Du Pre Le Roux Attorneys

DOMICILIUM CITANDI ET EXECUTANDI EXPLAINED

In South African law, it is possible for a Plaintiff obtain judgment against you without your knowledge and without you having received a letter of demand and summons.

This often happens where a person cites his address as his chosen domicilium and then moves without notifying the other party.

When stating your address as your domicilium, you choose the address at which you will receive all legal notices. The address must to be a physical address and not a post office box address. It is also possible to provide an email address.

In the matter of Amcoal vs Truter 1990 (1) SA 1 (A) it was confirmed that service of any document at the address chosen as the domicilium citandi et executandi will be considered good service, even if the person has left the address when the document is served.

It is therefore crucial that you notify all parties to all contracts that you enter into of any change in your address, being a physical address or an email address.

Contact Du Pre Le Roux Attorneys today for all your legal questions.
Tel: 0834172476
Email: [email protected]
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THE LAW AND THE PURCHASE OF AN IMMOVABLE PROPERTY BY UNMARRIED (BUT COHABITING) PARTNERS

Firstly, there must be a written cohabitation agreement in place between the parties which will stipulate each partner’s legal rights and obligations, especially in case of separation and death.

If a bond is to be registered over the immovable property, each partner’s financial situation will be considered to determine whether they can afford the said property. It is extremely important that the cohabiting partners must decide whether the bond will be in one or both their names and who will pay what towards the bond and other costs of the property. Each partner must keep record of everything they pay in respect of the property to avoid any dispute in the future.

It is also essential to stipulate (in the cohabitation agreement) what will happen to the property should the couple’s relationship comes to an end. Will one buy the other’s half share of the property or the property must be sold, the bond settled and the profit shared between the parties in equal shares?

Call Du Pre Le Roux Attorneys today to draft your cohabitation agreement by taking all the legal aspects into account and making sure the legal position is carefully stipulated.

DU PRE LE ROUX ATTORNEYS
083 417 2476
[email protected]
www.dplr.co.za

THE LAW AND THE PURCHASE OF AN IMMOVABLE PROPERTY BY UNMARRIED (BUT COHABITING) PARTNERS

Firstly, there must be a written cohabitation agreement in place between the parties which will stipulate each partner’s legal rights and obligations, especially in case of separation and death.

If a bond is to be registered over the immovable property, each partner’s financial situation will be considered to determine whether they can afford the said property. It is extremely important that the cohabiting partners must decide whether the bond will be in one or both their names and who will pay what towards the bond and other costs of the property. Each partner must keep record of everything they pay in respect of the property to avoid any dispute in the future.

It is also essential to stipulate (in the cohabitation agreement) what will happen to the property should the couple’s relationship comes to an end. Will one buy the other’s half share of the property or the property must be sold, the bond settled and the profit shared between the parties in equal shares?

Call Du Pre Le Roux Attorneys today to draft your cohabitation agreement by taking all the legal aspects into account and making sure the legal position is carefully stipulated.

DU PRE LE ROUX ATTORNEYS
083 417 2476
[email protected]

Home - Du Pre Le Roux Attorneys u Pre le Roux Attorneys strives to provide excellent service of a consistently high standard at an affordable rates

Remember to update your Will if you are getting married or after a finalised divorce!

If you get married in South Africa, the marriage will automatically be in community of property if you do not have an antenuptial contact drawn up. This essentially means that you and your spouse will have one joint estate with equal rights and responsibilities. You can therefore only bequeath 50% of this estate to heirs in your Will.

If you do enter into an antenuptial agreement, this must be included in your Will as there could for example be a claim for accrual after your death.

It is therefore important to update your Will when entering into an antenuptial contract as this will affect what happens to your property after your death.

The same is applicable after a divorce. In this regard Section 2B of the Wills Act states that if an ex-spouse passes away within 3 months after a divorce, an inheritance to your ex-spouse will be implemented unless specifically otherwise provided. So this section essentially gives you 3 months after your divorce to amend your Will, failing which your ex-spouse may inherit from your estate.

Contact Du Pre Le Roux Attorneys today to draft and/or amend your Will.

What are the legal requirements for starting your own business in South Africa?

There are quite a few legal requirements to comply with as recorded in the Companies Act that regulates businesses in our country.

It must first be decided what type of business you want to start and thereafter its legal structure.

In our law the following entities exist:

• Sole proprietorships;
• A private company;
• State owned enterprises;
• Non-profit companies;
• Partnerships;
• Personal liability companies;
• Public companies.

A memorandum of incorporation or articles of association must be submitted to the Companies and Intellectual Property Commission or CIPC, in order to register a company.

These documents describe the rights and responsibilities of partners, directors and/or shareholders as well as meeting procedures etc.

In the case of a company, it is important, although not mandatory, to have a shareholders agreement which clearly sets out the rights and responsibilities of a company’s shareholders, and in the case of a partnership, a partnership agreement, as this will prevent corporate abuse and fraud.

It is best to consult a law firm when registering a business and to have the aforementioned documents drafted by a legal professional.

Call Du Pre Le Roux Attorneys today if you are considering registering a new business.

Is a Will valid if the person who made it, has not signed same?

According to the Wills Act, the requirements for a valid Will are:

1. The testator/testatrix must be older than 16 and have the necessary mental capacity;
2. The will must be reduced to writing;
3. Every single page must be signed;
4. It must be witnessed by 2 persons older than 14 years;
5. The Testator/Testatrix and the witnesses must all be present when the will is signed.

If these requirements are not met, the Will may be invalid.

The aforementioned Act does however make provision that an executor, beneficiary and/or heir may approach the High Court for condonation and it must be proven that the deceased had intended that the unsigned Will be his final Will and testament.

The disadvantage herewith is that this condonation application will delay the finalisation of the estate and is costly.

Contact Du Pre Le Roux Attorneys today to draft your Will and to comply with all the legal requirements.

POWER OF ATTORNEY EXPLAINED

There are always 2 persons involved in a Power of Attorney, namely the agent and the principal.

The agent is given legal permission by the principal to make decisions and to take action on the principal’s behalf.

The agent may then, for example, buy or sell property and/or enter into contracts on behalf of the principal.

There are 2 types of Powers of Attorneys. A general power of attorney that gives the agent the authorization to do certain acts as set out in the Power of Attorney and normally only terminates when the principal passes away, becomes insolvent or becomes mentally incapacitated at which point a curator ad litem must be appointed by a court. A special power of attorney grants the agent the authority to perform a specified action on behalf of the principal and once this action has been performed, the special Power of Attorney expires.

So, what are the legal requirements for a Power of Attorney?

1. It must be in writing;
2. Both parties must be clearly identified;
3. The scope of the powers granted must be specified;
4. The Power of Attorney is signed by 2 witnesses;
5. If the Power of Attorney is not signed in the RSA, it must be signed before a Notary Public and authenticated to be used in the country.

It must also be mentioned that where an agent must transact in respect of immovable property, the Power of Attorney must be registered in the Deeds Office.

A principal may cancel the Power of Attorney anytime.

Call Du Pre Le Roux Attorneys today to draft all your legal documents.

MAY YOU INSTALL A GENERATOR IN A SECTIONAL TITLE UNIT?

Once you become an owner of a sectional title unit, you immediately become a member of that scheme’s body corporate.

In a sectional title scheme there are rules that protect owners, tenants and even visitors, for example residents may not store flammables on the premises that may negatively affect the body corporate’s insurance.

The governing legislation, The Sectional Titles Schemes Management Act, also stipulates that residents schemes may not annoy one another.

As a generator is flammable and noisy, the installation of same in a sectional title unit must be carefully considered. The body corporate should also consider whether to allow each owner to install their own generator or whether one generator can be installed for all the units in the scheme.

If the trustees allow every owner to have their own generator, the following must be taken into account:

1. What type of generator will be approved?
2. Where will the generator be located?
3. Who will pay for the maintenance of the generator?
4. Must each individual pay the costs out of their own pocket?

If the trustees decide on one generator for all units, the body corporate will be responsible for the costs of the installation and maintenance of the generator.

In conclusion, you must obtain the necessary permission to install a generator in a sectional title scheme.

Call Du Pre Le Roux Attorneys today to have all your legal questions answered.

MAY A DIRECTOR BE REMOVED WITHOUT GIVING HIM/HER PROPER REASON?

According to Section 71 of the Companies Act (“the Act”), a director may be removed by resolution passed by the person/s whom may vote when electing the specific director.

As per Section 71(2) of the Act, the director must be given notice of the shareholder’s meeting and of resolution to be adopted and they must have an reasonable chance to present their case before a vote is casted in respect of the resolution.

In the matter of Milller v Natmed Defence (Pty) Ltd, Miller argued that his removal was invalid as it did not comply with Section 71(2) of the Act due because he was not allowed to present his case as he wasn’t given reasons for the proposed removal as director.

The court distinguished between:

1. Section 71(2) of the Act which deals with the removal of a director by shareholders; and
2. Section 71(3) of the Act which deals with the removal of a director by the board of directors.

and came to the conclusion that only Section 71(3) provides for reasons to be given in advance. Section 71(2) does not have such a requirement.

Thus, the court found that shareholders can remove directors without providing reasons for their decision.

Call Du Pre Le Roux Attorneys today for the answers to all your company’s legal questions.

ARE YOU BUYING A PROPERTY FROM A DECEASED ESTATE? HERE IS WHAT YOU NEED TO KNOW

In a deceased estate, the Master appoints an executor to act on behalf of the deceased and in the best interest of the deceased’s heirs.

If an immovable property is sold out of a deceased estate, the executor signs the purchase agreement. He/she can only do so if he/she has been appointed by the Master and once a letter of executorship is obtained. If there is no letter of executorship at the time the purchase agreement was signed, it will be invalid in law.

If the property is co-owned, the co-owner must sign the purchase agreement with the executor.

It must be noted that the Master of the High Court must consent to the sale of the immovable property in terms of Section 42(2) of the Administration of Estates Act.

The Master consents by endorsing the power of attorney with a stamp approving the sale of the property, which endorsement is lodged with all other transfer documents at the office of the Registrar of Deeds.

All these requirements often lead to delays in the transfer of immovable property bought out of a deceased estate. The heirs as well as the purchaser must be kept updated at all times.

Call Du Pre Le Roux Attorneys now to have all your queries answered in regard to the purchasing of immovable property.

WHAT IS THE RESPONSIBILITY OF THE EMLOYER WHEN AN EMPLOYEE GETS HARRASSED IN THE WORKPLACE?

This question was recently answered in the High Court case of Phil-Ann Erasmus vs Dr Beyers Naude Local Municipality & Xola Vincent Jack.

In this matter the the Plaintiff who was employed at the municipality was sexually assaulted by her supervisor. As a result, it was unbearable for her to continue working there and she had no alternative but to resign. This amounts to a constructive dismissal and the remedy is to refer a dispute to the CCMA in terms of the Labour Relations Act.

However, the Plaintiff instituted a delictual claim based on common law. She claimed over 4 million rand for medical expenses and loss of income (past and future) as well as general damages. This claim also included an amount for harassment.

The court found that the employer was indeed liable, along with the supervisor, jointly and severally, the one paying the other to be absolved, to pay the proved damages to the Plaintiff as a result of the harassment, which damages amounted to 4 million rand.

The court took the following conduct of the employer into account:

1. The supervisor was not suspended;
2. He was only told not to have any contact with the Plaintiff;
3. The employer did not prioritize disciplinary action against the supervisor;

and the court came to the conclusion that the employer had a duty in law to provide protection to the Plaintiff, but failed to do so.

Call Du Pre Le Roux Attorneys today to answer all your Labour Law questions.

May a parent claim maintenance from the other parent for and on behalf of an adult dependent child upon their divorce?

This is the question that arose in the recent Supreme Court of Appeal matter Z v Z (556/2021)[2022] ZASCA 113 (21 July 2022)

In this matter the mother claimed maintenance from the father in respect of 2 dependent major children. She relied on Section 6 of the Divorce Act 70 of 1970. This section deals with the “safeguarding of interests of dependent and minor children.” Sections 1(a) and (3) are relevant:

“(1) A decree of divorce shall not be granted until the court-
(a) is satisfied that the provisions made or contemplated with regard to the welfare of any minor or dependent child of the marriage are satisfactory or are the best that can be effected in the circumstances…”
“(3) A court granting a decree of divorce may, in regard to the maintenance of a dependent child of the marriage or the custody or guardianship of, or access to, a minor child of the marriage, make any order which it may deem fit, and may in particular, if in its opinion it would be in the interests of such minor child to do so, grant to either parent the sole guardianship (which shall include the power to consent to the marriage of the child) or the sole custody of the minor, and the court may order that, on the predecease of the parent to whom the sole guardianship of the minor is granted, a person other than the surviving parent shall be the guardian of the minor, either jointly with or to the exclusion of the surviving parent.”

There are conflicting high court decisions on whether a parent has the necessary legal standing to claim maintenance from the other parent on behalf of adult dependent children in divorce matters.

The father in this matter raised a special plea that the mother has no locus standi to claim maintenance on behalf of their major children and he argued that the children had to institute maintenance proceedings in their own names. The father’s special plea succeeded in the court a quo. The mother then appealed this ruling.

The appeal court interpreted Section 6 of the Divorce Act as aforementioned and concluded that Sections 6(1)(a) and 6(3) do not differentiate between a minor child and an adult dependent child of the marriage in regard to the payment of maintenance. Section 6(3), also in regard to the maintenance of a major dependent child, stipulates that the court may make any order which it deems fit. The appeal court therefore came to the conclusion that Section 6(1)(a) and 6(3) do allow a parent to claim maintenance on behalf of adult dependent children upon divorce because the purpose of these sections are to safeguard the welfare of both adult dependent and minor children of the marriage.

The appeal court upheld the appeal with costs and the father’s special plea was dismissed.

Call Du Pre Le Roux Attorneys today to answer all your divorce and maintenance questions.

May an employer dismiss an employee for sending a WhatsApp message?

Communication these days, even between an employer and an employee, take place more and more on the WhasApp forum, which raises the question if an employee may be dismissed for sending a WhatsApp message to his employer?

The Labour Relations Act is clear, the dismissal of an employee must be fair and just and accordingly if an employer dismisses an employee for sending a WhatsApp message, the employer must ensure that it has complied with the requirements of the Labour Relations Act.

In the case of Masondo vs AG Electrical (Pty) Ltd [2002] 4 BALR 400 (CCMA), an employee was fired for sending a threatening WhatsApp message to his employer and a bargaining council official. In the message he threatened to murder them because they cut his working hours during the lockdown period.

The employer saw the WhatsApp message as a threat to cause bodily harm by physical violence. The employee however argued that he was trying to assist his co-workers who were faced with shortened working hours. The employee, however, did not dispute the employer’s version and did not apologize or show remorse for the message. The CCMA came to the conclusion that the WhatsApp message broke the employee-employer relationship down and found that the employee’s dismissal to be procedurally and substantively fair.

The conclusion is that a WhatsApp message may lead to a dismissal. However, as always, the facts of each case must be taken into account.

Call Du Pre Le Roux Attorneys today to have all your labour law questions answered.

DIVORCE: TAKING OWNERSHIP OF IMMOVABLE PROPERTY

A question which arises after a divorce is when does an ex-spouse become the owner of a half share in an immovable property awarded to him/ her in terms of a divorce order. Will it be immediately upon the granting of the order or does the ex-spouse only receive a right to legally transfer the half share as a result of the mentioned order?

This question was answered by the Supreme Court of Appeal in the matter of Fischer v Ubomi: Ushishi Trading CC & others 2019 (2) SA 117 (SCA)

In this case it was confirmed that, ownership of an immovable property does not immediately pass to the ex-spouse in terms of a divorce order. For ownership to pass, the Title Deed MUST be endorsed by the Registrar of Deeds. If this is not done, a creditor may obtain an order declaring the previous owner’s half share executable which can ultimately lead to a sale in ex*****on. The only way to defend such an application will be to prove that the right to full individual ownership preceded such a creditor’s claim.

Call Du Pre Le Roux Attorneys today for any divorce or property related enquiries.

MAY A BODY CORPORATE ACCEPT PAYMENT OF LESS THAN THE FULL ARREARS LEVIES OWED?

As a result of the Covid pandemic owners in Sectional Title Schemes have fallen behind with payment of their monthly levies.

In such a situation may a body corporate agree to payment of a reduced levy or write off arrear levies?

The Pietermaritzburg High Court has recently ruled that the trustees of a body corporate do not have the authority to reduce levies and may not make agree to payment of less than what is owed. The body corporate is obliged to enforce full payment of levies by each owner. The reason for this is that should a body corporate agree to payment of less than what is owed, this will be to the detriment of the common burden shared by all owners to pay levies based on the participation quota.

Thus, a body corporate may not, allow any of the owners to pay a lesser amount on their levies than what is owed.

COURT RULING OF 11 MAY 2022 HAS IMMENSE IMPLICATIONS FOR DIVORCE IN SOUTH AFRICA

In South Africa there are 3 marital regimens:

1. In community of property – The parties share equally in the division of the joint estate should they divorce;
2. Out of community of property with application of the accrual system. The party with the smaller growth in their estate as at
date of divorce may claim 50% of the difference in the growth of the estate from date of marriage to date of divorce of the
other party; and
3. Out of community of property without application of the accrual system – the parties keep their estates separated and one does not have a claim against the estate of the other.

Section 7(3) of the Divorce Act 70 of 1979 currently provides as follows :

“A court granting a decree of divorce in respect of a marriage out of community of property,
a) entered into before the commencement of the Matrimonial Propert Act, 1984, in terms of an antenuptial contract by which community of property, community of profit and loss and accrual sharing in any form are excluded;
may, subject to the provisions of subsections (4), (5) and (6), on application by one of the parties to that marriage, in the absence of any agreement between them regarding the division of their assets, order that such assets, or such part of the assets, of the other party as the court may deem just be transferred to the first-mentioned party.”

This is known as a redistribution order and the court takes the following factors into account when making such an order:

a) the party who wants to enforce same must prove that he/she
contributed to the growth of the estate during the marriage by rendering services or saving expenses or in any other manner;
b) a donation made by one party to the other;
c) any other relevant factor

The purpose of this section is to correct the imbalance of marriage out of community of property where one party contributed to the increase of the other party’s estate during the marriage.

The Pretoria High Court found on 11 May 2022 that the limit of section 7(3)(a) of the Divorce Act 70 of 1979 to marriages out of community of property entered into before 1 November 1984 is inconsistent with the Constitution.

The result thereof is that anyone married out of community of property without the accrual system may approach the court for an order to redistribute assets, no matter when the parties were married.

The Constitutional Court will now consider the matter in order to determine whether the order of 11 May 2022 should be confirmed and that the Divorce Act be amended accordingly.

RECOVERING OUTSTANDNG DEBTS: COSTS THAT CREDITOR MAY CHARGE A DEBTOR

Not paying bills will lead to legal action being taken and the debt will attract interest, costs and legal fees.

What costs are allowed when the creditor decides to go the legal route?

Firstly, if money is owed in terms of a credit agreement, the National Credit Act (“NCA”) makes provision for the creditor to charge interest, collection costs and further charges over and above the capital amount of the debt

The NCA lays down certain conditions under which a creditor may incur collection costs so that these costs are reasonable in the circumstances. More specifically, the NCA stipulates that interest and costs may not exceed the capital of the debt. For example, if R5,000.00 is owed, the total costs charged cannot exceed R5,000.00.

In a recent case, the Supreme Court of Appeal (“SCA”) confirmed that there is a difference between collection costs provided for in the NCA and legal fees. The legal fees incurred by a creditor to enforce payment under a credit agreement do not form part of collection costs described in the NCA. Furthermore, the SCA also confirmed that the restriction on collection costs does not apply post-judgment. In other words, a debtor is liable for the capital of the debt, collection costs (limited by the NCA) and further legal costs when the creditor instructs an attorney to recover the debt by obtaining judgment against the defaulting debtor.

There is no maximum tariff an attorney may charge for the collection process. However, any party may require that an attorney’s fees be taxed by a Taxing Master.

If you cannot meet your obligations and want to make arrangements with your creditors, or if you as creditor are struggling to collect a debt from a defaulting party, contact Du Pre Le Roux Attorneys today to assist.

EMPLOYER’S REMEDIES WHEN AN EMPLOYEE DOESN’T PERFORM WHILE WORKING FROM HOME

Although an employee is working from home, they still have an obligation to fulfill their duties.

What remedies are available to an employer when there are concerns that an employee is not working the hours as specified in the said employee’s contract when the employee is working from home as a result of the Covid-19 pandemic?

If an employer equips an employee to be able to work from home and the employee fails to do so or delivers sub-standard work, the employer may proceed with disciplinary action against such employee.

An employment relationship is based on trust and it is reasonable for an employer to expect an employee to work the required hours and to produce work at the standard required in the employment contract. An employee must be loyal and perform the work in the best way possible.

When an employer takes disciplinary action against an employee due to the employee not complying with his duty of good faith to the employer, the employer must do so for a good reason and must always follow a fair procedure. The employer must also make sure that the reason for the employee’s failure to comply is not as a result of operational issues because the employee is working remotely.

The facts of each case must be taken into account together with the steps taken by the employer to determine whether disciplinary action is justified.

Contact Du Pre Le Roux Attorneys today to assist in any labour dispute.

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