Navigating antenuptial agreements in South Africa: Your questions answered
Preparing for marriage in South Africa involves several critical decisions, one of which is the antenuptial agreement (AN). This legal document is vital for dictating the management of assets and finances within a marriage. To help you understand and effectively navigate antenuptial agreements, we’ve compiled answers to some commonly asked questions. Frequently asked questions about antenuptial agreements What is an Antenuptial Agreement? An antenuptial agreement, commonly known as a prenup, is a legal contract established before marriage, outlining the management of assets and finances during and potentially after the marriage. What are the types of antenuptial agreements in South Africa? With accrual: Shares the growth of each spouse’s estate during the marriage, considering only assets acquired after marriage. Without accrual: Each party retains their individual assets and liabilities, both during and after the marriage, often chosen when substantial assets are involved before marriage. Why is full disclosure of assets important? Full transparency in disclosing all assets and liabilities is crucial for creating a fair and valid agreement. How are future inheritances and gifts treated? The treatment of future inheritances and gifts—whether included in the joint estate or kept separate—should be clearly specified in the agreement. What about debts and liabilities? The agreement should outline how debts incurred before and during the marriage will be managed. How does business ownership affect an AN? The impact of business ownership on the marriage must be addressed, particularly vital for entrepreneurs and business owners. What are the legal requirements for an AN? The AN must be signed, notarised before the wedding, and registered at the Deeds Office within three months of the marriage. Can I draft an AN after getting married? Generally, an AN should be drafted before the wedding. However, changes are possible, but they require a court application and are subject to certain legal procedures. Both parties must agree to the changes. Changing your marital regime after the wedding can be costly, so it is advisable to draft your AN before marriage. How do I know if an antenuptial agreement is fair? A fair antenuptial agreement should reflect the interests of both parties equitably. It’s advisable to have independent legal counsel for each party to ensure fairness and validity. An antenuptial agreement is not just a legal formality; it’s a practical tool for managing your joint financial life. By considering these key points, couples in South Africa can enter into marriage with clarity and confidence about their financial future. Remember, seeking legal advice is essential in ensuring that your antenuptial agreement is fair, valid, and reflective of both parties’ wishes and needs. 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 intent to revoke a last will and testament
The Western Cape High Court recently examined whether a person had the intent to revoke their existing will. The deceased, hospitalised with COVID-19, expressed a desire to revoke their will and draft a new one. However, the court found that the necessary intent to revoke was absent, emphasising the importance of complying with the Wills Act’s requirements. The question of whether a person had the intention to revoke an existing will was recently considered by the Western Cape High Court in the matter Roux NO and Another v Stemmet NO and Others. The late Mr Stemmet (“the deceased”) executed a will on 23 October 2018 in terms of which his entire estate was bequeathed to his children. In July 2021, the deceased contracted the COVID-19 virus and as a result, he was admitted to the Medi-Clinic in Worcester. On 25 July 2021, the deceased indicated to his farm manager, Gawie Willemse (“Mr Willemse”), that he wished to revoke his 2018 will and requested the latter’s assistance in this regard. On 30 July 2021, assisted by Medi-Clinic personnel, the deceased contacted Mr Willemse via video call. During this video call, the deceased again expressed to Mr Willemse, his wish to revoke the 2018 will and that his final instructions regarding the disposal of his estate were that his entire estate was to be left to the Willemse Boerdery Trust. During the video call, the deceased requested Mr Willemse’s help to engage attorneys to draft a will reflecting his final wishes. After the video call, the deceased was transferred to the intensive care unit of the hospital. In accordance with the deceased’s wishes, Mr Willemse conveyed the deceased’s instructions regarding the disposal of his estate to attorney Louis Benade (“Mr Benade”), to prepare a will in accordance with the deceased’s instructions, as expressed in the video call. Mr Benade did as was requested and on 31 July 2021, provided Mr Willemse with a duly prepared will (“the draft will”). On the same day, Mr Willemse attended the Medi-Clinic to deliver the draft will to the deceased, but he was refused access to the ICU and prevented from delivering it personally to the deceased due to the COVID restrictions in place at the time. Mr Willemse’s request to the hospital personnel to deliver the draft will to the deceased, was refused. Mr Willemse proceeded to leave the draft will in the care of the hospital personnel, with a request that it be delivered to the deceased as soon as possible. During the evening of 31 July 2021, Medi-Clinic personnel attempted to deliver the draft will personally to the deceased, but the latter was unable to receive the document as he had been induced into a coma for purposes of being intubated. The deceased never came out of the coma, never recovered, and died without signing the draft will. The trustees of the trust instituted an action for the 2018 will to be declared revoked under sec 2A(c) of the Wills Act, 7 of 1953 (“the Act”), and the draft will to be his last will. Section 2A of the Act provides that a court may declare a will to be revoked if it is satisfied that a testator, in this instance, the deceased: “…drafted another document or before his death caused such document to be drafted, by which he intended to revoke his will or part of his will and the court shall declare the will or the part concerned, as the case may be, to be revoked.” The court found that the deceased did not personally draft the will, the document which the trustees rely upon as revoking the deceased’s 2018 will and that the drafter was the attorney, Mr Benade. The instruction to Mr Benade to draft the new will was given by Mr Willemse, and not the deceased. The court also found that the deceased never physically received the draft will, never perused it, never approved of its content, and never signed it in the presence of witnesses as required by section 2(1)(a) of the Act. Furthermore, accepting that he was in a coma at the time that the draft will was delivered to him by nursing personnel, it follows that the deceased was unaware of the content and was, at least objectively speaking, not in a position to confirm that the content of the draft will correctly expressed his intentions. Accordingly, the court found that the necessary animus revocandi, the intent to revoke or rescind, was absent. Courts are wary to declare documents that do not comply with the requirements of the Wills Act as valid wills. It is advisable to obtain assistance from an attorney or a fiduciary expert with the drafting or amendment of your last will and testament, as and when your circumstances or wishes change. Reference list: -Roux N.O and Another v Stemmet N.O and Others (17064/2022) [2023] ZAWCHC 222 -Wills Act, 7 of 1953 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 Succeed Group
Intending to buy a state-funded house? Here’s what you need to know
The Constitution of South Africa enshrines the right of everyone to have access to adequate housing. This places a mandatory duty on the state to achieve this right for all South Africans through its available resources. The government introduced the Reconstruction and Development Programme (RDP) as its social housing programme to provide low-income families with sustainable housing. Despite the substantial commitment by the government, there have been cases of illegal sales and fraudulent activities related to state-funded houses. The purpose of this article is to establish whether state-funded houses may be sold. Section 10A of the Housing Amendment Act (hereafter referred to as the “act”) is the relevant provision to consider in the regulation of the sale of state-funded housing. Section 10A of the act provides that notwithstanding any provisions to the contrary in any other law, it shall be a condition of every housing subsidy, as defined in the Code, granted to a natural person in terms of any national housing programme for the construction or purchase of a dwelling or serviced site, that such person shall not sell or otherwise alienate his or her dwelling or site within a period of eight years from the date on which the property was acquired by that person unless the dwelling or site has first been offered to the relevant provincial housing department. In the case of Adul v William and Others, the appellant concluded an agreement of sale and purchased a property from the respondents. Upon establishing that the property was subject to a restrictive condition imposed by section 10A of the act, the parties subsequently concluded another agreement wherein they agreed that the appellant would rent the property until the restrictive condition expired. The appellant was also required to pay municipal rates and taxes in terms of the second agreement. The appellant fell in arrears with paying the municipal rates and taxes. The respondents instituted eviction proceedings against the appellant in the Magistrate’s Court. The appellant was ordered to vacate the property, which she refused. Aggrieved by the order, the appellant appealed the decision to the High Court and among her issues were that: The act did not explicitly state that an agreement made in violation of section 10A would be rendered null and void. The lower court (court a quo) should have considered the inconvenience and impropriety caused by declaring the sale agreement null and void. The court found both agreements to be void ab initio (have no legal effect from inception), and thus nullity because their conclusion contravened the restrictive provisions of s10A of the act. Neither the appellant nor the respondents are the owners of the property. The ownership reverted to the relevant department of housing. The court held that the interpretation of s10A of the Act must be viewed in the context of the government’s constitutional obligation to provide adequate housing for indigent persons. The absence of the restriction provided for in s10A of the act would permit persons who were not indigent, to buy state-subsidised houses meant for the poor to profit from the sale or lease of such properties on the open market. Clearly, that would frustrate the objective of the act. Considering the foregoing, the act restricts the voluntary sale of state-funded houses, because it goes against its main objective. The provisions of section 10A of the act need to be clearly considered by the RDP prospective buyers before they pay any purchase price or conclude any agreement of sale. Reference list: Abdul v Williams and Others (CA227/2018) [2019] ZAECGHC 103 The Housing Amendment Act 4 of 2021 WRITTEN BY SINAZO MAU-MAU Sinazo Mau-Mau is an Attorney at Miller Bosman Le Roux Attorneys. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither 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
Estate planning in South Africa: Essential questions answered
Estate planning is a critical part of financial planning, yet it often gets overlooked. This process involves drafting a will, assigning assets to beneficiaries, and understanding how a deceased estate will be administered. To shed light on this topic, here are answers to some frequently asked questions about estate planning that might assist in helping you navigate the complexities of estates. What happens if I pass away without a will? When a person dies without a will (or with an invalid will), their estate is settled according to the laws of intestate succession. This scenario is far from ideal, causing potential delays and administrative issues during an already difficult period for your loved ones. The straightforward solution to avoid such circumstances is to create a legally valid will. Can my partner and I create a joint will? It is possible to create joint wills, particularly when the intention is for the estate of the first spouse to be transferred to the surviving spouse. However, it is recommended to seek guidance from a fiduciary expert when setting up a joint will. Do I require a separate will for my foreign assets? Generally, your South African will covers your worldwide assets. However, depending on the type of assets and their locations, you may need a foreign will. For instance, owning immovable property or shares in an overseas company may require a foreign will. Am I free to bequeath my assets to anyone? South African law does grant testators freedom of testation, meaning you can bequeath your assets to any individual or organisation, with a few exceptions. For instance, your will must not contain any provision that’s illegal, against public policy, or impossible to fulfil. Should I include my policies in my will? Life policies or endowments are directly paid to the beneficiaries you have nominated, and there is no requirement to include them in your will. Mentioning them in your will could potentially create confusion. Similarly, benefits from pension, provident, preservation, or retirement annuity funds are distributed to your financial dependents by the trustees of the respective funds. Will my spouse have access to our bank accounts after my death? Bank accounts are generally expected to be frozen upon your death, but there is typically a delay before this takes place. However, your executor can work with the bank and make suitable arrangements to enable your spouse to continue conducting transactions without interruption. Can I leave my primary residence to my child while allowing my spouse to live there after my death? Yes, there are mechanisms available that allow you to leave your primary residence to your child while ensuring your spouse can retain the right to live there. However, this aspect of estate planning can be intricate, and it is advisable to seek guidance from an expert when dealing with such situations. Should I establish a testamentary trust in my will? If you wish to protect and preserve assets for minor children, mentally or physically disabled beneficiaries, or a surviving spouse, setting up a testamentary trust in your will can be an effective solution. Can I nominate my spouse as my executor? Although it is an option to designate your spouse as the executor of your estate, it’s worth considering that the responsibilities and time commitment involved can be burdensome, especially during a time of grief. It may be beneficial to appoint a fiduciary expert as a co-executor alongside your spouse to alleviate the load and ensure efficient management of your estate. Estate planning is a multi-faceted process that requires careful thought and expert advice. While this article provides a general overview, it’s always recommended to seek professional guidance when drafting a will, bequeathing assets, or dealing with any other aspects of estate planning. Don’t leave your estate planning to chance. Secure your legacy and the future of your loved ones by seeking expert advice today. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither 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 and should not be construed as legal advice. Powered by SucceedGroup
Can you change your marital regime after marriage?
A marital regime determines how parties’ assets will be managed and divided during their marriage and in the event of divorce or death. Changing the marital regime can provide parties with greater financial flexibility and protection. Understanding marital regimes In South Africa, there are three main marital regimes: In community of property: This is the default regime where both spouses share equal ownership of all assets and liabilities acquired before and during the marriage. Out of community of property with the inclusion of the accrual: Under this regime, each spouse maintains separate estates during the marriage, but the growth of their respective estates is calculated and shared equally upon the dissolution of the marriage. Out of community of property without accrual: In this regime, each partner’s assets and liabilities remain separate throughout the marriage, and there is no sharing of accruals upon divorce or death. In terms of section 21 of the Matrimonial Property Act, the marital regime can be changed by mutual consent and by way of an application by the parties to the High Court. Such an application requires compliance with specific procedures to ensure its validity. Both parties need to understand the implications and consequences of changing the marital regime and proper reason must be given for the change of the marital regime. It is important that there is full and proper disclosure when seeking to change a marital regime. The failure to provide full and accurate information may result in the order not being granted by the Court. The parties’ legal representatives will draft a postnuptial contract to reflect the newly chosen martial regime. This contract will specify the new regime the parties wish to adopt, such as transitioning from “in community of property” to “out of community of property with accrual”. The notarial contract must be attested by a notary public. The notary public will verify the identities of the parties and ensure they fully understand the terms and consequences of the proposed changes. The High Court will review the proposed changes and assess whether they are fair and reasonable. The court’s primary concern is to protect the rights of both parties and any potential creditors. It is important that the interests of the creditors, who might be affected by the change, are protected and therefore the court will give proper consideration before granting such an order. After the High Court’s approval and a court order is granted, the amended marital regime must be published in the Government Gazette and two local newspapers to inform creditors and any other interested parties of the change. Once the public notice has been completed, the amended marital regime is registered at the Deeds Office. Registration will finalise the changes and ensure their enforceability against third parties. It is crucial for the parties to carefully consider the implications of changing their marital regime. Each regime has its advantages and disadvantages, and seeking professional legal advice can help parties make an informed decision that aligns with their financial goals and preferences. Changing the marital regime is a legal process that requires careful consideration and adherence to specific procedures. It provides parties with an opportunity to adjust their financial arrangements to better suit their needs and protect their interests. By following the necessary steps, parties can navigate the process smoothly and ensure their new marital regime aligns with their future plans and financial security. WRITTEN BY MARITZA DU PREEZ Maritza du Preez is an Associate at Miller Bosman Le Roux Attorneys. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither 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
Domicilium Citandi Et Executandi in South African Law
How is it possible that someone can obtain judgment against me, without my knowledge of any summons issued against me or a court date to state my side of the story? Well, in our law this could happen if you agreed to a domicilium address without notifying other parties about a change therein when you move away from said address What is domicilium citandi et executandi? Domicilium citandi et executandi (hereinafter, “domicilium address”) is a Latin term that means “house for being summoned and executed upon.” In South African law, it refers to the address that a person nominates in a contract as the address where they will receive all legal notices and processes. This address can be a physical address, such as a home or business address, or it can be an email address. Where did the concept of a domicilium address originate? The concept of a domicilium address originated in Roman law. In Roman law, a person’s domicile address was the place where they were a resident for legal purposes. This meant that all legal notices and processes had to be served at the person’s domicile. How is a domicilium address used in today’s contracts? A domicilium address is commonly used in today’s contracts. This is because it allows parties to a contract to specify the address where they want to receive all legal notices and processes. This can be helpful in ensuring that parties are aware of any legal proceedings that are being brought against them. What are the pitfalls of a domicilium address? There are a few potential pitfalls associated with a domicilium address. One pitfall is that if a person moves and does not notify the other party to the contract of their new address, they may not receive legal notices or processes that are served at their old address. This could result in a default judgment being entered against them. Another pitfall is that if a person’s domicilium address is a physical address, and that address becomes inaccessible, they may not be able to receive legal notices or processes that are served at that address. This could also result in a default judgment being entered against them. In the matter of Amcoal Colleries Ltd v Truter 1990 (1) SA 1 (A), the Supreme Court of Appeal held that a person’s domicilium citandi et executandi can be chosen in a contract, and that service of process at that address is good service, even if the person is not present at the time. How can you avoid judgment against you when the domicilium address is no longer a place you can access? Firstly, you should make sure that you notify the other party to the contract of your new address as soon as possible. Secondly, you should keep track of your mail and make sure that you open all of it, even if it is addressed to your old address. Thirdly, you should check your credit report regularly to make sure that there are no judgments against you that you are unaware of. Example: Suppose John signs a lease agreement with a landlord. The lease agreement includes a clause that states that John’s domicilium address is the address of the premises. John then moves from the premises to another place without notifying the landlord of his new address. If the landlord then sues John for breach of the lease, the landlord can serve the summons on John at the address of the premises, being the domicilium address. Even if John does not receive the summons, he will still be bound by the judgment if he does not respond to the lawsuit. Domicilium citandi et executandi is an important concept in South African law and it is important to understand the implications thereof before you sign a contract. If you are unsure about what your domicilium address is, you can consult with an attorney. 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. Powered by SucceedGroup
Properly executing a will is extremely important.
I gave instructions to my attorney to prepare a last will and testament for me as my will no longer reflected my wishes. At my request, my attorney emailed the will to me with clear instructions as to how I should go about signing it. I asked my neighbours to act and sign as witnesses. My neighbours signed the will on all the pages and left before I signed. I then signed the will on all the pages. I am now worried about the validity of my will as the email from my attorney states that I have to sign the will in the presence of two witnesses. Is my will valid? The formalities for the valid execution of a will are set out in the Wills Act. Section 2 of the Wills Act, Act 7 of 1953, reads: “No will executed… shall be valid unless the will is signed at the end thereof by the testator… and such signature is made by the testator… in the presence of two or more competent witnesses present at the same time and such witnesses attest and sign the will in the presence of the testator and of each other…”. Therefore, in order for a will to be valid, it has to be signed in the presence of two independent witnesses, both witnesses being present when the will is signed by the testator. The two witnesses signed your will in the presence of each other, but not in your presence. A similar set of facts presented itself in a court case recently heard by the Gauteng Local Division of the High Court. In this matter, the two daughters of the deceased, who lost out on their inheritance in terms of the will of their father, claimed that it was never their father’s intention for his much younger lover to inherit his total estate. The testator was 85 years old at the time of his death and he had been living with a woman 38 years his junior for 8 years. The deceased executed two wills during his lifetime. One on 6 November 2011 (“the 2011 will”) and another on 7 January 2014 (“the 2014 will”). The 2014 will was signed shortly before his death leaving the bulk of his estate to his much younger lover. The daughters of the deceased claimed the 2014 will was invalid as there were “suspicious” circumstances. They claimed their father either did not sign the 2014 will himself or, if he did, that he lacked the mental capacity to execute a valid will by reason of dementia. The daughters of the deceased were not successful in proving that the deceased’s signature was a forgery despite the fact that three handwriting experts testified. Another witness called to testify was a witness to the 2014 will. Her testimony focused on the circumstances surrounding the signing of the 2014 will. She signed the will as a witness. She testified that she and her husband met the deceased in the street. As they were acquainted they naturally engaged in social conversation. She and her husband were informed that the deceased was on his way to the police station to sign a will. She and her husband were asked if they would accompany the deceased in order to sign the will as witnesses. They were assured that the process would not take long so they agreed to assist. She and her husband signed the will and immediately left. They were the first to sign the will. At the time they signed the will the deceased had not signed the will. They left before witnessing the deceased signing the will. Hence, the 2014 will was not signed by the deceased in their presence even though it reflects their respective signatures as witnesses. The evidence assessed collectively established that the deceased signed the 2011 will and also that he signed the 2014 will. However, the 2014 will was signed by the deceased after the two witnesses to the will had already left and therefore was signed in their absence. The court referred to Section 2 of the Wills Act in terms whereof no will is valid unless the signature made by the testator is made “in the presence of two or more competent witnesses present at the same time”. The court confirmed that this requirement is mandatory and, if not met, the will is not valid for want of compliance with a statutorily required formality. The court therefore found the 2014 will to be invalid and, as there was no evidence that there was any irregularity in the execution of the 2011 will, the 2011 will was declared the will of the deceased. This judgement of the High Court once again emphasizes the importance of complying with the Wills Act. Your will is invalid, and it is advisable for you to print the will again and to sign it in the presence of two competent witnesses or, even better, for you to make an appointment with your attorney in order to sign the will at his office. 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.
Top 10 causes of insurance claims
A FIRE at a busy warehouse leaves a company struggling to replace its buffer stock; a ransomware attack paralyses a company’s IT systems; the use of industrial adhesives in manufacturing results in a costly product recall. Every day, companies around the globe (together with their insurers) experience losses, in multiple forms, in the millions of dollars. Over the past five years, fire and ex-plosion, natural catastrophes, and faulty workmanship or maintenance have been the major causes of loss by value of insurance claims, according to the Global Claims Review 2022 from Allianz Global Corporate & Specialty (AGCS). Insurance claims from companies have become more severe over the past five years due to factors such as higher property and asset values, more complex supply chains, and the growing concentration of exposures in one location, such as in natural catastrophe-prone areas. The future does not look brighter anytime soon. Companies and their insurers have shown resilience to weather the loss impact of the pandemic, but the ongoing war in Ukraine, a spike in the cost and frequency of business interruption losses, and the sustained elevated level of cyber claims are creating new challenges. At the same time, the top two causes of claims-fires, and natural hazards-remain significant loss drivers for companies. Last but not least, the impact of soaring inflation around the world will bring further pressure on claims costs. Inflation puts undervaluation of assets in the spotlight Ultimately, inflation brings pressure on claims costs from multiple angles. Property and construction insurance claims, in particular, are exposed to higher inflation, as rebuilds and repairs are linked to the cost of materials and labour, while shortages and longer delivery times inflate business interruption (BI) values. Other lines of insurance, such as directors and officers, professional indemnity, and general liability, are also susceptible to inflationary pressures through rising legal defence costs and higher settlements. Replacement costs more, and replacement takes longer-and this means both the property damage and the business interruption loss are likely to be significantly higher. Updating insured values for all new contracts is therefore a pressing concern for insurers, brokers, and insureds. If this doesn’t happen, our clients run the risk of not being fully reimbursed in the event of a loss, while insurers run the risk of under-pricing exposures. The insurance market has already seen a number of claims where there has been a significant gap between the insured’s declared value and the actual replacement value. For example, in a claim for a commercial property destroyed in the 2021 Colorado wildfires, the rebuild value was almost twice the declared value, due to a combination of inflation, demand surge, and underinsurance. What are the top causes of business insurance claims? In one of the industry’s most comprehensive analyses, AGCS has identified the top causes of loss for companies from more than 530 000 insurance claims in over 200 countries and territories that it has been involved with between 2017 and 2021 (typically a number of insurers provide coverage jointly considering the huge values at stake in the corporate sector). These claims have an approximate value of €88.7 billion, which means that the insurance companies involved have paid out-on average-over €48 million every day for five years to cover losses. The analysis shows that almost 75% of financial losses arise from the top 10 causes of loss, while the top three causes account for close to half (45%) of the value. Despite improvements in risk management and fire prevention, fire / explosion (excluding wildfires) is the largest single identified cause of corporate insurance losses, accounting for 21% of the value of all claims. Fires have resulted in more than €18 billion worth of insurance claims over five years, according to the analysis. Even the average claim totals around €1.5 million. Natural catastrophes (15%) ranks as the second top cause of loss globally by value of claims. Collectively, the top five causes (based on more than 20 000 claims around the world) – hurricanes / tornados (29%); storm (19%); flood (14%); frost / ice / snow (9%) and earthquake / tsunami (6%) account for 77% of the value of all disaster claims. Hurricanes and tornados are the most expensive cause of loss, driven by the fact that two of the past five Atlantic hurricane seasons (2017 and 2021) now rank among the three most active and costliest on record, as well as recent record-breaking tornado activity. Insurers are also seeing new scenarios. During 2021, the unprecedented cold weather known as the ‘Texas Big Freeze’ in the US, as well as flooding in Germany, stood out as events that were both large but had unexpected claims. For example, the ‘Texas Big Freeze’ caused huge disruption to infrastructure and manufacturing, with many companies forced into shutdowns by widespread power outages, resulting in property damage and in some large contingent business interruption (CBI) losses. This event alone is estimated to have caused economic losses up to $150 billion. Faulty workmanship / maintenance incidents are the third top cause of loss overall (accounting for 9% by value) and are also the second most frequent driver of claims (accounting for 7% by number, ranking only behind damaged goods with 11%). Costly incidents can include collapse of building / structure / subsidence from faulty work, faulty manufacturing of products / components, or incorrect design. Top causes of loss in South Africa Fires generate the most expensive losses for South African businesses, accounting for more than 60% of the value of all claims over the past five years. Faulty workmanship incidents are another major cause of loss (20%) while natural catastrophes rank third, with storm losses the most frequent driver of these claims. Hailstorm events, while uncommon, can be costly when they do occur if one happens in a metropolitan area. Water damage generates the highest number of corporate insurance claims in South Africa (30%+), although one in five claims also result from crime / wilful acts. South Africa experienced three major claims events in the past three years. COVID-19
I’ve been pulled over by the police, what are my rights?
Being pulled over by the police is often an intimidating and frightening experience for many. In many situations, it’s an experience in which the police exploit motorists who do not know their rights and in other situations, it’s one in which drivers receive a go-to jail card for non-compliance with a police official’s instructions. It is therefore of utmost importance that all road users are aware of their rights and responsibilities when being pulled over by a police official. According to the Arrive Alive guidelines, there is a distinction between a roadblock and a roadside check. Roadblocks A roadblock, as the name suggests, is when then the police or traffic officials cordon off a road in both directions, physically “blocking” the flow of traffic, so that the police can stop and inspect a vehicle for purposes of carrying out their constitutional mandate. Roadblocks are regulated in terms of the South African Police Service Act (hereinafter the SAPS Act). Section 13(8) of the SAPS Act provides that “The National or Provincial Commissioner may, where it is reasonable in the circumstances in order to exercise a power or perform a function referred to in section 215 of the Constitution, in writing authorise a member under his or her command, to set up a roadblock or roadblocks on any public road in a particular area or to set up a checkpoint or checkpoints at any public place in a particular area.” In summation, section 13(8) provides that: written authorisation that specifies the date, approximate duration, place, and object of the roadblock must be issued; proper signage, traffic cones, and barriers must be set up near the roadblock; a search and seizure without a warrant is allowed in circumstances where it is reasonably necessary to achieve the object specified in the written authorisation; and failure to stop at a roadblock is a criminal offence punishable by law. It is important to note that the power to give written consent by the National or Provincial Police Commissioner is a power that has been delegated to relevant station commanders. A motorist being pulled over at a roadblock has the right to request a police officer to produce proof of the abovementioned written consent/authorisation and the police official will be obligated to produce such written authorisation. If the police official refuses to produce such authorisation, he/she must be reported to the station commander, provincial commissioner, or national commissioner. Exceptions to the abovementioned roadblock rules It is also important to note that there are certain circumstances that may warrant a deviation from the abovementioned rules. A roadblock may still be set up and a search and seizure may still be conducted without prior written authorisation if there are reasonable grounds to suspect that: a person who has committed an offence in terms of Schedule 1 of the Criminal Procedure Act, has been involved in the commission thereof is, or is about to be, travelling in a motor vehicle in a particular area; a person who is a witness to such an offence is absconding and is, or is about to be, travelling in a motor vehicle in a particular area and that a warrant for his or her arrest has been issued, or that such a warrant will be issued if the information at the disposal of the law enforcement official is brought to the attention of the magistrate, regional magistrate or judge referred to in that section, but that the delay in obtaining such warrant will defeat the object of the roadblock; a person who is reasonably suspected of intending to commit an offence and who may be prevented from committing such an offence by the setting up of a roadblock is, or is about to be, travelling in a motor vehicle in a particular area; a person who is a fugitive, after having escaped from lawful custody is, or is about to be, travelling in a motor vehicle in a particular area; any object which is concerned in; may afford evidence of; or is intended to be used in the commission of an offence and which is, or is about to be, transported in a motor vehicle in a particular area and that a search warrant will be issued by a Court and that any delay in obtaining one will lead to the loss of the opportunity to act. Roadside checks A roadside check differs considerably form a roadblock in that it involves a traffic officer often stationed on the side of the road who then pulls drivers over at random, thus the flow of traffic is not completely blocked off or severely affected. Roadside checks are regulated in terms of the National Road Traffic Act (hereinafter referred to the NRTA). The NRTA does not permit search and seizure without a warrant, but also does not forbid law enforcement officers from doing so. At a roadside check, a traffic officer may do the following: Demand to see any document in terms of road traffic and transport legislation. Seize the document if it is fraudulent. Search a person or property if they consent, or when there are reasonable grounds to do so. Temporarily forbid a person to continue to drive or be in charge of a vehicle if they seem mentally or physically unfit to do so. Require any person to furnish their name, address, and other particulars if the officer reasonably suspects the person of having committed an offence. Ascertain the dimensions of the load on, or the mass, axle mass load, or axle unit mass load of, any vehicle, or the mass of any combination of vehicles, loaded or unloaded, and if necessary for the purpose of ascertaining such mass. What motorists may do when being pulled over As a motorist, you are entitled to demand to see an official’s certificate of appointment and you are also entitled to see the written authorisation for a roadblock. You are entitled to refuse to submit to a search at a roadside check unless there exists reasonable
Private prosecution: Is justice attainable even if the state fails us?
Members of the public, and specifically victims or those close to them, are often disheartened by the National Prosecuting Authority (“NPA”) and its decisions not to prosecute persons who have allegedly committed a criminal offence. The Criminal Procedure Act (“the CPA”), however, contains two sections that can be relied on to bypass the NPA, by privately prosecuting persons who have allegedly committed criminal acts. These sections have recently been shoved in the spotlight thanks to the successful private prosecution of Faizel Hendricks, who was found guilty in January 2022 of murdering his partner Rochelle Naidoo in 2005. This is the first time that an accused has been convicted after being privately prosecuted. The first section that details the terms in which a person can be privately prosecuted is found in section 7 of the CPA, where it states that an individual may institute proceedings if a certificate has been issued by the Director of Public Prosecutions (“DPP”) confirming that the NPA does not intend to prosecute the alleged criminal. This certificate is also known as a certificate nolle prosequi. Section 7(1) of the CPA states the following: “(1) In any case in which a Director of Public Prosecutions declines to prosecute for an alleged offence: (a) any private person who proves some substantial and peculiar interest in the issue of the trial arising out of some injury which he individually suffered in consequence of the commission of the said offence; (b) a husband, if the said offence was committed in respect of his wife; (c) the wife or child or, if there is no wife or child, any of the next of kin of any deceased person, if the death of such person is alleged to have been caused by the said offence; or (d) the legal guardian or curator of a minor or lunatic, if the said offence was committed against his ward, May… either in person or by a legal representative, institute and conduct a prosecution in respect of such offence in any court competent to try that offence.” The second is section 8 of the CPA, which makes provision for a private prosecution to be instated under a statutory right. Section 8(1) reads as follows: “(1) Anybody upon which or person upon whom the right to prosecute in respect of any offence is expressly conferred by law, may institute and conduct a prosecution in respect of such offence in any court competent to try that offence.” Section 8(2) further states that private prosecution under this section may only be instituted after consultation with the Attorney General, and only if the Attorney General has withdrawn his/her right to prosecute in respect of any specified offence or specified category of offences. Private prosecutions under section 8 can be done by natural or juristic persons and do not require a certificate as referred to in section 7 of the CPA. Hendricks was prosecuted in terms of section 7 of the CPA, when Rochelle Naidoo’s parents instituted action after the Cape Town District Court, during its inquest in 2008, found that it could not determine who held the firearm at the fatal moment when Rochelle Naidoo was shot (Hendricks averred that she committed suicide). The DPP declined to prosecute and Rochelle’s parents subsequently instituted proceedings in the Malmesbury Regional Court, where Hendricks was found guilty of murder in July 2014 and sentenced to 15 years imprisonment. Hendricks appealed the verdict but was unsuccessful in his appeal as the Western Cape High Court confirmed the conviction and sentence in January 2022. It is clear from sections 7 and 8 of the CPA, as well as Mr Hendricks’ conviction, that justice can be obtained by victims and/or their families in circumstances where the NPA decides not to prosecute a person who has allegedly committed criminal acts. However, this justice is neither swift nor affordable when one considers the formalities that must be complied with and the accused’s right to appeal, which can cause significant delays for the persons instituting the private prosecution as well as significant legal costs (which include expert witnesses’ fees, such as pathologists and ballistic experts, which would normally be paid for by the State). The private prosecution of Faizel Hendricks confirms this as it took the Naidoo family 10 years to finalise this matter to attain justice. Yusuf Asmall, Rochelle’s father, confirmed the high financial and personal costs involved in this matter when he stated that “[i]t’s been a painful journey. It was a costly affair”. In conclusion, the CPA does provide possible avenues for victims and their families to attain justice in circumstances where the NPA decides not to prosecute. However, these avenues are only available to those who have significant resources and time, and are thus only available to a select group of South Africans. Reference List: https://www.iol.co.za/capeargus/news/family-finds-closure-after-17-year-battle-to-get-justice-for-their-slain-daughter-32cc2d3b-0b92-4e3d-b108-ab6ae2c32c79 Criminal Procedure Act This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)