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
Understanding living wills
When one thinks of a will, the first thing that comes to mind is probably a last will and testament. This type of will expresses a person’s wishes after they have died. However, a living will, despite sharing some similarities with a last will and testament, is not the same thing. It can be described as a legal document outlining an individual’s preferences for medical decisions in the event they are unable to communicate these wishes themselves. It can be a very helpful tool for family members and healthcare providers when they are faced with making medical decisions on someone’s behalf. Validity requirements for a living will Like most legal documents, certain requirements must be met for the document to be considered valid and binding. According to the Living Will Society of South Africa and the South African Medical Association, there are four requirements which must be met for a living will to be valid. 1. The person making the living will must be 18 years or older. 2. At the time of making the living will, the person must have the necessary mental capacity. 3. The person making the living will should only be allowed to refuse medical treatment if they have been fully informed of the condition and the proposed treatment thereof. 4. The doctor treating the person must be satisfied that they have not changed their mind. Requirement 1: This requirement is very straightforward. A living will can only be valid if the person who made such a will is 18 years or older. Requirement 2: This requirement states that a person must have the necessary mental capacity to make a living will, which means that they must understand the decisions they are making. Under normal circumstances, proving that an individual has the necessary capacity is not a difficult task, however, this becomes more complicated if the individual is elderly or has an intellectual disability. An individual’s mental capacity can be assessed in several ways and by several professionals such as a doctor, psychologist, or psychiatrist. Requirement 3: The third requirement holds that a person may only refuse medical treatment where they have been informed of their condition and the possible treatment thereof. This requirement will be unproblematic where an individual has a chronic or terminal illness and decides to draft a living will after finding out their diagnosis. In this instance, the individual is likely to have discussed all possible treatments with their healthcare provider and are properly informed. However, this can become slightly more problematic when a person suddenly becomes ill or in case of an emergency. Requirement 4: This requirement is focused on the subjective opinion of a specific healthcare provider. Doctors have an obligation to protect their patients’ lives, subject to certain limitations of course. As a result, withholding lifesaving treatments will have to be carefully considered by healthcare providers. The subjective nature of this requirement means that the individual has less control. However, some steps can be taken to assist healthcare providers in their decisions. For example, one can ensure that their living will has recently been attested to. The more recently a living will has been drafted and signed, the less likely healthcare providers are to question a patient’s possible change of heart. This can be particularly helpful where the living will has been signed after life changes in an individual’s life such as getting married or having children. Formal requirements for a living will There are no prescribed requirements for the format of a living will. However, some important details should be included such as: 1. Full names as they appear on the individual’s identity document. 2. The current residential address of the individual. 3. A list of directives and what the individual does not consent to. 4. When and where the living will was signed. 5. The individual’s signature. 6. The full names and signatures of two witnesses who were present when the living will was signed by the individual. Should you wish to learn more about living wills or need assistance drafting living wills, contact us. 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
Registered antenuptial contracts vs agreements between spouses
The term ‘antenuptial contract’ can refer to either an informal contract or a contract complying with the formalities required by s 87 of the Deeds Registries Act 47 of 1937. The public is not always aware of the fact that a verbal or written contract can be binding inter partes (between the parties) because an antenuptial contract (“ANC”) is usually understood to mean a contract registered at the deeds office which regulates the matrimonial property between the parties and against third parties. This article briefly explores the above two concepts and case law dealing with the issues that arise when parties have both entered into a registered contract and a verbal or written agreement before or after marriage. In terms of the Deeds Registries Act 47 of 1937 (“the Act”), an antenuptial contract executed in South Africa shall be attested by a notary and shall be registered in the deeds registry within three months after the date of its execution or within such extended period as the court may on application allow. In the case of Ex Parte Minister of Native Affairs in re Molefe v Molefe 1946 AD 315, it was held that under common law, parties may mutually regulate their proprietary rights post-marriage through agreement, which holds binding force between them but does not extend to third parties. In B v B 820/2021 SCA the matter was heard on appeal from the Gauteng High Court. The Supreme Court of Appeal had to adjudicate on the validity of a separate agreement entered into by the parties after concluding a registered ANC, which excluded community of property and the accrual. The defendant in the main action claimed the enforcement of the separate agreement in her counterclaim. The separate agreement, among other things, included the payment of life-long maintenance to the wife on the death of the husband or by divorce. The court found that the separate agreement was indeed enforceable. The court’s reasoning in the above matter was that the ANC determines the matrimonial property regime and its effect on third parties, and the separate agreement does not attempt to change the marital regime. The agreement is valid and enforceable, and the court should uphold the principle of pacta sunt servanda (agreements must be kept). The agreement does not restrict the court’s discretion under the Divorce Act in terms of s 7(1) and s 7(2). The ANC and the separate agreement can coexist as long as they don’t contradict each other. When parties intend to change the matrimonial property system, an application should be made by both spouses in terms of Section 21 (1) of the Matrimonial Property Act and such change can only be effected by leave of the court. The court will grant leave if there are sound reasons for the proposed change, sufficient notice was given to any creditors of the parties, and no other person will be prejudiced by the proposed change. In Odendaal v Odendaal 2002 (1) SA 763 (W) the Court accepted the husband’s evidence that there was a verbal antenuptial agreement in terms of which they were married out of community of property, with the exclusion of the accrual system. Section 88 of the Deeds Registries Act further deals with postnuptial executions of antenuptial agreements and reads that a court may, subject to such conditions as it may deem desirable, authorise the execution of the notarial contract entered into after marriage but if the terms thereof were agreed upon between the intended spouses before the marriage was concluded. For an antenuptial contract to be valid and enforceable, it does not need to be registered. The effect of registering an antenuptial contract is that it gives notice to third parties on how matrimonial property must be dealt with and the necessary formalities that need to be complied with for obligations to be effective or valid against third parties. Therefore, contracts that have been entered into between spouses before marriage, whether it is verbal or written, will be valid between the spouses and will be enforceable. 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
The Perils of Using Chatgpt in The South African Legal Practice
Chat Generative Pre-Trained Transformer (ChatGPT), a powerful language generation model developed by OpenAI, has garnered significant worldwide attention and utilisation across various industries and professions. In South Africa, the legal profession is no exception. However, employing ChatGPT in legal practice comes with its own set of risks and dangers. This article sheds light on the potential perils of utilising ChatGPT within the legal sphere in South Africa, emphasising the importance of careful consideration and regulatory measures to mitigate these risks effectively. Accuracy and reliability issues: One of the primary concerns regarding the use of ChatGPT in the legal profession is its potential for inaccuracy and unreliability. ChatGPT is trained on historical data and relies heavily on human interaction to learn new facts which generate responses based on the patterns and information it has been trained on, but it lacks real-time judgment and critical evaluation capabilities. It was recently reported that lawyers arguing in a case in the Johannesburg Regional Court have been called out in a judgment for using fake references generated by ChatGPT. “When it comes to legal research, the efficiency of modern technology still needs to be infused with those of good old fashioned independent reading,” said Magistrate Arvin Chaitram of the situation. In this matter, although ChatGPT had referred to actual cases and given real citations, the citations related to different cases than the ones named. Ethical and legal responsibility: Whilst generative models like ChatGPT provide a great deal of opportunity to the profession, it does come with a large array of ethical and legal concerns which are mostly related to the complex structure of ChatGPT. Lawyers have a fundamental, ethical, and legal duty to provide accurate and competent advice to their clients. When utilising ChatGPT, lawyers may inadvertently shift some of this responsibility onto the AI system. If the AI-generated content proves to be incorrect or harmful, the lawyer will bear the professional and legal consequences thereof. Lawyers have a duty of technical competence and would be expected to understand how the Chatbot works and what the benefits and risks are if they are to use it in their practice. Lawyers who decide on ChatGPT will also have to be able to intelligibly explain the benefits and risks to their clients. Privacy and data security concerns: ChatGPT operates by processing and analysing large amounts of data to generate responses. Maintaining client confidentiality and protecting sensitive information is paramount in the legal field. At a privacy level, the use of ChatGPT may pose a threat to organisations. Section 1 of the OpenAI Privacy Policy collects information about the user’s browsing activities over time and across different websites. The site does not respond to “do not track” signals. This may pose a risk to the duty legal practitioners have to their clients. The Law Society of South Africa (LSSA) places duties on legal practitioners when using internet-based technologies and in its guidelines, prescribes that legal practitioners are required to take reasonable steps or reasonable protective measures to ensure that information provided by clients remains confidential. Lack of accountability and transparency: ChatGPT has been trained on vast quantities of data. It operates as a black-box model. Some of the data included may be proprietary. There can be concerns that ChatGPT may use such material in its response despite not being licensed by the copyright owner. Due to its nature, it’s challenging to ascertain how ChatGPT specifically generates specific responses, and this lack of transparency raises questions about accountability and the ability to contest or challenge AI-generated advice. In the legal profession transparency and accountability are vital for building trust and ensuring the legal system’s integrity. The main issues surrounding ChatGPT in the legal field include quality control, accuracy, ethical and privacy issues, and the fact that it is not specifically trained in the law. South Africa’s legal community therefore must exercise caution and prudence and do whatever is necessary to mitigate inherent risks associated with the use of ChatGPT. ChatGPT and similar AI technologies offer exciting potential for revolutionising the legal profession. ChatGPT should however be viewed as a tool to assist legal professionals rather than a complete replacement for human judgment, expertise, and experience. Careful consideration, ongoing research, regulation, and a clear understanding of the limitations and responsibilities when integrating AI into a legal practice is paramount in balancing the benefits of AI technology with the ethical and professional obligations of the legal profession. REFERENCE LIST: My Broadband Article “South African Lawyers use ChatGPT to argue a case – Get nailed after fake info” dated 9 July 2023 Bloomberg Law Analysis: “Would ChatGPT bring AI to Law Firms? Not anytime soon.” dated 28 December 2022. By Thomas Bacas De Rebus Article “Do Legal Practitioners Truly Understand the Danger of ChatGPT?” dated 1 September 2023 ENS Article “ChatGPT: A useful tool or risk for Lawyers?” Cliffe Decker Hofmeyr Article “Should I ask my Lawyer or should I just ChatGPT it?” dated 29 March 2023 While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of 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.
What Implications Does a Lien Have on Eviction Proceedings: Part 1.
In conflicts between property owners and tenants seeking compensation for property improvements before leaving, eviction proceedings are possible, but success depends on location and lease terms. “I have been renting out my property to tenants for the last couple of years and the time has come for them to vacate the property. The tenants, during the period of their lease, effected certain permanent extensions and renovations to the property and now refuse to vacate the property unless I reimburse them for the extensions and renovations that they made to my property. What are my options as the property owner?” The relationship between owners and tenants can become strained when the lease agreement comes to an end and there exist disputes between the parties, especially when such a dispute relates to who is to be held liable for the extensions, renovations and/or building work (hereafter collectively referred to as “improvements”) that have been made to the owner’s property by the tenant. Some tenants may argue that they have a lien over the said property until the owner reimburses or compensates the tenant for such improvements. A lien is defined as a right that the retentor (in these circumstances, the tenant) obtains when they are in possession of another person’s property (in these circumstances, the leased property) and effects or performs work or spends money on such property. The right, which the retentor acquires, is to retain the property in their possession as security for payment from the owner of the value of the debt that accrues due to the improvements or maintenance effected on the property. Considering the above, there are a few factors that need to be established to answer the question of what the rights of a property owner are when tenants refuse to vacate the property. Firstly, the property owner will need to disclose whether the property being rented is situated in a rural or urban area. The second question will be what terms were agreed to when the lease was concluded between the owner and the tenant. The respective answers to the above questions will be discussed in separate articles. Regarding the first question: In the 17th century the Estates of Holland promulgated the placaeten, which determined that a tenant who leases immovable property which is situated in a rural area does not have a lien over such property if they made any improvements thereto. The tenant thus cannot raise the existence of a lien as a defence to eviction proceedings instituted by the owner of the property, and the tenant will be required to vacate the property immediately without considering the improvements made to the property. The tenant will, however, have the option to institute a claim for the value of the improvements made at a later stage. This principle was confirmed by the court in the case of Business Aviation Corporation (Pty) Ltd and another v Rand Airport Holdings (Pty) Ltd [2007] 1 All SA 421 (SCA). The court further found that the placaeten does not apply to property situated in urban areas. As a result, a tenant who rents property that is situated in an urban area, and who effected improvements to that property, may allege the existence of a lien over the leased property in their favour. Consequently, if eviction proceedings are instituted by the property owner against the tenant, the alleged lien is a factor that the court will consider in such eviction proceedings, and which may carry substantial weight in the circumstances. In conclusion, tenants who have made improvements to an owner’s property in a rural area cannot claim a lien in their favour to retain the property, and this argument holds no weight in eviction proceedings once they’ve been initiated. On the other hand, a tenant who made improvements to an owner’s property situated in an urban area will not suffer the same fate, as the tenant’s lien will carry weight in eviction proceedings brought against them. However, it is important to note that the outcome of the aforementioned scenario may vary depending on the terms of the lease agreement concluded between the owner of the property and the tenant prior to the improvements having been made to the property. Thus, a property owner in both abovementioned scenarios will be able to institute eviction proceedings but the success of the proceedings may vary depending on whether the leased property is situated in an urban or rural area. Regarding lease agreements concluded for properties situated in urban areas, the outcomes may differ further based on the specific terms which the tenant and owner agreed to in the lease agreement. This will be discussed in part two. Reference list: United Building Society v Smookler’s Trustees and Golombick’s Trustee 1906 TS 623 at 627 – 628. LAWSA vol 15 par 54. The principles contained in the placaeten have been found to be accepted and received into South African law. Eviction proceedings in rural areas are done in terms of the Extension of Security of Tenure Act, 62 of 1997. Eviction proceedings in urban areas are done in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of 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.