When it comes to cancelling a lease early, both landlords and tenants must be aware of their responsibilities. It’s important to note that the Consumer Protection Act (CPA) has been put in place to protect consumers and it has changed the way that South Africans do business. The CPA also protects tenants in cases where they want to cancel a lease early.

According to the CPA, if a tenant provides the landlord with 20 business days’ notice, the tenant has every right to cancel the lease early. However, this does not mean that a tenant can just pack his/her bags and leave the property without facing some sort of penalty or financial repercussion. These penalties and financial repercussions can include a fair cancellation fee, cost of advertising as the landlord would have to advertise to find a new tenant to take the place of the old tenant, and any other costs deemed reasonable in the case that a landlord cannot secure a tenant in such a short time period.

It’s important to note, although a landlord can expect the abovementioned payments, a landlord cannot, under any circumstances, withhold a tenant’s deposit or expect the tenant to pay rent for the remainder of the lease. A landlord can also not charge a ridiculous and unreasonable cancellation fee. Additionally, a landlord may not withhold the deposit instead of charging a cancellation fee. Landlords tend to think that they can withhold deposits for almost any reason, and this is most certainly not the case.

Unfortunately, there are landlords who ignore the CPA and insist that the tenant pay rent until the lease comes to an end when a tenant cancels the lease early. So, is there anything a tenant can do if the abovementioned is the case? Yes. A tenant can approach the National Consumer Tribunal for assistance or contact the Rental Housing Tribunal.

Tenants need to ensure that they read the lease agreement very carefully before signing and to also make note of any provisions made in the lease agreement concerning the early cancellation of the lease as per the CPA. It is expected of landlords to be up to date and aware of the provisions laid out for early cancellation of the lease, but some are not, and this can cause immense problems for tenants. If your prospective landlord refuses to recognise the fact that you may cancel your lease early, consider renting another property. Also, consider renting a different property if the landlord insists on harsh repercussions in the case of early cancellation of the lease.

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)

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The Children’s Act, 38 of 2005 (hereinafter referred to as the Children’s Act) governs the laws relating to the care, contact and the protection of children. The guiding principle, in all matters, is the best interest of the child.

Section 27 of the Children’s Act states:

Assignment of guardianship and care: –

(1)(a) A parent who is the sole guardian of a child may appoint a fit and proper person as guardian of the child in the event of the death of the parent.

(b) A parent who has the sole care of a child may appoint a fit and proper person to be vested with care of the child in the event of the death of

the parent.

(2) An appointment in terms of subsection (1) must be contained in a will made by the parent.

(3) A person appointed in terms of subsection (1) acquires guardianship or care, as the case may be, in respect of a child-

1. after the death of the parent; and
2. upon the person’s express or implied acceptance of the appointment.

(4) If two or more persons are appointed as guardians or to be vested with the care of the child, any one or more or all of them may accept the

appointment except if the appointment provides otherwise.

The final decision (approval) concerning the appointment of a caregiver or guardian for a minor rests with the High Court of South Africa, as this Court is the upper guardian of all minor children, and it, therefore, cannot give an order contrary to the best interest of the minor. You, as the natural guardian, can make provisions in your will by appointing a fit and proper person that you wish to have as caregiver or guardian of your minor children at your death.

The child’s views must also be considered in any decision regarding the appointment of a caregiver or guardian in a will. The Act states that every child of an age, maturity and stage of development able to participate in any matter concerning him/her has the right to do so in an appropriate way. There is no set age at which children can make their own decisions, but the older and more mature they are, the more their wishes will be considered.

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)

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If a couple has gotten divorced and they have a child, then it’s the responsibility of both parents to support the child. The duty to pay maintenance cannot be avoided, regardless of either parents’ situation. If one parent refuses to pay maintenance, then the other parent can go to a court and make a claim. Being a single parent doesn’t mean being the only one to contribute to maintenance.

What should I do about it?

To deal with a spouse who refuses to pay maintenance you would first need to inform the maintenance officer. The maintenance officer can apply to the court for:

1. A warrant of execution;
2. An attachment order against the defaulter’s salary;
3. An order to attach any debts; and
4. A criminal prosecution.

Does the non-paying parent have a defence?

The only defence that a parent could have for not paying maintenance is having a lack of income. However, if the parent is unwilling to work, such as laziness, then this will not count as a defence. Failure to pay maintenance is taken very serious, guilty parents won’t get much sympathy from the court or others. If the parent is capable of working, then they will be expected to pay maintenance.

But I can’t find my ex-spouse?

Non-paying parents may think that they’re being clever by changing their address and not notifying the court. This is considered a criminal offence, and will result in punishment. Fortunately, it’s not the responsibility of the single parent to find anyone. A maintenance investigator will track down and find a non-paying parent.

How to claim maintenance

If you want someone to pay maintenance or believe that they are not paying the proper amount, then you can follow these steps at your local magistrate’s court. Remember to go the court in the district where you live.

1. Go to the court and complete the form “Application for a maintenance order (J101)”.
2. Also submit proof of your monthly income and expenses.
3. A date will be set on which you and the respondent (the person whom you wish to pay maintenance) must go to the court.
4. A maintenance officer and an investigator will investigate your claim and look into your circumstances.
5. The court will serve a summons on the respondent.
6. The respondent then has to either agree to pay the maintenance, or challenge the matter in court.

If found liable to pay maintenance

If the court finds someone liable for paying maintenance, it will make an order for the amount of maintenance to be paid. The court will also determine when and how the payments must be made. There are several ways the payments could be made. The court can order that the maintenance be paid at the local magistrate’s office or that the amount to be paid into the bank account chosen by the person claiming. The payments could also just be made directing to them. According to the new Maintenance Act (1998), an employer can deduct payments from an employee’s salary, if they’re liable for paying maintenance.

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)

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Joint owners own undivided shares in the property which they own jointly. Consequently, the joint owners cannot divide the joint property while the joint ownership remains in existence, and a joint owner also cannot alienate the property or a part thereof without the consent of the other joint owner. The rights in respect of the joint property need to be exercised jointly by the owners thereof.

Ways in which joint ownership can arise:

Joint ownership can come into existence by way of an inheritance in which an indivisible property is left to more than one person in indivisible shares; by way of a marriage in community of property, by the mixture of movable property in such a way that it forms a new movable item or by way of an agreement in terms of which the parties agree to jointly buy a property and that both will have equal indivisible shares in the property.

Division of joint property:

Any joint owner can claim the division of the joint property according to that joint owner’s share in the property.[1] It is a requirement for the division of the joint property that the parties need to try to divide the property among themselves first, before approaching the Court for an action to divide the property, which action is called the actio communi dividendo[2].

The underlying principle of the actio communi dividendo is that no co-owner is normally obliged to remain such against his will. If there is a refusal on the part of one of the co-owners to divide, then the other co-owner can go to Court and ask the Court to order the other to partition. The Court has a wide discretion in making a division of the joint property, which is similar to the discretion which a court has in respect of the mode of distribution of partnership assets among partners.

The Court may award the joint property to one of the owners provided that he/she compensate the other co-owner, or cause the joint property to be put up to auction and the proceeds divided among the co-owners.[3]  Where there is no agreement between the parties as to how the joint assets are to be divided a liquidator is ordinarily appointed, and he can then sell the assets and divide the proceeds, if it is not possible to divide the assets between the parties.[4] If the immediate division of the joint property will be detrimental to the parties, the Court can order in certain cases that the division or the sale of the property be postponed for a period.[5]

It is beneficial that there exist means to divide assets which are jointly owned by parties, who no longer wish to be co-owners, but who cannot reach an agreement on the division of the assets. Without such an action, people might be stuck with a property which they derive no benefit from because it is in the possession of the other co-owner, who refuse to sell the property.

• [1] Inleiding tot die sakereg, Van Niekerk & Pienaar, Juta, p 53 – 61.
• [2] Robson v Theron 1978 (1) SA 841 (A).
• [3] 1978 (1) SA 841 (A).
• [4] 1978 (1) SA 841 (A).
• [5] Van Niekerk & Pienaar, p 61 – 62.

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)

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As stressful and time-consuming as moving might be, it can also be exciting as you are moving on to better and greater things. However, as a tenant, there are certain things that you need to keep in mind before you move into your new dream home:

Lease agreement:

You’ve thought about moving for some time, and finally decided it’s time to move out of your current home. But first, make sure to review your lease agreement and familiarise yourself with all the terms and conditions therein. For example, it’s very important to know how long your required notice period is. Once you have familiarised yourself with all the terms and conditions, you will have a much better understanding of what is expected of you before you move out.

Letting your landlord know:

Most lease agreements stipulate that a tenant must give at least one month’s written notice before moving out. So, make sure to prepare your notice and communicate this to your landlord within the appropriate timeframe. In your notice, you can stipulate what date you will be moving out, what you might need in order to restore the property to its original state and you can request your deposit. However, if you plan on cancelling your lease early, make sure to request and receive permission from your landlord prior to moving out. If you don’t do this, legal action can be taken against you.

Inspect the property and fix any damages caused by you:

Depending on your lease agreement, you could be the one responsible for returning the property to its original state before you move out. That is why it is so important to be familiar with the terms and conditions found in your lease agreement. You need to inspect the property and look for any damages that could have been caused by you or damages that occurred while you were occupying the property. Make sure to take care of these damages, otherwise, your landlord could keep your deposit or only pay back a portion of it in order to pay for repairs.

Sort out all accounts linked to your property:

Before moving into your new home, make sure that all accounts linked to your previous home have been cancelled or moved and that you do not owe anything. These accounts include electricity, water, Wi-Fi, TV subscriptions etc. Also, ensure that all your service providers are aware of the move and provide them with your new address.

As a tenant, your home was never really yours, however, it remains your responsibility to ensure that the property is restored to its original state. Think to yourself, “Would I be happy if I received the property in this state?” It is recommended not to overlook these steps, as it will help to make the whole moving process run a lot smoother and you will get your deposit back quicker. It’s a win-win situation for both the tenant and the landlord.

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)

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However, the role of an estate executor and who can be appointed as one has been largely misunderstood.

What does the executor do?

“Executor” is the legal term for referring to the person, or people, nominated in your will to carry out the directives you set out in your will.

1. This means that it is the executor’s responsibility to disburse your property to the mentioned beneficiaries in your will, but also obtain information on potential heirs, collecting and arranging payments, and approving or disapproving creditors’ claims.
2. It is the executor’s duty to calculate and pay the estate tax, and to ensure that the correct documentation is filed with the relevant authorities.
3. The executor is the individual that represents your estate.

Who can be appointed as the executor?

It has become normal to appoint a friend, family member or beneficiary to act as the executor, as they most likely have intimate knowledge of your estate and your affairs, but also, they will not rack up the fees that a legal body might accrue.

However, there is a misconception that you can avoid the fees by appointing a family member as the estate executor, but this could also mean that you are deferring the cost to the nominated family member.

1. Family members appointed as executors on larger estates immediately find themselves out of their depth, and not only end up hiring a professional executor, but may also pay more for these services than necessary.
2. A simple way to address this is by appointing a “professional” executor during your lifetime. This allows you to negotiate the executor fees.

If you appoint a family member, make sure that they understand that they will have to appoint a professional agent, and that they should negotiate the fee and be very cautious of agreeing to a fee arrangement in terms of which the professional agent charges their professional fee, instead of the legislated scale.

References:

• https://www.legalwise.co.za/help-yourself/legal-articles/duties-executor
• http://www.fin24.com/Money/Wills-and-trusts/Role-of-executor-of-deceased-estate-20150513

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)

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There are only two grounds for divorce, namely the irretrievable breakdown of the marriage; or mental illness or continued unconsciousness of one of the spouses.

Examples of the irretrievable breakdown of a marriage as a ground for divorce include:

1. the spouses not living together for a continuous period of one year;
2. abuse towards the spouse or the children;
3. adultery;
4. habitual criminality;
5. drunkenness or drug addiction; or
6. loss of love and affection between the spouses.

The court’s discretion to grant a divorce order

The court still has discretion not to grant a divorce order, and may postpone the proceedings or dismiss the claim if it appears to the court that there is a reasonable possibility that the parties may reconcile through counselling. If reconciliation is unsuccessful after a few months, the parties may proceed with the same summons. The summons will usually contain the averment that further counselling and/or treatment will not lead to any reconciliation. A court must, therefore, be satisfied that the marriage is really broken down and that there is no possibility of the continuation of a normal marriage.

What if the couple reconciles?

Where the parties reconcile and live together again after the summons was issued and served, it does not necessarily end the divorce proceedings. If, however, the reconciliation is unsuccessful after a few months, the parties may proceed with the same summons. It is extremely important to make sure that the summons is withdrawn formally if you do decide to reconcile. Withdrawal of the summons is formally affected when the plaintiff serves a document referred to as a notice of withdrawal of the summons on the defendant or his/her attorney. If this is not done, a divorce order may be obtained by default without the defendant being aware of it. If a divorce is obtained in this manner, the aggrieved party may approach the court to set aside the order.

Conclusion

Since the present law on divorce is no longer based on the principle of fault, defences like insanity or the plaintiff’s own adultery are no longer valid defences. Therefore, if a divorce is instituted on account of an irretrievable breakdown, there is in fact no defence to prevent the divorce from proceeding. But if the court finds that there is a reasonable possibility of reconciliation, it may postpone the proceedings in order that the parties attempt reconciliation; this, however, is not a defence, but merely amounts to a postponement.

References:

• Justive.gov.za
• Legalwise.co.za

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)

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During 2018, the African National Congress (ANC) announced its intention to drastically speed up the land reform process in South Africa when President Cyril Ramaphosa announced that he would be proposing changes to section 25 of the Constitution of the Republic of South Africa (“the Constitution”) to allow for the expropriation of land without compensation.

In essence, expropriation of land occurs when the state takes land away from its owner for public use. Where land is expropriated without compensation, the landowner is not compensated for the value of the property lost. Currently, our Constitution only allows for expropriation with compensation.

The proposed changes to the Constitution elicited much debate, as there is a rigorous process to be followed to amend a right such as section 25, which forms part of the Bill of Rights. In terms of section 74(2) of the Constitution, the Bill of Rights may only be amended by the passing of a Bill which must be approved by the supporting vote of at least two thirds of the National Assembly, as well as the supporting vote of at least six of the nine provinces of the National Council of Provinces. Once voted on, the Bill must be drafted and published in the Government Gazette allowing the public 30 days to comment thereon. Only once this 30-day period has passed may the Bill be introduced to Parliament.

Importantly, amendments to a right in the Bill of Rights may only be made where they are in line with section 1 of the Constitution and do not stray from matters directly connected to the amendment. Section 1 states that the Republic of South Africa is founded on the value of supremacy of the Constitution and the rule of law. If the rights contained in the Constitution, as the supreme law of the land, were subject to constant change, its overall credibility and reliability would be in danger. The credibility and supremacy of the Constitution are pivotal, especially in light of apartheid which was enabled by the manipulation and strategic interpretation of laws.

Following the above-prescribed procedures, the ANC introduced the Land Expropriation Bill (“the Bill”) to Parliament in February 2018.

In terms of clause 7(1), an expropriating authority must serve a notice of intention to expropriate on the owner of the land and any other person who may hold a right in the property. Clause 7(2) specifies what is to be included in such notice.

There is a misconception that the Bill allows for the expropriation of land without compensation immediately and without recourse to the owner of the land or any person who has rights therein. This is incorrect. The Bill requires the landowner and the expropriating authority to negotiate and reach an agreement as to the amount of compensation payable to the landowner. Only once such an agreement of compensation payable cannot be reached, and 40 days have passed, may the expropriating authority decide whether or not to proceed with the expropriation.

Clause 12 states that the amount of compensation to be paid to a landowner must be just and equitable and reflect an equitable balance between the public interest and the interests of the landowner. Notably, clause 12(3) of the Bill states that it may be just and equitable for nil compensation to be paid to the landowner where land is expropriated in the public interest.

In sum, the Bill entitles an expropriating authority to expropriate land against a payment of compensation determined in terms of clause 12 of the Bill. This means that the compensation awarded must be just and equitable, which, where it is in the public interest, may be nil.

Reference List:

• The Constitution of the Republic of South Africa, 1996.
• Draft Expropriation Bill, 2019.
• https://irr.org.za/reports/submissions-on-proposed-legislation/synopsis-of-submission-on-2019-expropriation-bill-19-02-19.pdf
• https://businesstech.co.za/news/government/284510/section-25-amendment-south-africas-historical-moment-in-the-land-debate/
• https://www.biznews.com/thought-leaders/2018/08/08/changing-sa-constitution-pierre-de-vos

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)

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Normal procedure in an opposed divorce:

Divorce proceedings can lead to a long, drawn-out and very expensive procedure if the parties are not able to reach a settlement before going to trial. Once the plaintiff issues a summons for divorce and the summons has been served on the defendant, the defendant has ten days to defend the matter, and a further twenty days to answer to the allegations contained in the particulars of the claim. Because divorce proceedings can take years to finalise, especially in the High Court, there is also the possibility of an interim maintenance application in both the Regional and High Court, which leads to further delays.

Once both parties have discovered what documentation they wish to use at trial, a pre-trial conference needs to be conducted in order for the court to determine whether the matter is trial ready. If the matter is declared trial ready, a trial date will be allocated, and the parties can be up to three years down the line from the date of issuing the summons.

Settlement before the summons has been issued:

The abovementioned procedure can be avoided to a large extent, if the parties who decide to get divorced, agree to do so on an amicable basis from the start, and are able to reach a settlement before instituting legal proceedings. The settlement agreement in divorce proceedings is referred to as a “consent paper”.

Especially in divorces with regards to marriages in community of property, or marriages out of community of property where the parties do not have substantial assets to divide, it is a viable option to conclude a settlement as soon as possible, as the division of the assets should be fairly simple.

Consent paper:

The parties need to address all the patrimonial consequences of the divorce in the consent paper. An agreement needs to be reached on the division of movable and immovable assets, and the possible realisation of certain assets in order to make the division of the assets easier. Furthermore, if there are minor children involved in the divorce, a settlement needs to be reached as to which parent the minor children will reside with, and the visiting rights of the other parent. The maintenance of the minor children will also need to be addressed, and the possible rehabilitative/lifelong maintenance of a maintenance dependent spouse.

Procedure of a settled divorce:

If the parties reach a settlement by means of a consent paper before a summons is issued, the consent paper will be attached to the particulars of the claim of the summons. The summons will still need to be issued and served by the sheriff on the defendant. Once the summons has been served, and the ten days to defend the matter has passed (which will happen in a case which was settled before the issuing of the summons), the plaintiff in the matter can request a date from the registrar of the court on the unopposed roll. Once a date is received, the matter still needs to be set down in accordance with the rules of court, and the defendant needs to be notified of the date. However, on the court date itself, only the plaintiff and his/her legal representative need to be in court. The terms of the consent paper will then form part of the divorce order.

Benefits of an early settlement:

The benefits of reaching an early settlement in a divorce are that the parties will not have to spend large sums on legal costs, which would be the case if a divorce is opposed and goes to trial. It will also ensure the swift conclusion of the matter, which can be concluded in a few months. Children benefit from a swift settlement of a divorce, as they do not have to live through a drawn-out legal battle, in which they usually become bargaining tools. Thus, an early settlement is an outcome which should be endeavoured for, as it is in the best interests of all parties involved.

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)

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Nature of joint ownership:

Joint owners own undivided shares in the property which they own jointly. Consequently, the joint owners cannot divide the joint property while the joint ownership remains in existence, and a joint owner also cannot alienate the property or a part thereof without the consent of the other joint owner. The rights in respect of the joint property need to be exercised jointly by the owners thereof.

Ways in which joint ownership can arise:

Joint ownership can come into existence by way of an inheritance in which an indivisible property is left to more than one person in indivisible shares; by way of a marriage in community of property, by the mixture of movable property in such a way that it forms a new movable item or by way of an agreement in terms of which the parties agree to jointly buy a property and that both will have equal indivisible shares in the property.

Division of joint property:

Any joint owner can claim the division of the joint property according to that joint owner’s share in the property.[1] It is a requirement for the division of the joint property that the parties need to try to divide the property among themselves first, before approaching the Court for an action to divide the property, which action is called the actio communi dividendo[2].

The underlying principle of the actio communi dividendo is that no co-owner is normally obliged to remain such against his will. If there is a refusal on the part of one of the co-owners to divide, then the other co-owner can go to Court and ask the Court to order the other to partition. The Court has a wide discretion in making a division of the joint property, which is similar to the discretion which a court has in respect of the mode of distribution of partnership assets among partners.

The Court may award the joint property to one of the owners provided that he/she compensates the other co-owner, or causes the joint property to be put on auction and the proceeds are divided between the co-owners.[3] Where there is no agreement between the parties as to how the joint assets are to be divided, a liquidator is ordinarily appointed who can then sell the assets and divide the proceeds if it is not possible to divide the assets between the parties.[4] If the immediate division of the joint property will be detrimental to the parties, the Court can order in certain cases that the division or the sale of the property be postponed for a period.[5]

It is beneficial that there exists a means to divide assets which are jointly owned by parties and who no longer wish to be co-owners, but who cannot reach an agreement on the division of the assets. Without such an action, people might be stuck with a property which they derive no benefit from because it is in the possession of the other co-owner, who refuse to sell the property.

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)

• [1] Inleiding tot die sakereg, Van Niekerk & Pienaar, Juta, p 53 – 61.
• [2] Robson v Theron 1978 (1) SA 841 (A).
• [3] 1978 (1) SA 841 (A).
• [4] 1978 (1) SA 841 (A).
• [5] Van Niekerk & Pienaar, p 61 – 62.

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