GELDIGHEID VAN ‘N HUWELIKSVOORWAARDEKONTRAK

Die opstel en ondertekening van ʼn huweliksvoorwaardekontrak moet versigtig benader word. Benewens die feit dat die inhoud feitelik korrek moet wees, moet al die nodige bepalings daarin vervat word om die kontrak geldig te maak. Indien daar versuim om ʼn huweliksvoorwaardekontrak op te stel, mag dit lei daartoe dat ʼn huwelik as binne gemeenskap van goedere beskou word, selfs al was dit nie die partye se bedoeling toe die kontrak gesluit was nie.

Prokureurs en Notarisse word vertrou met die opstelling van ʼn huweliksvoorwaardeskontrak. Dit is ‘n kontrak wat deur die betrokke partye onderteken word om die huweliksbedeling te reguleer. As ‘n paartjie nie ‘n huweliksvoorwaardeskontrak teken nie, sal die huweliksbedeling binne gemeenskap van goedere wees. ʼn Huweliksvoorwaardeskontrak wys daarop dat die huweliksbedeling buite gemeenskap van goedere is. Die partye moet dus spesifiek stipuleer of hulle die aanwasbedeling op hul huwelik van toepassing wil hê al dan nie.

Die saak van B v B, soos in die Appèlhof voorgekom, bespreek die belang van die nodige bepalings in ʼn huweliksvoorwaardeskontrak wat tot die sluit van ‘n geldige kontrak lei. In hierdie geval was daar geen bepalings gestipuleer ten opsigte van enige van die bates wat in die huweliksvoorwaardeskontrak uiteengesit is nie. Die bates was ook behoorlik geïdentifiseer nie. In B v B het die hof gestel dat indien die bepalings van ‘n kontrak so vaag en onsamehangend is, en dit onmoontlik is om ‘n sinvolle konstruksie daarvan te maak, moet die kontrak as nietig beskou word as gevolg van vaagheid.

Ingevolge artikel 6(1) van die Wet op Huweliksgoedere kan ‘n party tot ‘;n voorgenome huwelik, wat nie die waarde in die kontrak uiteensit vir die doel om ʼn bewys te lewer van die bates van sy of haar boedel teen die tyd van die aanvang van die huwelik nie, dit binne ses maande van die sluiting van die huwelik in ‘n verklaring bevestig met behulp van ’n notaris. Ingevolge artikel 6 (4) van die Wet op Huweliksgoedere word die netto waarde van die boedel van ‘n gade as nul geag ten tye van die huwelik, indien die betrokke party nie die bewys betyds lewer nie. In effek is so ‘n kontrak geldig, maar dit sal beteken dat ʼn huwelik as binne gemeenskap van goederebeskou, aangesien daar niks van die oploping uitgesluit is nie.

As ‘n kontrak egter teenstrydig en onsamehangend is in ander opsigte, kan dit nie as ‘;n geldige kontrak nie beskou word nie, aangesien daar geen sekerheid is oor die betekenis van die kontrak en wat die partye beoog om te bereik nie. Dit beteken dat die kontrak nie die Hof in staat stel om uitvoering te gee aan die bedoeling van die partye ten die tye van die sluiting van die kontrak nie.

Die gevolg van so ‘n kontrak is dat die huweliksvoorwaardeskontrak nietig verklaar sal word as gevolg van onsamehangendheid en dat die huweliksbedeling ingevolge die Wet op Huweliksgoedere in gemeenskap van goedere sal wees.

Partye word dus aangemoedig om hul huwelikskontrakte deeglik te lees en seker te maak dat hulle die bepalings daarvan verstaan en dat die kontrak hul bedoelings uitbeeld, sonder enige verdere verduidelikings of bewyse.

B v B (952/12) [2014] ZASCA 14 (24 Maart 2014)

Wet op Huweliksgoedere 88 van 1984

Hierdie is ‘n algemene inligtingstuk en moet gevolglik nie as regs- of ander professionele advies benut word nie. Geen aanspreeklikheid kan aanvaar word vir enige foute of weglatings of enige skade of verlies wat volg uit die gebruik van enige inligting hierin vervat nie. Kontak altyd u regsadviseur vir spesifieke en toegepaste advies. (E&OE)

ROAD CYCLISTS VS MOTORISTS

The popularity of road cycling as a competitive sport and a form of transportation is on the rise. This naturally leads to major safety concerns and serious accidents among both groups of road users.

Both the National Road Traffic Act[1] and the Western Cape Provincial Road Traffic Act[2] regulate the rights of and rules for pedal cyclists and motor vehicle drivers on roads in the Republic of South Africa. The National Road Traffic Act has specific regulations pertaining to cycling safety and every cyclist should be alert to these regulations. Regulation 3113 states as follows:

  1. No person shall ride a pedal cycle on a public road unless he or she is seated astride on the saddle of such pedal cycle.
  2. Persons riding pedal cycles on a public road shall ride in single file except in the course of overtaking another pedal cycle, and two or more persons riding pedal cycles shall not overtake another vehicle at the same time.
  3. No person riding or seated on a pedal cycle on a public road shall take hold of any other vehicle in motion.
  4. No person riding a pedal cycle on a public road shall deliberately cause such pedal cycle to swerve from side to side.
  5. No person riding a pedal cycle on a public road shall carry thereon any person, animal or object which obstructs his or her view or which prevents him or her from exercising complete control over the movements of such pedal cycle.
  6.  A person riding a pedal cycle on a public road shall do so with at least one hand on the handle bars of such pedal cycle.
  7. Whenever a portion of a public road has been set aside for use by persons riding pedal cycles, no person shall ride a pedal cycle on any other portion of such road.
  8. A person riding a pedal cycle on a public road or a portion of a public road set aside for use by persons riding pedal cycles, shall do so in such manner that all the wheels of such pedal cycle are in contact with the surface of the road at all times.

The Western Cape Provincial Road Traffic Act was passed on the 29th November 2012 and this Act has implications for both pedal cyclists and motor vehicle drivers. The Act empowers the Provincial Minister of Transport to regulate4 certain matters to increase road safety in the Province. Amongst others, regulations requiring all vehicles overtaking cyclists to ensure that there is a safe distance of at least 1.5 metres between them before passing, and law enforcement actions against cyclists who do not ride in single file, or who fail to stop at red traffic lights or stop streets were enacted.

Cyclists have the right to expect motor vehicles to overtake them safely and be on the look-out for them at intersections. The Road Traffic Act is clear where it states that drivers must take other road users into account in whatever they do. Cyclists also have the right to the left-hand side of the road (not the extreme edge of the left-hand side). We tend to forget that there are cyclists around us who are also using the roads as a means of transport. Apart from the recently built cycle-lanes in Cape Town, we do not have dedicated lanes in South Africa for cyclists to use. This means that every day cyclists are fighting for road space amongst often aggressive and ignorant drivers, according to the Automobile Association of South Africa (AA).

While the law states that cyclists must wear protective headgear while riding a bicycle, for many this is a cost that they simply cannot afford, making them almost invisible to the drivers on the road.

Therefore, as a driver, ask yourself what you can do to avoid colliding with a cyclist. The AA provides some safety tips for drivers:

  • Yield to cyclists, especially at intersections and circles.

4 Dec 6, 2013 – Province Western Cape: Provincial Gazette 7208.

  • Check your blind spots and make sure the way is clear before changing lanes or direction.
  • Do not drive, stop or park in a bicycle lane.
  • Give cyclists enough room when overtaking – at least 1.5 metres.

Changing the behaviour of drivers will assist in the fight to stop cyclist crashes and deaths on our roads. However, cyclists also have to do their part by following the rules and making sure they are visible. Here are some safety tips for cyclists on the road:

  • Obey the traffic signs and rules.
  • Keep left and keep at least one metre clear of the pavement and parked cars.
  • Ride with the traffic and not against it.
  • Be visible – wear reflective clothing and a bright-coloured helmet at all times.
  • Use lights at night – a white headlight and a red rear lamp.
  • Use hand signals when turning or changing lanes.
  • Always cycle in single file.

In order to reduce the level of carnage on our roads we need to work together as road users, and this means that both cyclists and drivers need to follow the rules. The first step in doing this is to become aware of the rules and regulations in place to protect and serve the interests of both groups of road users.

Bibliography:

  1. www.aa.co.za
  2. www.arrivealive.co.za
  3. www.acts.co.za/national-road-traffic-act-1996
  4. www.polity.org.za

 [1] 93 of 1996

 [2] 6 of 2012

 [3] National Road Traffic Regulations, 2000. Government notice R225 in Government Gazette 20963, dated 17 March 2000. Effective as from 1 August 2000 (page 340/389).

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)

PROTECTION ORDER

In this article we will deal with the manner in which to obtain a protection order, the possible reasons for obtaining such an order, and the consequences of disobeying the order.

A protection order is described as being a form of court order that requires a party to do, or to refrain from doing, certain acts. These orders flow from the court's injunction power to grant equitable remedies, and can deal with the following:

  • That someone should not commit any act of domestic abuse.
  • That someone should pay you rent, mortgage, or other monies, such as child support.
  • That someone should hand over firearms or dangerous weapons to the police.

If you feel that you need to protect yourself by applying for a protection order, you must apply at a court which has jurisdiction over the area where you are residing. It is also important to first phone a court and make sure on which days you can apply for a protection order, since many courts only have certain days on which they deal with the application for protection orders, unless the protection order is a matter of urgency and you feel that your life might be at risk.

Before obtaining a final protection order, you need to apply for an interim protection order. To do this, you need to apply to the court. The interim order specifies the date on which the final order will be considered. Once the final order is made, it is permanent and can only be changed by making an application to do so at the court at which it was granted. Once an interim order is granted a copy of the order must be served on the Defendant by either the police or a sheriff of the court. The Defendant then has the opportunity to defend the matter on the return date and the Magistrate has the discretion to either make it a final protection order or not.

Requesting a protection order does not mean that you are laying a charge against your abuser. You do not need to lay a criminal charge in order to obtain a protection order. However, if you are a victim of a type of domestic abuse that is also a crime, you can apply for a protection order, lay a criminal charge, or both. Some examples of abuse that are also crimes include common assault, rape, incest, attempted murder and the abuse of animals.

If your abuser breaches or breaks the conditions of the protective order, he has committed a crime, being in contempt of court. This applies even if the breach is not an actual crime, such as controlling behaviour. If the breach itself involves a crime, such as assault, then the abuser can be charged with both contempt of court and assault. If your abuser, or the person that you have the protection order against, breaches the terms of the order you should phone the police as a matter of urgency. The police will then proceed to arrest him/her.

It is important to take note that as soon as a Magistrate grants an interim protection order, the docket number will be placed in your identity document to ensure that the police are aware of this, if matters turn for the worse. It is also important that you go back to court on the return date, because if you don’t, the Magistrate will remove the interim order and the matter will be struck off the roll.

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)

CO-OWNERSHIP OF LAND

The word “co-ownership” in relation to land means that two or more persons own land simultaneously in undivided shares. A share in land does not represent, and may not be held to represent a defined portion of land. A co-owner who holds a share in land does not hold title to a defined piece of land even if by arrangement with his co-owners they might have agreed to give him occupation of a specific portion of land. The title he has is to an undivided share only, in the whole of the land, held in joint ownership. The portion he occupies is owned jointly by him and his co-owners in the whole thereof. If he should build a house on the portion he occupies, the house will be owned jointly.

When X, Y and Z are co-owners of a farm, they are not each entitled to a physical part of the farm but each of them has an undivided share in the whole of the farm. The shares will not always be equal. One person can have half a share while the other two can each have a twenty five percent share. However, co-ownership unfortunately often leads to disputes among the owners.

Co-operation between the co-owners

It is advisable that co-owners enter into an agreement which regulates the relationship between them. Unfortunately this agreement will have no bearing against third parties. The consent of all the co-owners is required when administrative decisions have to be made. No owner is entitled to change or improve the property without the consent of the other owners. All the owners have to agree to the use of the property, e.g. they have to agree to the chopping down of trees, the erection of a storage facility/building, or to let cattle graze in the field. If co-owners are not consulted they may request an interdict from the court. The court may even order that buildings that have been erected, be removed. However, in instances where the aim is to preserve the property, it is not always necessary to obtain the consent of the co-owners.

The profits and losses

All the co-owners must contribute proportionally to necessary and also useful expenses for the preservation of the property. Such expenses include taxes and expenses to maintain the property in good condition, but do not include luxury expenses. Losses and charges must be shared by the co-owners, except those attributable to negligence of one of the owners. As with expenses, fruits and profits must be divided amongst the co-owners according to each owner’s shareholding.

Alienation of a share

A co-owner may alienate his share or even bequeath it to his heirs, without the consent of the other owners, even against their will. A co-owner’s share may also be attached by the sheriff.

Use of the property

Each co-owner may use the property in accordance with his undivided share. He must, however, use it with due regard to the rights of the other co-owners. Each co-owner, his employees and guests are entitled to free entry to any part of the property, except if the co-owners have agreed that a portion of the property is reserved for the exclusive use of one co-owner.

Partition

Co-owners may decide to partition the property, usually if they cannot agree on the utilisation of the property. The property will then be divided physically in accordance with the value of the property and each owner’s share in it. When this is uneconomic, which is usually the case with a farm, the property can be awarded to one co-owner, but he must then compensate the other co-owners. The court may also order that the property be sold by public auction and the proceeds divided amongst the co-owners. There is strict statutory control over the subdivision of land and also the actual physical division and use of land, so that partition may not always be possible.

Co-ownership is an excellent vehicle to becoming an owner of a property that one otherwise might not be able to afford. However, be aware of the pitfalls, choose your co-owners wisely, and draw up an agreement to regulate payment of the bond and rates, the day-to-day expenses and house rules.

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)