BUYING PROPERTY ONLINE

We all know the hassle of moving, even if it is just around the corner. Due to family reasons, employment opportunities, or university studies, it is not uncommon for people to not only move down the road but also to move to different provinces in South Africa. This is indeed a challenging task, however, technology has made it a lot easier to find the perfect home for you, even if you are nowhere near it.

Here are some tips you can follow if you are planning on buying property in another province and need to find your new home:

  1. Seize the power of social media:

Social media is a quick and efficient way to let your friends and family on social media know about your home search. The more people that know about your planned move, the more chance you have of someone in that area knowing of the perfect fit for you.

  1. Go online:

The first place that you can start your property hunt is online. You can easily gain access to massive amounts of available properties and information from the comfort of your own home.

  1. Virtual tours:

Don’t just look at the photos of the property posted online. A lot of properties have full virtual tours which means that you can take a virtual stroll through the entire property without physically being there. If the property does not have a virtual tour, you can use tools such as Google Maps to view the property and neighbourhood from the outside, giving you a clear indication of whether this neighbourhood is the perfect fit for you.

  1. Visit the area:

Visiting the surrounding area is ideal, but not always possible, especially if the property is far away. However, it is still a good idea to visit the area before moving. When you visit the area, you will have the opportunity to see the area and surrounds in person. You can plan your visit ahead, and schedule your viewings with your estate agent.

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 I BRING MY ATTORNEY WITH TO AN INTERNAL DISCIPLINARY HEARING?

According to item 4 of the Code of Good Practice (“the code”), the definition of dismissal contained in Schedule 8 of the Labour Relations Act (“LRA”) states that, when an employee is charged with misconduct, “[t]he employee should be allowed… the assistance of a trade union representative or fellow employee”. However, what happens in the instance when you do not belong to a trade union, or alternatively, a fellow employee is unwilling to assist you?

An employee does not automatically have the right to a legal representative during a disciplinary hearing held at their workplace. However, the employee may bring a formal application prior to the hearing for the presiding officer to consider allowing an external representative to assist the employee at the disciplinary hearing.  When exercising such discretion, the presiding officer should take certain factors into account, and the decision in respect of such an application is final, although the employee can still refer a dispute to the CCMA or Bargaining Council for procedural unfairness.

These are the factors to be considered:

  • The company policy;
  • The serious nature and complexity of the matter (whether it is in respect of a point of law or the merits of the matter);
  • The potential severity of the consequences of an adverse finding;
  • The potential adverse effects on both parties, if legal representation is allowed in comparison to when it is not allowed.

However, what happens when the employer blatantly refuses the application, or the company policy prohibits the use of an external legal representative during a disciplinary hearing?

In the case of MEC: Department of Finance, Economic Affairs and Tourism: Northern Province vs Schoon Godwilly Mahumani, the Supreme Court of Appeal held that even when the employer’s disciplinary policy prohibits the use of an external representative, it may be allowed in certain circumstances. The court held that the employer’s policy must be viewed as a guideline, which may be departed from under appropriate circumstances. Therefore, ultimately leaving it to the presiding officers to decide.

In Molope v Mbha and Others, the Labour Court held that even though the dismissal of an employee who was charged with the unauthorised use of funds was substantively fair, the dismissal was procedurally unfair. The employee, prior to the disciplinary hearing, requested a postponement of the said hearing, in order to obtain an external representative as a fellow employee who had agreed to assist the accused employee decided to no longer assist shorty before the hearing.  The employer however refused the postponement.

The decision of the presiding officer on such application is final. However, should the employee wish to appeal against this decision, the employee still has the option of referring the dispute to the CCMA or Bargaining Council for procedural unfairness upon the completion of the disciplinary process.

Therefore, should employers not disclose the option to use an external representative, via their policies or the notice of disciplinary hearing, it does not preclude employees from seeking the assistance of such representative. In the light of the above, it must still be kept in mind that it is not illegal for an employer to have a policy prohibiting assistance from external representatives. However, should the employee wish to make use of external legal representation, the request must be duly considered based on the aforementioned factors, as opposed to a mere outright denial of the request.

Sources:

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 BASICS OF CREATING A LAST WILL & TESTAMENT

Who your property is passed on to depends on whether you have a valid will or not. If you do have a valid will, then your property will be divided according to your wishes stated therein. If you die without a will (called “intestate”), then your property will be divided amongst your immediate family according to the laws of intestate succession.

How can I create a Will?

If you are older than 16, you have the right to create a will, to state who you would want your property to go to when you die. In order for your will to be valid, it needs to be compiled in the proper way.

  1. According to the law, you have to be mentally competent when you compile your will; this means that you must understand the consequences of creating a will and that you must also be in a reasonable state of mind when you do so.
  2. You must make sure that your will is in writing in order for it to be valid.
  3. Two people older than 14 years must witness the creating of your will (these witnesses cannot be beneficiaries).
  4. You have to initialise every page of the will and then sign the last page. The witnesses must also initialise and sign the will.
  5. You can, and should, approach a lawyer to help you draw up your will to avoid creating an invalid will.

You can appoint an executor in your will to divide your property amongst your loved ones. An executor is the person who will make sure that your property is divided according to your wishes, as set out in your will, and he/she will also settle your outstanding debts. If you don’t choose an executor yourself, then the court will appoint someone, which is usually a family member.

What are the risks of not having a Will?

If you don’t have a valid will when you die, your property will be divided according to the rules set out by the law. These rules state that a married person’s property will be divided equally amongst their spouse and children. If you don’t have a spouse or any children, then your property will be divided between other family members. If you also don’t have any blood relatives, then the property will be given to the government. You might think that you do not need a will, as your family will divide your possessions amongst each other, but you must keep in mind that delays in dealing with your estate could affect your family negatively; they might be relying on their inheritance for an income.

  • The beneficiaries of your estate will be determined according to the laws of intestate succession, if you die without a will.
  • This law determines the distribution of your assets to your closest blood relatives, meaning that your assets may be sold or split up against your wishes.
  • Some of your assets could be given to someone in your family that you did not intent to benefit from your estate.
  • Without a will, you cannot leave a specific item to a specific family member or friend.
  • If you live with someone but are not married to them, the law will not necessarily recognise him/her as a beneficiary of your estate, unless you have left a will naming them as a beneficiary.

References:

  • Western Cape Government. (2017). Making a Will. [online] Available at: https://www.westerncape.gov.za/service/making-will [Accessed 22 Jun. 2017].
  • Momentum.co.za. (2017). Drafting a will and setting up a trust. [online] Available at: https://www.momentum.co.za/wps/wcm/connect/momV1/f150ba2e-3724-4b42-9265-332106cb6b83/drafting+a+will_E+vs+2+%2807032013%29%5B1%5D.pdf?MOD=AJPERES [Accessed 22 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)

THE 10 STEPS WHEN TAKING A DISPUTE TO THE CCMA

If you have a dispute with your employer, you may want to ask the Commission for Conciliation, Mediation and Arbitration (“CCMA”) to conciliate or even arbitrate your dispute. A union or employer’s organisation may also initiate this action. Furthermore, you do not need the other party’s consent before taking a matter to the CCMA.

Steps for disputes at the CCMA

According to the CCMA, the steps involved in resolving a dispute include:

Step 1: In the case of an unfair dismissal dispute, you have only 30 days from the date on which the dispute arose to open a case, if the case is an unfair labour practice, you have only 90 days and, with discrimination cases, you have six months.

Step 2: If you have decided to lodge a dispute, you need to complete a CCMA case referral form (also known as LRA Form 7.11.).

Step 3: Once you have completed the form, you need to ensure that a copy is delivered to the other party and you must be able to prove that a copy was sent.

Step 4: You do not have to bring the referral form to the CCMA in person. You may also fax the form or post it. Make sure that a copy of the proof that the form had been served on the other party is also enclosed.

Step 5: The CCMA will inform both parties as to the date, time and venue of the first hearing.

Step 6: Usually the first meeting is called conciliation. Only the parties, trade union or employers’ organisation representatives (if a party to the dispute is a member) and the CCMA commissioner will attend.

Step 7: If no agreement is reached, the commissioner will issue a certificate to that effect. Depending on the nature of the dispute, the case may be referred to the CCMA for arbitration or the Labour Court as the next step.

Step 8: In order to have an arbitration hearing, you have to complete a request for arbitration form, (also known as LRA Form 7.13.). A copy must be served on the other party (same as in step 3).

Step 9: Arbitration is a more formal process and evidence, including witnesses and documents, may be necessary to prove your case. Parties may cross-examine each other and legal representation is allowed. The commissioner will make a final and binding decision, called an arbitration award, within 14 days.

Step 10: If a party does not comply with the arbitration award, it may be made an order of the Labour Court.

Reference:

  • The Commission for Conciliation, Mediation and Arbitration | CCMA| http://www.ccma.org.za/Advice/Referring-a-Dispute

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)

PAIA: POLITICAL PARTIES MUST DISCLOSE FUNDING

The Western Cape High Court has ruled that political parties must disclose their funding. This has come after public-interest group My Vote Counts sought a declaration that information about the private funding of political parties is reasonably required for the effective exercise of the right to vote in Section 19(3)(a) of the Bill of Rights.

Furthermore, they sought a declaration that the Promotion of Access to Information Act, 2 of 2000 (“PAIA”) is inconsistent with the Constitution and invalid, insofar as it does not allow for the continuous and systematic recordal and disclosure of private funding information of political parties.

The Court ordered the following:

  1. It is declared that information about the private funding of political parties and independent ward candidates (the latter concept as contemplated in section 16 of the Local Government:  Municipal Electoral Act, 27 of 2000) (“independent candidates”)registered for elections for any legislative body established under the Constitution (“private funding information”) is reasonably required for the effective exercise of the right to vote in such elections and to make political choices, in terms of sections 19(1), 19(3), 32 and 7(2) of the Constitution of the Republic of South Africa, Act No 108 of 1996 (“the Constitution”);
  2. It is declared that the Promotion of Access to Information Act, 2 of 2000 (“PAIA”)is inconsistent with the Constitution and invalid insofar as it does not allow for the recordal and disclosure of private funding information;
  3. The declaration of invalidity in paragraph 2 above is suspended for 18 months in order to allow Parliament to remedy the defects in PAIA and to allow for the recordal and disclosure of private funding of political parties and independent candidates;

Reference:

  • My Vote Counts NPC v President of the Republic of South Africa and Others (13372/2016) [2017] ZAWCHC 105 (27 September 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)

HIJACKED BUILDINGS

As an owner of a building, trying to evict the hijackers and their tenants can often be without success.

Hijacked buildings are when the legal owner is deprived of their property, land and possessions by the slumlords. The slumlords impose themselves as the rightful owners, collecting rent and acting as body corporates of the hijacked building. The issue of buildings being occupied without the legal owner’s consent has become a common method for slumlords to generate quick profit. A common case with residential flats and apartments, the value of the building as well as the amenities around it depreciates due to the unkempt nature the building becomes.

Because the legal owners are registered at the municipality as being responsible for bills, taxes and utilities, slumlords have no obligation to meet these payment deadlines as they are not identified as the owners and the owners then obtain large amounts owing to the municipality. Should they have requested for the water and electricity be cut off as a means to not accumulating debt, the property’s occupants would likely become violent, destroying what is left of the building’s conditions.

When the rightful owners approach the illegal owners and occupiers of the property, they are violently threatened, making them unable or fearful to return to claim their property. Because everyone has the right to property and housing, their right cannot be imposed on, even in cases of illegal occupation. Seeking legal advice ensures that you are not breaking the law as the rightful owner. An investigation into locating the slumlords is established, as well as the determination of whether the complainant is the rightful owner of the hijacked property. This opportunity also restores the rights of people who are paying exploitive amounts of rent and ensures that their access to basic needs is met. To restore the condition of the building, the occupiers must be offered alternative accommodation and an order must be granted by the court before an eviction can be conducted. Breach of the said order warrants for the arrest of the unrelenting occupier.

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 TRUSTEES BAN YOUR PET IN A SECTIONAL TITLE SCHEME?

Problems around the ownership of pets are common amongst owners of sectional title properties, but while laws may be imposed by the trustees of the homeowners’ associations, the requirement for a reasonable approach is entrenched in the very laws which govern how a sectional title scheme should be managed.

Where the trustees have reasonably, after following due process and considering all relevant factors, withdrawn their consent to keep a pet, the owner concerned is then not entitled to continue keeping that pet in the scheme.

This is according to the Prescribed conduct rule 1 in Annexure 9 of the Sectional Titles Regulations which deals with the keeping of pets, including reptiles or birds.

It states:

“1. (1) An owner or occupier of a section shall not, without the consent in writing of the trustees, which approval may not unreasonably be withheld, keep any animal, reptile or bird in a section or on the common property.

(2) When granting such approval, the trustees may prescribe any reasonable condition.”

The phrases, “may not unreasonably” and “may prescribe any reasonable”, clearly seek to assist in the creation of harmony amongst a community living side by side in a sectional title development.

These regulations exist to protect the pet owner from unreasonably strict rules, and equally, they must confer on the other owners the right to a nuisance-free and peaceful environment. This means that both parties need to consider each other’s needs.

This consideration, in granting or refusing consent, will be central to inquiry: will it unreasonably interfere with other’s rights to use and enjoy their units; and which conditions would be appropriate in these circumstances to ensure that the risk of nuisance is reduced to a reasonable level?

For this reason, owners or occupiers can only keep pets in a section or on any part of the common property with the written consent of the trustees. However, the trustees cannot unreasonably withhold that permission. An absolute prohibition to keep a pet could be considered unreasonable and if consent to keep a pet is unreasonably withheld, the owner can take the matter to court.

The trustees must furthermore, base their decision on the facts and circumstances of the particular case. The decision to either grant or refuse consent should be recorded in the minutes of the trustee’s meeting, giving reasons that illustrate they have applied their minds to the particular set of facts.

An example of a court case which arose from a dispute regarding permission to keep a pet in a sectional title development was Body Corporate of The Laguna Ridge Scheme No 152/1987 v Dorse 1999 (2) SA 512 (D), in which it was held that the trustees are obliged to individually consider each request for permission to keep a pet, and to base their decision on the facts and circumstances of each particular case.

A further extract from this case pointed out that trustees are not entitled to refuse an application on the basis that they are afraid of creating a precedent. The trustees were, in this case, found to have been grossly unreasonable and have failed to apply their minds when they refused the Applicant permission to keep a small dog.

The question of the reasonableness of the actions of the trustees, in granting or withholding permission and setting conditions, will turn on the nature of the pet concerned and the circumstances of the scheme. In dealing with any application for permission to keep a pet, the trustees should consider what type of pet it is, and whether there are already other similar pets at the scheme.

It is unlikely that any action by the trustees to remove a ‘companion animal’ or ‘service animal’, such as a guide dog owned by a blind or partially sighted owner, would be held to be reasonable in the absence of a clear nuisance caused by the animal. The fact that a person sometimes forms an extremely strong emotional tie with their pet could also be an important consideration when the trustees decide whether or not to grant permission.

The trustees are not, however, powerless in situations where the conditions of permission to keep a pet are not being met. The trustees can withdraw permission if it is reasonable to do so. Examples include if the pet is causing a nuisance to other owners or occupiers (e.g. barking persistently), or the pet is considered dangerous to other owners or occupiers.

Where the trustees have reasonably, after following due process, withdrawn their consent to keep a pet, the owner concerned is then not entitled to continue keeping that pet in the scheme. However, the enforcement of this could be tricky for the trustees. The body corporate is not entitled to forcibly remove a pet from an owner’s possession. This can only be achieved by a court order, if – for example – there are too many dogs being kept in an inadequate space, the trustees can get the assistance from the local SPCA who can be contacted to come to the scheme to do an inspection in loco. If it is justified, they will implement the necessary legal steps to have the dogs removed.

Careful consideration and the application of the principles as set out in the rules of the scheme and the above-mentioned regulations will lead not only to peaceful co-existence, but also healthy growth in property values for the developments implementing such approach. A harmonious board of trustees results in a happy community, which in turn will ensure a good name for any development.

Reference List:

  • Conduct Rule 1 in Annexure 9 of the Sectional Titles Regulations
  • Permission to Keep Pets | Paddocks

https://www.paddocks.co.za/paddocks-press-newsletter/permission-to-keep-pets/

  • Body Corporate of The Laguna Ridge Scheme No 152/1987 v Dorse 1999 (2) SA 512 (D)

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)

DOES SOUTH AFRICA HAVE A PUBLIC RETIREMENT INSURANCE SCHEME?

My husband’s employer made provision for an occupational retirement vehicle, but my employer refuses to do so. Is there any possible recourse for me in this situation?

There is currently no public retirement insurance scheme in South Africa. This is quite a predicament for most South Africans, as the majority of persons employed in the informal economy would have to rely on an old age grant (which is currently R1, 690.00 and will increase with R10.00 on the 1st of October 2018) rather than occupational retirement. This leaves one with the alternative options of either a private retirement fund or a provident fund.

Some employees are lucky enough to be given the choice between a pension or a provident fund, when they are employed. However, there is no statutory obligation on an employer to provide such a choice to their employee. In the case of a provident fund, the contributions of members are not allowed as tax deductions and, when the member reaches the retirement age, the whole benefit will be paid out in a lump sum. In contrast, with a pension fund, the member gets one third of the total benefit in a cash lump sum and the other two-thirds is paid out in the form of a pension over the rest of the member’s life. The contributions to a pension fund are deductible for tax, which offers the member some tax benefits.

Independent contractors, the self-employed, and other persons who do not qualify to join occupational retirement funds, are left with no other option but to turn to private retirement annuities. The high-income employees also tend to invest their monies in this option to secure a comfortable retirement.

The private retirement scheme option has now taken up the responsibility of a social insurance scheme.

In his budget speech on the 21st of February 2018, the Finance Minister, Malusi Gigaba, declared that the old age grant would increase by the 1st of October 2018. This is the last option for those whose retirement plans have failed, or the only option for most informal economy employees or low-income employees.

With the lack of a public retirement insurance scheme, employees who are not fortunate enough to be given the option of an occupational retirement vehicle are left with no other alternative but to turn to a private insurance scheme. This decision is however also dependant on a “practicable” salary. There is currently no statutory obligation on employers to provide for an occupational retirement scheme.

Sources:

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)

BEFORE LEASING, INCLUDE THESE IN THE AGREEMENT

If you consider leasing out your property, it is important not to overlook any requirement and expectations you may have of the incoming tenant. A basic lease agreement should at least have the below stipulated in detail:

  1. Basic information

This includes the details of those who are party to the agreement, the address of the property being leased out, and the lease period.

  1. A deposit and other fees

The purpose of a deposit is to ensure that, should there be any damages to a property due to the tenant’s fault, they could be repaired without the landlord incurring the expenses or waiting for the tenant to pay for said damages. The deposit amount must be stated in the agreement and is payable to the tenant, after damages have been deducted, when the lease agreement has been terminated.

  1. Responsibilities, repairs and maintenance of the premises

Landlords are not able to oversee everything the tenant does, and this is where the responsibility and maintenance clause comes in. If the property’s utilities will be included in the rent, it should be stipulated and not assumed. The general upkeep, such as mowing the lawn or cleaning the pool, must be stated as to whom will be responsible for it. Saying it orally will not suffice because if it is not in writing, it’s easy to challenge it.

  1. Subletting and limits on occupancy

All the adults who will be living on the premises should be party to the agreement; their names, details and signatures must be provided. This allows for the landlord to determine who may live on the property and serves as proof that these are the occupants that he/she has approved.

  1. Rent payment

If this is not on the lease, then living on the property is obviously free. Unless this is intended, the rent payable must be included in the agreement. In addition, details regarding the amount, date to be paid, acceptable payment methods, and repercussions of failing to meet these requirements, must be included.

  1. Termination of lease

The terms that warrant a lease to be terminated must be included in the agreement.

  1. Pets

A landlord cannot just assume that a tenant will not have pets. If pets are allowed, descriptive limitations and restrictions must be included as well.

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)

KORPORATIEWE BEHEER – ’N TRUST AS ’N LID VAN ’N BESLOTE KORPORASIE

Die Wet op Beslote Korporasies No 69 van 1984 (“die Wet”) het voorsiening gemaak vir die oprigting van beslote korporasies wat eenvoudige, gedereguleerde en buigsame entiteite met beperkte aanspreeklikheid is wat veral vir klein ondernemings geskik is. Hulle het eie regspersoonlikheid en geniet die voordele van ewigdurende opvolging.

Die Maatskappywet No 71 van 2008, verbied egter die registrasie van enige nuwe beslote korporasies na 1 Mei 2011. Beslote korporasies kan omgeskakel word na maatskappye, maar maatskappye kan nie meer omgeskakel word na beslote korporasies nie. Reeds bestaande beslote korporasies word egter geadministreer deur die Wet.

’n Beslote korporasie het nie aandeelhouers nie, maar wel lede en aangesien ’n beslote korporasie afsonderlike regspersoonlikheid het, staan dit onafhanklik en verwyderd van sy lede. ’n Beslote korporasie kan uit ’n minimum van een lid tot ’n maksimum van tien lede bestaan. Die beperking op die aantal lede beklemtoon die wetgewer se bedoeling dat die beslote korporasie bedoel was vir kleiner ondernemings, waar die verhouding tussen die lede soortgelyk aan dié van vennote is.

Die Wet stipuleer in Artikel 29 dat slegs natuurlike persone lede mag wees van ’n beslote korporasie. Verder beklemtoon hierdie artikel dat ’n natuurlike of regspersoon in sy of haar kapasiteit as ’n trustee van ’n inter vivos trust ’n lid van ’n beslote korporasie kan wees as daar aan sekere vereistes voldoen word, naamlik:

  • Geen regspersoon mag direk of indirek ’n begunstigde wees van daardie trust nie;
  • Die lid sal dieselfde regsverpligtinge hê tussen homself of haarself en die beslote korporasie as wat ’n natuurlike persoon sou hê;
  • Die beslote korporasie is nie verplig, of het geen verpligting om enige ooreenkoms tussen die trust en die betrokke lid van die korporasie te onderhou of na te kom nie;
  • Indien die aantal natuurlike persone wat geregtig is om enige voordeel van die trust te ontvang, ter enige tyd wanneer hulle by die beslote korporasie gevoeg word, aanleiding gee daartoe dat die aantal lede van die korporasie meer as 10 word, sal die bepalings en voorwaardes waarvoor voorsiening gemaak word in hierdie artikel nie meer langer van toepassing wees nie

Gevolglik sal die volgende persone gemagtig wees om as lede van ’n beslote korporasie te dien:

  1. ’n Natuurlike persoon
  2. ’n Natuurlike of regspersoon in sy of haar hoedanigheid as ’n trustee van ’n testamentêre of inter vivos trust wat as verteenwoordiger van daardie trust optree, behalwe indien:
  • Die persoon ’n begunstigde van die trust is;
  • Die trustee ’n regspersoon is, en direk of indirek beheer word deur enige van die begunstigdes van die trust; en
  • ’n Natuurlike of regspersoon in sy of haar verteenwoordigende kapasiteit, insolvent, oorlede, verstandelik gestremd of andersins onbevoegd is om sy of haar eie sake te bestuur, ’n trustee van sy of haar eie boedel is of ’n administrateur, eksekuteur of kurator van sodanige boedel is.

Onderworpe aan die uitsonderings soos hierbo gestipuleer, mag slegs natuurlike persone lede van ’n beslote korporasie wees en mag geen regspersoon ’n ledebelang in ’n beslote korporasie hou nie. ’n Maatskappy of beslote korporasie kan dus nie ’n lid van ’n beslote korporasie wees nie en enige oortreding van hierdie verbod kan tot gevolg hê dat die regspersoon aanspreeklik sal wees vir sekere skulde van die beslote korporasie. ’n Beslote korporasie mag wel ’n lid van ’n maatskappy of vennootskap wees en ’n beslote korporasie kan selfs die beherende aandeelhouer van ’n maatskappy word.

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)