Moving regulations during the lockdown
We’ve all felt like it – the hairs on the back of your neck standing up, sure someone is keeping an eye on you, watching as you receive a DVD box set that was for some reason labelled “essential” on the online store, sneaking in at 09:20 after the morning jog you were sure was shorter yesterday, or absent-mindedly fixing your mask as you stand in the chocolate aisle at the supermarket. Feeling like you are crossing a line has become part of daily life and moving during the lockdown may have many people feeling just as guilty. But as with most regulations, things have changed (except for the mask part – it’s best to just ignore the tickle till you get to your car). Moving during Level 3 is allowed, and with the effects of the lockdown touching so many lives, a very possible occurrence as landlords and tenants alike seek their footing. The good news is that moving safely is entirely possible. The most important element is following adequate safety measurements throughout the process. Businesses operating under Level 3 are all required to have an adequate safety plan in place, with a COVID-19 Compliance Officer that oversees the company’s compliance with the necessary preventative measures. These requirements ensure that estate agents and transport companies keep every person involved in the move safe. These are the most important guidelines to follow when moving: Get the necessary permits from a SAPS office that will allow you to travel during the lockdown. Adhere to social distancing and keep a minimum of 1,5m between yourself and the transport team. Have sanitiser handy to offer to all parties before and after the move. Sanitise the surfaces of the old property once furniture has been removed; sanitise surfaces in the new property both before and after furniture has been moved in, as well as the furniture itself. Be kind with your words, not your actions, for the time being. These precautions are there for a reason. The real estate industry relies heavily on multi-channel interaction and is, consequently, at high risk. This has been seen in the Johannesburg and Pretoria deeds offices, which were forced to close temporarily on June 12 after conveyancers in the building were tested positive for the virus, and the Cape Town deeds office, which has already closed twice for the same reasons. While moving is allowed, tenants are still encouraged to move into a new safety bubble only if it is truly necessary. When moving is truly the only option, ensure that the necessary safety precautions are adhered to. 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)
Taking your will out of lockdown
The last few weeks have seen huge changes in the way we live our lives. The demand for wills has surged during the COVID-19 pandemic, which is understandable in the midst of a grave health crisis. As attorneys, we are able to work from home and have access to the necessary technology that enables agile and secure working, meaning that we are able to engage with and service clients as we would in the office. Instructions can be taken telephonically or by email and the drafted will can be sent to the client by email for approval and amendment. Once the contents of the will have been finalised, it has to be signed. The Wills Act, 7 of 1953 (“the Act”), requires the following for the proper execution of a valid will: “2. Formalities required in the execution of a will. (1) Subject to the provisions of section 3 bis (a) no will executed… shall be valid unless (i) the will is signed at the end thereof by the testator…; and (ii) such signature is made by the testator…, in the presence of two or more competent witnesses present at the same time; and (iii) such witnesses attest and sign the will in the presence of the testator and each other…; and (iv) if the will consists of more than one page, each page other than the page on which it ends is also signed by the testator… anywhere on the page.” As far as the competency of witnesses are concerned, the Act reads as follows: “4A. Competency of persons involved in execution of a will. (1) Any person who attests and signs a will as a witness… or who writes out the will or any part thereof in his own handwriting, and the person who is the spouse of such person at the time of the execution of the will, shall be disqualified from receiving any benefit from that will.” A beneficiary to a will should not sign as a witness, because he/she will then be disqualified from receiving any benefit from that will. Anyone who signs a will as a witness is disqualified from receiving any benefit under the will. A benefit includes nomination as executor, trustee or guardian. Despite this provision, someone who would have inherited under the rules of intestate succession will not be disqualified, but the inheritance will be limited to the intestate portion the person would have inherited. Thus, a person creating a will and two competent witnesses have to be in the same place and all sign the document to ensure it is valid. During the lockdown, the two-witness rule is hindered by social distancing and is creating practical – but not insurmountable – challenges. People with existing health conditions and the elderly are the most likely to want to sort out their will right now, but they are also the most threatened by close contact with others. Several clients have enquired about practical ways to have wills signed during the lockdown. One option would be to sign your will outside in the presence of two neighbours who are not displaying coronavirus symptoms. They should remain at least two metres away from you, in a place where they are still able to see you sign the will. The witnesses also need to sign the will so you would then place it in a convenient spot visible to all parties and move away. Both witnesses could separately approach and sign and as long as precautions are taken such as using your own pens, making no physical contact, wearing gloves, conducting the process quickly, and adhering to strict handwashing measures afterwards. Another option would be for you to approach two essential workers, many of whom are risking their lives to continue serving the country. For instance, when attending the local supermarket for your essential requirements — such as food — or when attending the pharmacy for medication, request the workers there to witness your will. If a terminally ill patient in a hospital wishes to sign a will, it should be possible to arrange for the will to be signed in the presence of two nursing staff members. In circumstances where none of the above is an option and there is absolutely no other way to validly execute the will, the common sense approach would be to date and sign the will properly and draft and sign a memorandum or letter making it clear why the will was not signed by witnesses but stating that the will is intended to be the last will and testament. This course of action will make an application under Section 2(3) of the Act, to validate such a document as the will of the deceased, much more likely to succeed. Section 2(3) of the Act reads as follows: “2. Formalities required in the execution of a will. (3) If a court is satisfied that a document or the amendment of a document drafted or executed by a person who has died since the drafting or execution thereof, was intended to be his will or an amendment of his will, the court shall order the Master to accept that document, or that document as amended, for the purposes of the Administration of Estates Act, 66 of 1965, as a will, although it does not comply with all the formalities for the execution or amendment of wills referred to in subsection (1).” In order to ensure that the will is valid and to avoid the delay and expense of a High Court application, we invite clients to come and see us once things are back to normal to review and, if necessary, re-sign their wills. These are highly unusual circumstances, so wills written during this time may well need to be revisited in the future. Reference List: https://www.justice.gov.za https://www.moneyobserver.com https://www.legalcheek.com Wills Act, 7 of 1953. 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
Impact of the coronavirus on contractual obligations
The novel coronavirus, also known as COVID-19, has caused major disruptions worldwide since its outbreak in December 2019 in Wuhan, China. The virus has also recently spread to South Africa and our government has reacted swiftly by introducing a state of emergency and promulgating certain regulations. Restrictions initially only limited the number of people who were allowed to be in attendance at social events. These restrictions were increased to a complete “lockdown” between 27 March 2020 and 16 April 2020. The above restrictions as imposed by the South African Government has certain severe consequences. One such instance is weddings were couples (or their parents) enter in a number of contractual agreements for services such as catering, décor and venue hire. Deposits are almost always payable for these services and there are often clauses according to which the deposit is forfeited in the event of the wedding being cancelled on short notice or penalties if the wedding is moved to a different date. The question thus arises: what happens when one must cancel or postpone a wedding due to the outbreak of a deadly virus and government’s restrictions following such an event which has the effect of prohibiting your wedding? The answer to the above question can be found in the law of contract. Contractual agreements can be varied or discharged by operation of law in cases where there is a supervening impossibility (also sometimes referred to as an act of God).[1] The general position in South African law is that if performance in terms of a contract becomes objectively impossible after the conclusion thereof due to an unforeseen and unavoidable event, then the obligation to perform in terms of the contract will be extinguished.[2] It is thus clear from the above that two requirements must be met before a contractual agreement will be terminated due to a supervening impossibility. Firstly, performance must be objectively impossible. This requirement is only met if no one can offer the required performance. It is not sufficient if only the specific party to the contract cannot offer the performance anymore.[3] Performance will also be deemed to be objectively impossible in circumstances where it is factually possible but has become unlawful due to new legislation.[4] This requirement is present in the current circumstances where performance, depending on the size of the wedding and type of venue, has become impossible due to legislation effectively prohibiting the event. The second requirement is that the impossibility must be unavoidable for the reasonable person. This means that the impossibility must not have been caused due to the fault of one of the contracting parties. It is often said that the impossibility must be the result of vis maior or casus fortuitus.[5]It is clear that this requirement is met in the current circumstances since the reasonable person would not have foreseen the outbreak of a virus on a global scale which has brought entire nations and economies to a halt. Such a reasonable person would also not have been able to foresee the promulgation of legislation restricting social movement and events. The result of a supervening impossibility as discussed above is that the contractual relationship comes to an end.[6] The termination of all contractual obligations creates new obligations to return whatever has been delivered in terms of the contract up until that point, such as, for example, a deposit which was paid to a wedding venue. This obligation to return can be enforced by way of an action for unjustified enrichment.[7] In conclusion, those who have paid deposits or even the whole sum owed in terms of a contract which cannot proceed anymore due to the coronavirus and subsequent legislative restrictions should be able to get refunded. However, this is subject to the contract in which the parties may have agreed to deal with a supervening impossibility differently. Members of the public are encouraged to consult an attorney to discuss their specific contract and circumstances. Reference List: D Hutchison & CJ Pretorius (eds) Kontraktereg in Suid-Afrika R H Christie The Law of Contract 2001 Kudu Granite Operations (Pty) Ltd v Caterna Ltd 2003 (5) SA 193 (SCA). Bayley v Harwood 1954 (3) SA 498 (A). [1] R H Christie The Law of Contract 2001 p 280. [2] D Hutchison & CJ Pretorius (eds) Kontraktereg in Suid-Afrika 2012 p 402. [3] 403. [4] 403. See also Bayley v Harwood 1954 (3) SA 498 (A). [5] D Hutchison & CJ Pretorius (eds) Kontraktereg in Suid-Afrika 2012 p 404. [6] 405. [7] Kudu Granite Operations (Pty) Ltd v Caterna Ltd 2003 (5) SA 193 (SCA) 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)