it is a foreign estate, it will be subject to the taxes of its country of origin.

What about donations or gifts?

Donations and gifts are treated differently to inheritance. For individuals, donations are subject to a Donations Tax of 20%, with an annual exemption of up to R100,000 of the value of all donations made during the tax year.

  • Non-residents are not subject to Donations Tax. However, in cases where the resident donor transfers his property to a non-resident (donee), and the resident donor fails to pay the Donations Tax, the non-resident (donee) and the resident (donor) will be jointly and severally liable for the tax.
  • Donations between spouses are exempt from Donations Tax, as are donations made to certain public benefit organisations.

Reference

  • The South African Revenue Service (SARS)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

HOW CAN AN UNMARRIED FATHER OBTAIN PARENTAL RIGHTS AND RESPONSIBILITIES?

Under the old dispensation, where parties were divorced, one parent (usually the mother) would usually be awarded custody of a minor child and the other parent (usually the father) would be entitled to visitation rights.

The custodian parent would be vested with making all of the day-to-day decisions of the minor child including which school the child would attend, what religion the child would practice, where the child would reside and so on.

The parents now have joint parental responsibilities and rights, and all major decisions relating to the minor child need to be taken by the parties jointly, which is a far healthier situation for the child.

  • If the unmarried father only wants to apply for care and/or contact, he can do so in the Children’s Court.
  • If the unmarried father wants to apply for guardianship, an application must be made in the High Court.
  • If the unmarried father wants to apply for care, contact and guardianship, he must bring the application in the High Court.

An unmarried biological father may ask a court of law to grant him full parental responsibilities if he:

  • at the time of the child’s birth, is living with the mother in a permanent life partnership, or
  • consents to be identified as the child’s father, or
  • successfully applies to be identified as the child’s father, or
  • pays damages in terms of Customary Law, or
  • contributes or has tried to contribute to the child’s maintenance and upbringing for a reasonable period.

What factors will the court take into account when considering an application for parental rights and responsibilities?

  • The best interests of the child.
  • The relationship between the unmarried father and the child.
  • The relationship between any other person and the child, such as the mother.
  • The degree of commitment the unmarried father has shown towards the child.
  • Whether the unmarried father has contributed or attempted to contribute to the maintenance of the child.
  • Any other factor the court considers to be relevant, such as:
  • whether the unmarried father has a history of violence towards children;
  • the effect of separating the child from his/her mother; or
  • the child’s attitude towards the relief sought in the application.

Reference :

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

CAN SOMEONE RECORD ME WITHOUT MY PERMISSION?

Over the past few months, we have seen videos being posted on social media of physical altercations, poor service delivery and racial slurs, but the victims of the videos and audible recordings are usually unaware that they are being recorded. The recordings are conducted without their permission and then shared. But is someone allowed to record you without being granted permission and the share those recordings?

Audio recording

Audio recording includes the recording of conversations conducted over the phone, recording someone speaking to a room full of people, and recording a direct conversation, without the other party’s permission. Recording without consent is against the law, unless

  • You are party to the communication;
  • You have written permission of one of the parties to the conversation;
  • The recording is in connection with the carrying on of business.

Direct video recording

This is the recording of a person with whom you are having a face-to-face conversation. The video taping of someone without their consent is permissible because you are party to the conversation, much like audio recordings. Recording an altercation between you and someone else, or recording an altercation at an airport is legal due to where the conversation is occurring – a public place.

Section 4 of the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (RICA) defines that a person is party to the conversation if they are in audible presence of the conversation. If you are in an altercation in a vicinity where other people can hear you, they are permitted to film because they are party to the altercation, therefore in direct communication with you.

Indirect video recording

Indirect communication is a much wider category, which includes data, speech and moving images. Skype conversations, although they appear to be face-to-face, are included as indirect communication because it is communication through an online telecommunications service. Thus, you would need to either be one of the parties in the engagement, or have been given consent from one of the parties to record the video/messages.

When is it illegal?

  • If the recording is through an interceptive method such as “bugging” or a “tapping” a device;
  • Hiding to spy on one of the parties for recording purposes, due to the parties being unaware of your presence;
  • When you are in no way party to the conversation. Being party to the conversation is if you are the sender, the recipient, or any person included in the communication.

Exception: RICA permits recordings carried out by law enforcement personnel in certain circumstances.

References:

  • Kevin Illes, A. (2017). Legal implications of secret recording. [online] Moneyweb. Available at: https://www.moneyweb.co.za/archive/legal-implications-of-secret-recording/ [Accessed 15 Jun. 2017].
  • Writer, S. and Writer, S. (2017). When you can – and can’t – legally record someone in South Africa. [online] Businesstech.co.za. Available at: https://businesstech.co.za/news/general/167107/__trashed-65/ [Accessed 15 Jun. 2017].

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

EMAIL MANAGEMENT SYSTEM? GET IT BEFORE IT GETS YOU

If your company uses emails to communicate with clients, then it’s not enough to just rely on traditional ways of managing email, such as backing up emails periodically. There needs to be a well-equipped email management system in place that will keep your business safe.

The key point that relates to the heavy use of email, is the maintenance of the integrity of the email, and being able to prove that integrity. Unfortunately, you can’t simply do nothing and leave your email system as is and hope for the best. Firstly, it is important to understand the legal requirements. This includes the Electronic Communications and Transaction Act, 2002, or the ECT Act.

The ECT Act provides that information is not without legal force and effect simply because it is in electronic form. These are some of the rules set out by the ECT Act regarding electronic communications.

  1. An electronic document must be captured, retained and retrievable.
  2. Electronic documents must be accessible so as to be useable for subsequent reference, this includes the origin, destination, date and time it was sent or received.
  3. If a signature is required, it must be accompanied by an authentication service.

So what should you do?

All companies who wish to comply with the regulations should implement an effective email management system. The core requirements of a good email management system are as follows:

  1. The ability to monitor and intercept email;
  2. Effective capturing of all email;
  3. Cost effective storage of all email and efficient discarding of email that has lost its business value or is no longer required for legal or regulatory or compliance;
  4. Efficient and cost effective restoration of email;
  5. The ability to maintain the integrity of email and the contents thereof; and
  6. The ability to audit email use in order to be able to prove integrity.

Although it seems like a trivial matter, it is worthwhile to implement an email management system in your company. It will help protect your business in the event that you need a record of communication due to an incident or contract dispute. New regulations introduced by POPI will also make this a necessary part of how your company handles information.

Reference:

  • The Electronic Communications and Transaction Act, 2002

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

FEARING FORECLOSURE: WHAT ARE YOUR RIGHTS AS THE HOMEOWNER?

The recent junk status announcement has shaken us into a quick action of tightening our belts and letting go of luxuries to afford our day to day expenses. This financial condition inhibits the possibility of purchasing a new house, let alone affording your current home. Have you thought about what you would do if your foreclosure wiped its shoes on your doormat?

You have the option to sell

Selling, rather than waiting for foreclosure, offers a greater possibility of you receiving greater value for your home. You may choose to sell privately or through an estate agent. It is advisable that your qualified conveyancing attorney be notified of any concerns, as well as any interests of potential buyers. During this time, look for alternative home solutions, and consider a suitable transfer date.

  • Prior to the signing of the agreement of sale and the transfer of ownership, the property still belongs to you.

You have time

Before receiving a foreclosure notice, the bank allows a grace period for you to catch up on your bond instalments. It may be difficult to do so, considering your finances have already been tightrope walking over the past few months. Meeting with your bank allows the opportunity for a payment restructure to be discussed and agreed upon.

  • The repossession procedure is paused during the time you are in application of or in debt review. The National Credit Act allows this opportunity.

Approach your lawyer

If, after attempting to recover payments, you receive foreclosure summons, contact your lawyer. As stated by section 26(3) of the South African Constitution, your eviction may not be finalised without an official court order. The courts consider all relevant circumstances before reaching a final eviction decision.

  • You may not be arbitrarily removed from your home.

You won’t be homeless

You have the right to adequate housing, despite your previous or current economic standing. Adequacy is determined by a place to eat, shelter, a place to sleep, and a place to raise a family, and this accessibility is the responsibility of the state. Following the outcome of the sale by the bank, the home is no longer in your ownership, and the state classifies you as an unlawful occupier.

  • The eviction process will then follow that of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act.

References:

  • National Credit Act
  • Constitution of the Republic of South Africa [1996]
  • Prevention of Illegal Eviction from and Unlawful Occupation of Land Act [No. 19 of 1996]

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)