What Can You Do When Your School Is Being Neglected by the Government?
The current statistics show that there are currently: 3 544 schools without electricity; 2402 schools without water supply; 11 450 schools still using pit latrine toilets; 22 938 schools without stocked libraries; 21 021 schools without laboratory facilities; 2 703 schools without fencing; and 19 037 schools without computer centres. This article examines the legal remedies available to address situations where a school is deprived of essential resources due to government neglect, hindering its ability to function effectively. The Right to Basic Education in South Africa As a point of departure, section 29 (1) of the Constitution provides that everyone has the right to basic education, adult basic education and further education. The South African Schools Act 84 of 1996 (“SASA”) sets out the legislative obligations the government ought to comply with, in order to implement S29 (1) of the Constitution. S5A of SASA provides that schools within South Africa need to have classrooms, electricity, water, sanitation, internet connection, libraries, security fences and sports facilities. In addition, the Minimum Uniform Norms and Standards for Public School Infrastructure, 2013 (“the Regulations”), apply to all public schools. These regulations mandate that schools must be maintained in a manner that fosters a conducive learning environment. This means the government has a responsibility to support schools in a manner that will create an environment in which everyone can enjoy the right to basic education. Case Law In the case of Section 27 & others v Minister of Basic Education & another, the Department of Basic Education (“DBE”) adopted a new national education curriculum. As a result, new textbooks were prescribed and these new textbooks needed to be available for use in time for the 2012 academic year for schools in Limpopo. It was therefore the responsibility of the government to supply schools in Limpopo with the new textbooks. A significant number of prescribed textbooks were not ordered or delivered to schools in Limpopo province in a timely manner before the start of the academic year. This government failure was never rectified. Consequently, Section 27, along with two other applicants, approached the High Court seeking an order against the Minister of Basic Education of the Republic of South Africa and the Executive Council of the Limpopo Department of Education. They sought a declaration that the failure to deliver textbooks violated the South African Schools Act No. 84 of 1996, Section 195 of the Constitution of the Republic of South Africa, and the rights to basic education, equality, and dignity as enshrined in the Constitution. The applicants also asked for a court directive to the respondents to provide textbooks for all relevant school grade learners on an urgent basis and develop and implement a ‘catch-up plan’ for at least the affected highest grade learners. The High Court granted both remedies. The Department of Basic Education of Limpopo was directed to deliver all outstanding books within the set deadline of approximately one month from the date of the order. In addition, the court directed the respondents to develop and implement a detailed ‘catch up/remedial’ plan for the learners in the highest affected grade, which was ordered to be filed with the High Court. If your school is in a situation where it does not have access to water, electricity, quality safe infrastructure or access to learning materials, it could constitute a violation of the right to basic education. In such cases, you could apply to the court for an order compelling the government to comply with its obligations. Should you require legal assistance of such a nature, feel free to contact us or book a consultation. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.
The Costs of Deceased Estates Explained
An important function of an executor, the person who is appointed by the Master of the High Court to administer a deceased estate, is to account for the liabilities in the estate of the deceased. Keep in mind that only once the liabilities in the estate have been discharged can the heirs receive their inheritances. In this article, the various costs and expenses involved in administering a deceased estate are explained. Income tax One of the executor’s key functions is to ensure that SARS is paid what it is owed in respect of taxes. The executor will have to submit at least two income tax returns – the pre-date of death return is in respect of the income of the deceased up to the date of death, whereas the post-date of death return is in respect of income which accrued during the administration process up until submission of the liquidation and distribution account. Estate duty All property belonging to a person at the date of death, together with all property deemed to belong to that person, forms part of the estate for purposes of calculating estate duty. Estate duty is a tax payable on the dutiable estate of the deceased, with the first R3.5 million of the value of the estate not being dutiable. Estate duty is charged at a rate of 20% of the first R30 million, and 25% on anything over R30 million. Accrual claim If a person is married out of community of property with the accrual system, the accrual is calculated upon the death of the first-dying spouse. If the value of the deceased spouse’s estate is greater than that of the surviving spouse, the surviving spouse will have a preferent claim against the deceased’s estate for their share of the accrual. Maintenance claims If the deceased has maintenance obligations in terms of a divorce order, these obligations do not fall away on death and the executor will need to ensure that they are honoured, which is normally done in the form of a lump sum payment. Outstanding debt The executor must also settle all other debts of the deceased, such as outstanding balances on home loans and instalment sale agreements, and amounts owing to creditors e.g. medical bills and store accounts. Administration costs Funeral and burial costs: Funeral and burial costs are borne by the deceased estate although, normally, the deceased’s family covers the costs of the funeral, and then claims the costs back from the estate. Advertising costs: During the administration process two sets of notices must be placed in a local newspaper and the Government Gazette. Master’s fees: Estates with a value of more than R250,000 are levied Master’s fees at a sliding scale up to a maximum of R7,000. Bank charges: Service fees are debited to the bank account opened in the name of the estate. Provision of security: If the nominated executor is not exempt from lodging security, the premium payable on the bond of security is a charge against the estate. Maintenance costs: Costs incurred in respect of maintaining an asset in the estate, such as garden services and repairs, must be covered by the estate. Professional fees: The executor may need to use professionals to assist with the winding up of an estate, and these costs will be paid by the estate e.g. estate agent’s commission if immovable property is sold out of the deceased estate, or the fee charged by a tax practitioner completing income tax returns. Valuation costs: The account rendered by an appraiser for a valuation of assets for estate and estate duty purposes is a cost payable by the estate. Bond cancellation costs: The executor must cancel all bonds registered over immovable property once the outstanding balances have been paid, and the estate is liable for the bond cancellation costs. Transfer costs: If immovable property in an estate is transferred to an heir, the estate must pay the transfer costs, being the attorney’s conveyancing fees, in accordance with a sliding scale determined from time to time. Executor’s fees: The executor is entitled to remuneration for the work involved in administering an estate. The prescribed tariff is 3.5% (plus VAT) of the gross value of the assets in the estate. In addition, an executor can charge 6% on all income collected on behalf of the deceased estate from the date of death until the winding up of the estate. The costs, as set out above, will vary from estate to estate. It often happens that an estate is solvent, meaning that the total value of the assets exceeds the total value of the liabilities, but there is insufficient cash in the estate to settle the debts and expenses. If there is a cash shortfall in an estate, the executor will approach the heirs to the residue of the estate to establish if they are able to pay the cash shortfall into the estate to avoid a sale of assets. If the heirs are unable or unwilling to do so, the executor may have no choice but to sell assets. Reference List: https://timesnetwork.co.za https://eb.momentum.co.za https://www.fisa.net.za While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.
Can a Creditor Sell the Home of a Debtor to Recover Outstanding Debt?
Most South Africans today, are overburdened and overwhelmed with debt and are struggling to repay creditors. According to recent statistics, a third of people in South Africa with credit are struggling to repay their debts. This means, there are approximately 10 million people who are three months or more behind on debt repayments. This article will explore under what circumstances can a creditor (someone to who you owe money) have your residential home or immovable property sold in execution to obtain payment of an outstanding debt after judgment has been granted in their favour. The case of Jaftha v Schoeman and Others, Van Rooyen v Stoltz and Others (Jaftha) concerned a person who was overburdened with debt and was unable to repay her creditors. The facts of the case were as follows: Ms Jaftha was unemployed, ill, and poor. She only had standard two education. In 1997, Ms Jaftha was granted a state housing subsidy with which she bought a home where she lived with her two children. In 1998, Ms Jaftha borrowed R250 from Ms Skaarnek which was to be repaid in instalments. Ms Jaftha was unable to repay the amount owed and Ms Skaarnek approached a law firm to enforce payment. In March 2001, she was informed by Markotter Attorneys that she would need to pay R5,500, including accrued interest, otherwise, her residential home would be sold. Ms Jaftha was unable to pay this amount and was forced to vacate her home following its sale in execution for R5,000 on 17 August 2001. The Constitutional Court in the Jaftha case, clearly outlined the legal process which ought to be followed before a creditor can have the residential home of a debtor sold in execution to recover payment of an outstanding debt. In principle, the court held that a creditor after obtaining judgement, must first resort to attaching the movable property of a debtor to enforce payment of an outstanding debt. It is only once there is insufficient movable property to satisfy a debt, then a creditor may proceed to apply to the court to request the immovable property or residential home of a debtor to be sold to obtain payment of the debt. Therefore, a creditor cannot, as a first resort, have a debtor’s residential home sold to obtain payment when the debtor has not paid their debts. The court introduced in this case the mechanism of “judicial oversight”, which means, that before the residential home of a debtor may be sold to satisfy a debt, the court must grant permission to do so. The following factors will be taken into consideration by the court before permitting such an order: the circumstances in which the debt was incurred; any attempts made by the debtor to pay off the debt; the financial situation of the parties; the amount of the debt; whether the debtor is employed or has a source of income to pay off the debt and any other factor relevant to the particular facts of the case before the court. However, recent case law developments have indicated that it may be possible for creditors, in specific circumstances, to have the immovable property of a debtor sold to obtain payment of a debt as a first resort. Effectively, this opens the possibility of creditors being able to bypass the requirement of attaching the movable property of a debtor first. The Supreme Court of Appeal in the Mapea v M.A Selota Attorneys and Another case has recently endorsed the decision of Silva v Transcope Transport Consultants and Another in which the court held that where a debtor acts in a tricky manner and deliberately frustrates the creditors’ efforts to obtain payment. The court can exercise its discretion to allow execution against the debtor’s immovable property without resorting to the attachment of movable property first. The implication of this case is that a court can order the sale of immovable property to obtain payment in instances where a debtor is wilfully and intentionally acting in a way that frustrates the creditors’ right to obtain payment. For example, if the debtor has fled the country to avoid payment, or the debtor is hiding their movable property from the creditor. In conclusion, a creditor cannot, as a first resort, have the residential home of a debtor attached to recover payment of an outstanding debt. The creditor is first required to enforce payment by attaching the movable property of a debtor. However, there may be instances where a creditor can surpass/bypass attaching the movable property of a debtor and could have the immovable property of a debtor sold as a first resort. Reference List: https://www.theoutlier.co.za/economy/2024-04-08/87042/south-africans-debt-problem (accessed: 19-07-2024). Jaftha v Schoeman and Others, Van Rooyen v Stoltz and Others (CCT74/03) [2004] ZACC 25; 2005 (2) SA 140 (CC). Mapea v M.A Selota Attorneys and Another [2023] ZAGPPHC 437. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.
Contractual Consequences of Breaking Off an Engagement
Contrary to popular belief, an engagement is not a mere social agreement. South African common law recognises an engagement (or promise to marry) as a contract from which some contractual remedies may flow. The engagement contract is, however, a contract sui generis (of its own kind). Therefore, it gives rise to certain contractual remedies. If a party to an engagement refuses to marry or unduly delays the marriage, their conduct may constitute a breach of promise. Lawful termination of an engagement When an engagement is terminated lawfully no claim for damages will arise. An engagement can be terminated lawfully through the death of either party, mutual agreement to terminate, withdrawal of parental or ministerial consent (in the case of minors) and unilateral lawful repudiation. Unilateral lawful repudiation allows an innocent party to withdraw from the engagement if there is iusta causa (just cause). Just cause is present when there is a sound reason, which renders the prospect of a happy marriage unlikely, such as material misrepresentation or wrongful conduct. Unlawful termination and its consequences Unlawful termination is termination without just cause. A party who terminates an engagement unlawfully may be held liable for damages (based on the law of contract) and satisfaction (based on the law of delict). What are the contractual damages for unlawful termination? The wronged party will have a claim for breach of promise, which gives rise to claims for real damages and claims for prospective loss. A claim for real damages allows the wronged party to claim all reasonable expenses that they have incurred as a result of the proposed marriage. The Supreme Court of Appeal (SCA) has, however, stated in an obiter remark in Van Jaarsveld v Bridges 2010 4 SA 558 (SCA) (herein after referred to as “Van Jaarsveld”) that the basis for such expenses “do not flow from the breach of promise per se but from a number of express or tacit agreements reached between the parties”. It still remains that the wronged party is entitled to such a claim. Claims for prospective loss are more controversial. The starting point for such a claim is positive interesse, meaning that the wronged party must be placed in the position they would have been in, had the contractual obligation been fulfilled. When this principle is applied in an unqualified way the wronged party may have a claim for half of the estate of the defendant and maintenance that would have been received during the marriage if they are able to prove that the marriage would have been in community of property. This is extremely speculative, and the court will not make such an award. Therefore, positive interesse is tempered by factors such as the expected length of the marriage, the age of the wronged party and the possibility of remarriage. The SCA is critical of these claims. In the case of Sepheri v Scanlan 2008 1 SA 322 (C) (herein after referred to as “Sepheri”) the court questioned the constitutionality of these claims and whether it is rational for an engagement to have consequences seemingly more severe than divorce seeing as the fault system is still applied. In Van Jaarsveld the court mentioned in its obiter that the calculation of prospective losses is “not capable of ascertainment…remote and speculative”. The SCA also confirmed in Van Jaarsveld that “the current approach to engagements does not reflect the current boni mores or public policy considerations based on the values of our Constitution”. The Effect of Cloete v Maritz on Future Contractual Claims for Breach of Promise In Cloete v Maritz 2013 5 SA 448 (WCC) (herein after referred to as “Cloete”) the plaintiff inter alia claimed damages reflecting her prospective loss. The defendant raised a special plea in which he claimed that this is no longer a valid cause of action in South Africa. The High Court found the previously mentioned obiter in Van Jaarsveld to be highly persuasive (although it was not binding on the court) and agreed that the Constitution requires a reconsideration of claims for prospective loss in light of the public’s prevailing mores. The special plea was accordingly upheld, and the court held that claims for prospective loss as a contractual remedy are no longer permissible under South African law. This new approach is in line with the notion in Van Jaarsveld that “an engagement is… more of an unenforceable pactum de contrahendo providing a spatium deliberandi – a time to get to know each other better and to decide whether or not to marry”. The decision in Cloete v Maritz is not currently binding on courts for future cases of breach of promise, because it is merely a High Court decision and must be confirmed. However, the decision remains strongly persuasive alongside the obiter remarks of the of SCA in Van Jaarsveld. It is therefore unlikely that courts will allow claims for prospective loss in the future, especially considering Section 39(2) read with Section 173 of the Constitution and their mero motu duty to develop the common law which is in this case clearly outdated. References: Cloete v Maritz 2013 5 SA 448 (WCC). Constitution of the Republic of South Africa, 1996. Sepheri v Scanlan 2008 1 SA 322 (C). Thabane T “A Contract of Engagement as an Unenforceable Pactum de Contrahendo under South African Law: Distilling Lessons for Lesotho Courts” (2018) 32 Speculum Juris 54-65. Van Heerden B, A Skelton & Z du Toit (eds) Family Law in South Africa 2 ed (2021), Cape Town: Oxford University Press Southern Africa (Pty) Ltd. Van Jaarsveld v Bridges 2010 4 SA 558 (SCA). While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.
The Subdivision of Agricultural Land Act No. 70 of 1970 Explained: Part 2
When considering the subdivision of agricultural land or dealing with inherited farmland that may be subject to disputes, there are several important factors to keep in mind. The Subdivision of Agricultural Land Act No. 70 of 1970 regulates the subdivision of agricultural land and elaborates on various aspects within the Act. This includes definitions relevant to the operation, actions that are excluded and prohibited by the Act, and rules governing the succession of subdivided agricultural land. In Part 2 of our series, “Explaining the Subdivision of Agricultural Land Act No. 70 of 1970,” we will examine the actions prohibited in relation to the subdivision of agricultural land, including any activities that constitute such subdivision. Additionally, we will explore the available remedies for violations of these provisions. Once again, it is emphasised that the primary purpose of The Subdivision of Agricultural Land Act No. 70 of 1970 (hereafter referred to as “the Act”) is to prevent the subdivision of farming units or their creation when such units are not economically viable. This objective is essentially achieved through the Act as the Minister of Agriculture, Land Reform and Rural Development of South Africa has to give his or her consent before any subdivision may lawfully be effected. The first three actions, which are prohibited by the Act, are: agricultural land may not be subdivided; no undivided share in agricultural land shall vest in any other person if such undivided share is not already held by a person; and no part of such undivided share in agricultural land shall vest in any other person if such part is not yet held by another person. The fourth action, which is prohibited, concerns the leasing of agricultural land and the renewal of such lease. The Act states that no one may enter into a lease for which the period of such lease is 10 years or longer. Neither may the length of the lease be the natural life of the lessee and/or the life of any other mentioned person in such lease. Further actions that are prohibited surrounding the leasing of agricultural land by the lessee, are the renewal of such lease either by the continuation of the original lease or by entering into a new lease and such continued and/or renewed lease being for an indefinite period or for the combined period of 10 years. The following actions are prohibited by the Act, except where such actions relate to the purposes of a mine as defined in section 1 of the Mines and Works Act. These actions include the selling or advertising for the sale of a portion of agricultural land, whether or not the latter is surveyed or contains any building thereon. Additionally, the sale or granting of a right to such a portion is prohibited if it extends for more than 10 years, lasts for the lifetime of any individual, or is granted to the same person in consecutive periods totalling more than 10 years. Section 3(f) of the Act states that no area of jurisdiction, local area, development area, peri-urban area or other area referred to in paragraphs (a) and (b) of the definition of “agricultural land” in section 1 of the Act, shall be established on, or enlarged to include any agricultural land. Lastly, it is necessary to provide public notice when a plan concerning agricultural land, or any part of it, has been submitted or prepared under the relevant ordinance. Therefore, if a person finds themselves in a situation where they are involved in the subdivision of agricultural land that aligns with any of the scenarios described above, such activities will be prohibited under the Act and deemed null and void. This means that such actions will need the prior consent of the Minister in order to comply with the Act. In part 3 of the series on “The Subdivision of Agricultural Land Act No. 70 of 1970 Explained”, we shall look at the procedure on how to apply for consent as required by the Minister. This will include the imposition, enforcement, or withdrawal of conditions by him or her, as well as any miscellaneous provisions. References: T Sewapa “Subdivision of Agricultural Farmland” 2016 p 1. Section 3(a)-(c) of the Act. Section 3(d) of the Act. 27 of 1956. Section 3(e)(i)-(ii) of the Act. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.
Understanding Tenant Rights to Property Possession
It often happens that a tenant, for whatever reason, refuses, neglects or is unable to pay rent and falls into arrears. A landlord, frustrated with the tenant and the legal eviction process, may be tempted to find ways to get rid of the tenant. Cutting off water and electricity, changing locks, and using intimidation tactics are just some of the examples being used by landlords to dispossess a tenant. The tenant, however, is protected by law and has a right to undisturbed use and enjoyment of the property for the duration of the lease agreement. When a situation arises that disturbs this use and enjoyment, a tenant may approach the court for a spoliation order, otherwise known as a mandament van spolie, to restore his possession and/or use of the property. This article briefly explains the application and what needs to be proved by the tenant for the successful application of a spoliation order. The history and basis of a mandament van spolie South African property law is rooted in Roman and Roman-Dutch law. A distinction is drawn between ownership and possession, and different remedies exist to protect these rights. Ownership is seen as a real right and an owner can protect their right to property by the rei vindicatio action. The right to property, on the other hand, is the right to possess and use the thing and not a right to the thing itself, which is attributed to the owner of the thing. Only certain rights are protected, and they include servitutal rights (e.g. right of way or access to water) and contractual rights found in lease agreements (e.g. rights to electricity, water, and telecommunications). When an application is made, the court’s focus should not be directed at the merits of the case – it is not relevant at the time who the owner of the property is. The only factor that the court needs to establish is whether the applicant had possession and use of the property or thing and that their right to possess the property or use thereof was unlawfully interfered with (spoliated). The protection of specific performance (contractual right) cannot be enforced by using a spoliation application. For example, a lessee cannot use a spoliation application if the lessor refuses to hand over the keys to the lessee before occupation takes place, or if a tenant refuses to vacate a property after it is sold and a new tenant needs to take occupation. In these instances, the party will have to find recourse in contractual remedies or the eviction process. The application process and implications of a spoliation order A mandament van spolie is a remedy to restore possession and is usually brought on an ex parte urgent basis. Ex parte means that you do not have to give notice of the application to the other party before it is heard by the court. Its objective is to restore the possession of the applicant to the status it had before spoliation took place. The applicant will bring an application on notice or ex parte, and then an interim order with a return date (rule nisi) will be issued. The applicant must satisfy two requirements: that they were in peaceful, undisturbed possession and use of the property and that they were unlawfully deprived of that possession. The applicant will file a founding affidavit to set out the facts and establish the requirements. After an interim order is granted, the landlord is ordered to restore possession to the tenant. The Sheriff of the Court can be instructed to assist the applicant if the landlord still refuses to restore possession to the tenant. The landlord may file an answering affidavit and on the return date (rule nisi) the landlord will have the opportunity to prove that he legally took possession. The spoliation order is final; however, it can be taken on appeal. A landlord must be weary of tactics that will make him guilty of taking the law into his own hands. A spoliation order is not often refused, and the court may order that the landlord pay the costs of the application. The tenant may also lawfully refuse to pay rent while he is unlawfully deprived of the use and enjoyment of the property. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.
The Pivotal Role of Technology in E-Conveyancing
Legal conveyancing is a crucial aspect of property transactions in South Africa. It involves the transfer of property ownership from one party to another, and historically, this process has been known for its paperwork-intensive nature and time-consuming procedures. However, in recent years, technology has emerged as a game-changer in the field of legal conveyancing, streamlining processes, reducing delays, and improving overall efficiency. In this article, we will explore the pivotal role of technology in modernising legal conveyancing in South Africa. The traditional conveyancing process Before delving into the role of technology, it is essential to understand the traditional conveyancing process in South Africa. Property transactions involve a huge number of manual tasks, including title deed searches, drafting of sale agreements, and obtaining various certificates. This process is not only time-consuming but also prone to errors and delays. Parties often have to physically visit government offices and banks, leading to inefficiencies and increased costs. THE DIGITAL REVOLUTION: E-CONVEYANCING The advent of technology, particularly in the form of e-conveyancing, has brought about significant changes to the traditional process. E-conveyancing leverages digital tools and platforms to streamline property transactions. Here are some of the key ways in which technology has transformed legal conveyancing: Online property registers: One of the most significant advancements is the creation of online property registers, which provide easy access to property information. Property buyers and sellers can now conduct title deed searches, check property histories, and obtain essential documents online, reducing the time and effort required for due diligence. Electronic signatures: Technology has enabled the use of electronic signatures, allowing parties to sign documents digitally. This eliminates the need for physical presence and paper documents, making the process faster and more convenient. Automated workflows: Conveyancing software and platforms offer automated workflows that guide practitioners through each step of the transaction. This ensures that all necessary tasks are completed in the correct order, reducing the risk of errors and omissions. Secure online payments: Technology has made it possible to facilitate secure online payments, reducing the reliance on physical checks and bank visits for financial transactions related to property transfers. Communication and collaboration: Digital tools enable efficient communication and collaboration between all parties involved in a property transaction, including buyers, sellers, attorneys, estate agents, and government departments. This real-time connectivity reduces delays and improves transparency. CHALLENGES AND REGULATORY FRAMEWORK While technology has revolutionised legal conveyancing in South Africa, there are challenges and considerations that need to be addressed: Security and privacy: Ensuring the security and privacy of sensitive data in online transactions is crucial. Regulations and cybersecurity measures must be in place to protect parties from fraud and data breaches. Training and adoption: Legal practitioners and stakeholders must adapt to new technologies and undergo training to use e-conveyancing platforms effectively. Regulatory compliance: There is a need for comprehensive regulatory frameworks to govern e-conveyancing processes and ensure their legality and fairness. Digital divide: It is essential to address the digital divide to ensure that all citizens, regardless of their technological proficiency, can participate in property transactions without discrimination. Technology has undoubtedly played a pivotal role in modernising legal conveyancing in South Africa. The transition from traditional, paper-based processes to e-conveyancing has significantly improved efficiency, reduced costs, and minimised errors in property transactions. As technology continues to evolve, it is crucial for the legal profession, government authorities, and stakeholders to work together to create a robust and secure e-conveyancing ecosystem that benefits all South Africans involved in property transactions. Embracing technology in legal conveyancing is not just a convenience but a necessity for a more accessible and efficient property market in South Africa. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.
The omission of a single word can lead to a will being contested
The contents of an “inelegant and very badly drafted” will were recently the subject of a dispute in the South Gauteng High Court, in the matter Strauss vs Strauss and Others. The plaintiff instituted action claiming that the joint will of his parents not only made provision for the situation where they died within 30 days of each other, but also if the survivor died after the expiry of the 30-day period without having made a subsequent will. The first and second defendants are the plaintiff’s sisters. The late Mr and Mrs Strauss, the parents of the plaintiff and the defendants, were married in community of property. They made a mutual will on 27 March 2014. The will stipulated that in the event of the death of one of them, the surviving spouse shall inherit the estate of the other and be nominated as executor or executrix. In the event of them passing away at the same time or within 30 days and the surviving spouse had not made a new will, then in terms of clause 4.2: “Only if we die simultaneously or within 30 days of each other, in such circumstances in which the survivor does not make a further will, then in that case we bequeath the entirety of our estate as follows:…”. Mr Strauss passed away in 2015 and Mrs Strauss three years later. She never made a new will. The question now is whether clause 4.2 is applicable or whether the estate must devolve in accordance with the law of intestate succession. The plaintiff alleges that clause 4.2 must be interpreted to also apply when the two testators died more than thirty days apart and the surviving spouse had not made a new will. The word “or” must then be read into the clause so that it reads as follows: “Only if we die simultaneously or within 30 days of each other, or in such circumstances in which the survivor does not make a further will, then in that case we bequeath the entirety of our estate as follows:…”. The defendants, however, contended for a different interpretation according to which the whole estate would devolve in terms of the law of intestate succession if the surviving spouse failed to make a new will within 30 days. They argued that the word to be read into the text, if one is to be read into the text at all, is the word “and”. The clause would then read as follows: “Only if we die simultaneously or within 30 days of each other, and in such circumstances in which the survivor does not make a further will, then in that case we bequeath the entirety of our estate as follows:…”. The court took cognisance of the common law presumption against intestacy as well as the principles of the interpretation of documents. The court held that a court should always attempt to attach an interpretation to the wording of a will that will lead to a sensible and not a nonsensical meaning. The court held that the only sensible interpretation of clause 4.2 is to be found by reading in the word “or”, thus for the clause to read: “Only if we die simultaneously or within 30 days of each other, or in such circumstances in which the survivor does not make a further will, then in that case we bequeath the entirety of our estate as follows:…”. The court ruled in favour of the plaintiff and awarded him costs, including the costs of senior counsel. The omission of a single word can lead to a will being invalid with the result that the estate devolves in terms of the law of intestate succession, and not according to the wishes of the deceased. It is advisable to obtain assistance from an attorney or a fiduciary expert with the drafting or amendment of your will. Reference list: 1. Strauss v Strauss and Others (2020/2236) [2023] ZAGPJHC 377 (24 April 2023) 2. The Intestate Succession Act, 81 of 1987 While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup
How to proceed with divorce when your spouse cannot be found
Rule 44(1) of the Uniform Rules of Court states that documents requesting a divorce or marriage annulment must be personally delivered to the person it concerns unless the court allows a different service. But what if the sheriff can’t deliver the documents because the person has disappeared or moved abroad? This article will explain alternative service methods the court might approve when personal service isn’t feasible. Alternative methods of service: Substituted service If the person who needs to receive a divorce summons (the defendant) cannot be found, you can ask the court to allow the notice to be published in a newspaper instead. This process is called substituted service and is done by way of a Notice of Motion where the names and status of the parties are described in full, with the necessary averment that the defendant’s residential and work addresses are unknown to the plaintiff (applicant). The application must also set out the following: (1). Why the court has jurisdiction. (2). What the cause is (i.e. divorce due to irretrievable breakdown of marriage relationship). (3). What attempts were made by the plaintiff to trace the defendant. Further averment must also be made regarding which newspaper the defendant usually reads and that the summons will thus come to their attention as a result of the publication in the newspaper. A combined summons is issued before the substituted service order, of which a shortened version will be published in the newspaper. Edictal citation If a defendant is abroad an application must be brought to the High Cout by way of an ex parte application wherein: – The parties are fully described. – The cause is set out. – An explanation of where the defendant is. – A prayer that the court permits that the divorce summons may be served in another country by way of edictal citation, with a one-month period given to respond or defend. After an order is granted, an ordinary summons is issued and served in terms of the stipulation of Rule 4(3) and (4) of the Uniform Rules of Court. Rule 4(3) states that service of any process in a foreign country shall be effected by any person who is, according to a certificate issued by the head of the South African Diplomatic or Counsellor Mission, authorised to serve such process. In terms of Rule 4(5) a sworn translation in the official language of the country where the summons is to be served must be made and has to be served with a certified copy of the summons, if the language of the summons differs from the language of the country of service. It is clear from the above that if personal service of divorce summons is not possible, the court can still order that the summons be served either by way of substituted service or edictal citation. Reference list: 1. Uniform Rules of Court 2. Matrimonial Matters and Divorce, Training Guide, L.E.A.D Law Society of South Africa 3. High Court Practice Training Guide, L.E.A.D Law Society of South Africa While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup
Understanding your rights: Breach and penalty clauses in property agreements
When buying immovable property, the offer to purchase serves as an agreement between buyer and seller. Within this document, certain clauses demand meticulous attention from both parties. These clauses outline the rights, obligations, and procedures that govern the transaction. Understanding these key provisions is essential for ensuring that the interests of both the buyer and seller are protected and that the purchase process proceeds smoothly and transparently. Breach of contract clause: Once the offer to purchase is signed by both parties, it is a valid contract. The relationship between the seller and purchaser is governed by the law of contract. A standard clause in the offer to purchase is a breach of contract clause. This breach occurs when either party, without a lawful reason, fails to honour their obligation under the contract. In this event, the aggrieved party, depending on the wording of the breach clause, will have to allow the defaulting party to remedy the breach. Should they fail to comply, the aggrieved party typically has the option to either cancel the contract and seek damages or to file a court application for specific performance. This means they can demand the enforcement of the contract, requiring the defaulting party to proceed with the transfer as agreed. If the aggrieved party elects to cancel and claim damages, it is at this stage that they must take into consideration the Conventional Penalties Act 15 of 1962 (the Act), when quantifying the damages to be paid by the defaulting party. The following paragraph deals further in detail with the claim for damages. Forfeiture clause (penalty) or non-refundable clause: It’s a misconception that the seller is entitled to the deposit, held in the conveyancer’s trust account, in the event of the purchaser breaching the contract. The forfeiture (penalty) clause might create the impression to the seller that should the contract be cancelled due to a breach by the purchaser, the seller will be entitled to the deposit paid or any monies paid into the conveyancer’s trust account. However, after the cancellation of the contract, the seller will not be automatically entitled to retain all the amounts as a claim for damages or as a non-refundable deposit. In terms of clause 3 of the Act: “if upon hearing of a claim of penalties, it appears to the court that such penalty is out of proportion to the prejudice suffered by the creditor, by reason of the act or omission in respect of which penalty was stipulated, the court may reduce the penalty to such an extent as it may consider equitable in the circumstances…” The case of Matthews vs Pretorius (1984) (3) (SA547W), deals with a penalty clause. If the amount being claimed for damages is out of proportion to the detriment of the guilty party, the court may reduce the penalty to such an extent as it may consider equitable under the circumstances, taking in due consideration the interests of all concerned. Estate agents should be wary of creating the expectation to the seller that they will be entitled to the non-refundable deposit, or any monies paid to the conveyancer or estate agent, should the contract be cancelled due to a breach by the purchaser. Conveyancers do not have the authority to be judge and jury when dealing with the monies in their trust account. If there is a dispute between the parties regarding the refund of any monies due to breach and cancellation of the contract, the conveyancer should be guided either by an agreement between the parties or a court order made on how the monies are to be distributed. Rouwkoop clause: Occasionally, an offer to purchase may include a rouwkoop clause, which must be clearly differentiated from the forfeiture (penalty) clause. Rouwkoop is a common law concept and in its simplest form means “regret purchase”. The rouwkoop clause in an offer to purchase affords a party to the contract to pay a sum of money if they wish to withdraw from the contract. The parties would have agreed on a fair and reasonable amount payable, which is considered rouwkoop. The primary distinction between the forfeiture (penalty) clause and the rouwkoop clause lies in the fact that the latter does not require the party wishing to withdraw from the contract to be in breach of it. Unfortunately, there is confusion as to the interpretation between monies paid in respect of penalties and rouwkoop. It is therefore important to have a clear understanding of the difference between the forfeiture (penalty) clause and the rouwkoop clause, to avoid unnecessary litigation. Reference List: 1. Conventional Penalties Act 15 of 1962 2. Matthews vs Pretorius (1984) (3) (SA547W) While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup