There are three types of matrimonial property regimes in South Africa. The three are marriage in community of property, marriage out of community of property with the inclusion of the accrual system and marriage out of community of property with the exclusion of the accrual system. When parties decide on either of the two latter, they must enter into a contractual agreement with one another before a notary public. It is important to understand what they all entail before one gets married.

Marriage in community of property is the so-called “default” regime, because all marriages are deemed to be in community of property if an Antenuptial Contract is not concluded before the marriage. This is also the most popular regime because it is the easiest one to conclude. When two parties get married in community of property, their estates will be joined together. Every asset and liability each party had before getting married and acquires during the marriage will become one estate and on dissolution of the marriage, the estate will be divided equally between the parties.

This system is based on the theory that each spouse, whether employed or at home running the household, contributes equally to the marriage and on dissolution of the marriage is entitled to share equally in the joint estate. It is important to note that when one enters this type of matrimonial regime, in some instances consent will be needed from the other party. One of the biggest disadvantages of this system is that if one party incurs debt, the debt will form part of the joint estate.

When one enters into a marriage out of community of property with the accrual system, it means that the parties entered into a contractual agreement with one another, which is known as an Antenuptial Contract. This contract must be entered into before a notary public and has to be registered at the Deeds Office. In this regime, the two estates of the spouses before the marriage remain separate. No consent will be needed from the other spouse in order to handle his/her own affairs. The accrual system will be applicable at the dissolution of the marriage or upon death, whichever may occur first.

What happens with the accrual is that whatever the parties acquired during the existence of the marriage, will be compared and the half of the difference in accrual will be owed by the estate which shows a larger accrual. On dissolution of a marriage out of community of property with the accrual system, inheritances and donations received by a spouse from a third party will not be included in the accrual.

In a marriage out of community of property without the accrual system, each party’s estate will remain separate. This system enables parties to control their own estate and affairs independently and on the dissolution of marriage, the parties will retain their own assets and liabilities. It is important to note that even if parties are married out of community of property excluding the accrual system, both parties will have to contribute to the household as a married couple – it is one of the duties that arises from marriage.

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 you need to use official South African documents in another country, it is necessary that they are legalised for use abroad. This can be for any number of reasons, such as legalising university degrees for a job in another country.

What is legalisation?

Legalising documents means that official (public) documents executed within South Africa for use outside the country are affixed, sealed and signed either with an Apostille Certificate (where countries are party to The Hague Convention) or with a Certificate of Authentication (where countries are not party to The Hague Convention).

Legalisation basically means the process followed by which the signature and seal on an official (public) document is verified.

The process involved in signing/executing documents:

If a country is part of The Hague Convention, the following process applies:

1. The documents are signed and/or executed in the presence of a Notary Public. The Notary Public will attach the Certificate of Authentication to the documents which must bear his signature, stamp and seal.
2. The documents are then forwarded by the Notary Public to the High Court in the area in which the Notary Public practices. The Court will then attach an Apostille Certificate authenticating the Notary Public’s signature.

There are certain documents that the High Court will not Apostille/Authenticate and must be sent to the Department of International Relations and Co-operation (DIRCO), which is based in Pretoria. For example:

1. All Home Affairs documents; and
2. Police Clearance Certificates.

If a country is not part of The Hague Convention, the following process applies:

1. The documents are signed and/or executed in the presence of a Notary Public. The Notary Public will attach the Certificate of Authentication to the documents which must bear his signature, stamp and seal.
2. The documents are then forwarded by the Notary Public to The High Court in the area in which the Notary Public practices. The Court will then attach an Apostille Certificate authenticating the Notary Public’s signature.
3. Documents are then submitted to the Legalisation Section at DIRCO to be legalised.
4. Once legalised by DIRCO the documents are then forwarded to the Embassy/Consulate of the country in which they are intended to be used for further authentication.

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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Liquor manufacturers and suppliers require a liquor license, as regulated by the National Liquor Authority. If your liquor registration has been cancelled you cannot continue to trade. Trading without a license is an offence punishable by law.

What is the National Liquor Authority?

The National Liquor Authority is a regulatory body within the Department of Trade and Industry (the DTI) responsible for administering The National Liquor Act 2003 (Act No.59 of 2003).

What documents are required with my application?

• A business zoning certificate for industrial purposes or a consent letter from the relevant municipality.
• A comprehensive written representation in support of the application.
• Any determination, consent approval or authority required by the Act.
• Valid proof that the prescribed application fee has been deposited into the bank account of the Department of Trade and Industry.
• A valid certified copy of ID of the applicant or a passport and trading business permit if the applicant is a foreigner.
• A South African Police Services (SAPS) clearance certificate not older than three 3 months from the date of issue.
• If the applicant is a juristic person, valid copies of registration issued by the Companies and Intellectual Property Commission (CIPC) or any other relevant registration authority indicating the financial interest of all members, shareholders, partners or beneficiaries as the case may be;
• A valid tax clearance certificate if the applicant is a juristic person issued by the South African Revenue Services (SARS) within twelve months from the date of application.
• Verification certificate issued in terms of the Broad Based Black Economic Empowerment Act (B-BBEE).

A liquor licence is an extremely important document to possess for those who are planning on trading in, or manufacturing liquor. It is an official document issued to a premise on which liquor is to be sold or manufactured. It can be a time consuming and painstaking process for an individual to obtain a valid liquor licence on their own. There are many complicated legal requirements and steps to follow before a liquor licence can be granted. It is also critical to obtain the correct classification of liquor licence for the premises and/or occasion or event.

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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Speaking to colleagues, horror stories are plentiful. Stories of civil court files gone missing for months, sheriffs without vehicles, backlogs in courts regarding motions, default judgments and maintenance claims, sheriffs’ offices taking up to six months to serve documents, chaos in filing of documents at the Masters’ Offices, delays in transfers at the Deeds Offices, backlogs in courts, backlogs at the Masters’ Offices and other Registrars, loss of dockets or other important evidence, absence of knowledge and lack of work ethic.

Serious concerns regarding new legislation pertaining to the courts and the legal profession have some of us running for the hills, this time to Australia. It is a bleak picture indeed, because for some, the wheels are falling off and the end is nigh.

Why, then, did I recently encourage an exceptionally bright young man to study law and not engineering? This is because this country and its people need exceptionally bright people to become attorneys, advocates, state prosecutors, magistrates and judges. The law has such an influence on all aspects of our lives that we cannot afford to have a legal profession without the necessary knowledge and abilities to protect us all.

If it were not for exceptionally bright people in the legal profession, we would not have had the ability to register our child in the school we deem appropriate, free from the bounds of so-called “feeding areas”. We would not be able to return that set of encyclopaedias purchased from the salesmen who came knocking on the door, would have to pay extraordinary interest on our credit agreements and have no guarantee of safety of ownership of our property.

Bright, able minds in the legal profession are of utmost importance to us all. And yes, transformation regarding race and gender is crucial, necessary, and should be embraced and encouraged. Unfortunately, the low entry-level requirements of the LLB degree has resulted in a large number of students with very few, if any, exceptionally talented candidates. The latter prefer better paid, less regulated occupations. All the more reason why the brightest and most talented should study law. By abandoning the profession and thus the legal system we, as the people of South Africa, will be much worse off. The truth is that the legal profession actually makes a difference in your life, each and every day.

Life in an attorney’s office is not as portrayed in an American television series. It is not Suits or Boston Legal (although some of us wish!). We do not work in designer clothes and not all assistants and secretaries are beautiful, blonde, hourglass-figured and sharp-witted. Our offices are not all glass-walled designer areas with quirky memorabilia, couches and clean desks. We have files – hundreds of them. And that is why you in all probability only consult with your attorney in the boardroom or consultation room, as their office space is cluttered with towers of files!

The work requires long, lonely hours of drafting, reading, thinking, considering, re-considering, and arguing with oneself. You need to work exceptionally hard on each matter to achieve the best outcome for the situation for each of your clients. Not all clients have unlimited resources and thus you have to work within the constraints of their financial ability. Attorneys mostly do not charge fees for all of the effort and time spent.

The one thing that each branch of the legal profession has in common, is that at the end of each day, regardless of when the day ends, you can close your door knowing that you have actually made a difference in somebody’s life, whether it be settling a divorce or finalising an amalgamation agreement, collecting the outstanding levies for painting of a sectional title scheme building, having your client’s debt review successfully granted, or the successful opening of a township plan.

Another satisfaction is knowing that you will never know EVERYTHING – the law is too extensive, too complicated and develops too rapidly to keep up with the intricacies of it all. There will thus always be something new to read, learn or to consider. You will always be able to consider new approaches to old problems and may even argue the same point in law from different perspectives.

If you are willing and able to work hard, learn, and grow in the legal profession you will be able to look back one day on your career with delight and satisfaction because no two days were ever the same. No court appearance, litigation, transfer or contract is ever the same; and while you were busy you actually had fun – enjoyed the good argument, the adrenalin rush to get the urgent application served, the ticking clock on the service of the plea, answering affidavit, reply or summary judgment application.

That is why you should encourage your talented and bright child to study law. He or she might just make the difference you may need one day.

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 a young attorney I am often confronted with the question whether there is a body that governs the legal profession or whether we, as the peacemakers of a nation, have carte blanche to act as we wish, not abiding to any rules or regulations. Are we free to do as we please?  Strangely enough I do not feel offended by questions of this nature, and to be blatantly honest, I can comprehend why such a question may be asked. I once read a quote by Mario Puzo that is self-explanatory: “A lawyer with his briefcase can steal more than a hundred men with guns.” 

In South Africa there are four statutory law societies in place:  The Cape Law Society, The Law Society of the Northern Provinces, The KwaZulu-Natal Law Society and The Free State Law Society. Every attorney in our country is a member of the law society in which he / she is practising law.  Each of these law societies had their own separate sets of rules which applied to their members.  This worked all good and well until in more recent times law firms started to branch out to different parts of the country.

National law firms normally have offices and branches in various provinces and different sets of rules would apply to each different branch of the same firm – this created chaos and led to some untenable situations.

Little did we know back in 2009, when discussions on the nationalising of rules for attorneys initially kicked-off, that all South African lawyers will be painted with the same brush seven years later!

The unification of the four sets of rules was a long and complex process. During 2014 attorneys had to approve the new standardised rules at annual general meetings of the provincial law societies, where after the Judges President and Chief Justice had to give the proverbial thumbs up. These discussions and negotiations lasted nearly a decade and after the long wait, the National Rules for the Attorneys’ Profession finally came into operation on 1 March 2016.

The Rules consist of eight parts and 55 rules in total. Some of these rules include inter alia rules regarding the general practice of attorneys, accounting rules for law firms, rules on the conduct of attorneys and the process of disciplinary proceedings against attorneys whose conduct is unprofessional and dishonourable.

So, the simple answer to the popular question I am often asked is, yes we do! As with many other professions legal practitioners are also bound to their own set of rules.

Law is an imperfect profession in which success can rarely be achieved without some sacrifice of principle. Thus all practicing lawyers — and most others in the profession — will necessarily be imperfect, especially in the eyes of young idealists. There is no perfect justice, just as there is no absolute in ethics. But there is perfect injustice, and we know it when we see it. ALAN DERSHOWITZ, Letters to a Young Lawyer

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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