GROUNDBREAKING RULING ON MUSLIM MARRIAGES

On 31 August 2018 a full bench of the Western Cape High Court ordered that the State is obliged to implement legislation to recognise Muslim marriages and the consequences thereof within 24 months.

Prior to the judgement, a draft bill to legally recognise Muslim marriages was introduced for public comment, but according to the Minister of Justice the bill was widely opposed as being inconsistent with Sharia law and “unIslamic”.

The Women’s Legal Centre Trust, which said it was aimed at providing Muslim women and their children with legal protection upon divorce, approached the court for an order against the President of South Africa and others to provide legislation to govern Muslim marriages and, in particular, to provide legal protection to the women and their children in relation to divorce and inheritance.

The court declared that the president of the country and other respondents had failed in their constitutional obligation and that the state is obliged to respect, protect and promote the rights to dignity, equality, religion, the best interests of the child and access to courts by enacting legislation to recognise Sharia law marriages. The state was given 24 months to rectify this failure, failing which all marriages validly concluded under Sharia law would be dissolved according to the Divorce Act.

For more information, contact Goldberg & de Villiers Inc on 041 501 9800

 

DO YOU NEED A WILL?

         “A man who dies without a will has lawyers for his heirs” (Anon)

It’s natural not to want to make plans for our own mortality, but we owe it to ourselves and our loved ones to do exactly that, and to do it without delay. Why?

  1. Sooner or later we all die. No one knows exactly when.
  2. If you don’t make a will you forfeit your right (and duty) to ensure that your loved ones are properly catered for after your death.
  3. A professionally-drawn will also greatly reduce the risk of your grieving family having to deal with uncertainty as to your wishes, bitter infighting and expensive litigation.

What happens if you don’t leave a valid will?

If you leave no valid will when you die, our “law of intestacy” applies, with the following consequences –

  • Your assets are distributed according to law, not according to your wishes. That could leave your family very vulnerable – see below.
  • Your deceased estate is administered by an executor in whose appointment you have had no say. Not ideal – rather protect your loved ones by choosing in your will an executor you can trust to act with integrity and speed.
  • Equally, you have no say in who is to be appointed guardian of your minor children, nor trustee of a trust to protect their inheritances (particularly important if you are the last-surviving parent).
  • Your childrens’ inheritances will sit in the statutory Guardians Fund until they turn 18 – very much last prize considering past allegations of fraud, corruption and chaotic administration in the Fund.

Who gets what without a will?

Note: The persistent myth that the state will grab all your worldly wealth if you die intestate isn’t true except where you leave absolutely no blood relations behind. If you’re in that unlikely situation you may want to skip down now to the “A final thought – leave the world a better place” section below.

Where you are survived by at least one relative, your net assets (everything you own, less your debts and the costs of winding up your estate) are divided up between your heirs in an order of preference (a) dictated by law and (b) dependent on how you are related to your heirs.

Firstly, if your spouse and/or your descendants (children, grandchildren etc) survive you, they inherit everything according to set rules (see the “Beware: You could leave your spouse struggling to survive” section below for more).

Things get more complicated if you leave behind neither spouse nor descendants. Your parents, brothers/sisters and other relations all potentially have a look-in. If you’re interested in the details, the DOJ (Department of Justice and Constitutional Development) provides a full breakdown (with some useful practical examples) here.

The article also covers specifics applying to polygamous marriages, marriages in community of property, adopted and illegitimate children – but as always there is no substitute for proper legal advice on your specific situation.

Beware: You could leave your spouse struggling to survive

If you find it difficult to stop procrastinating on making a will, here’s a thought that may help.

Without a will, if your spouse survives you together with children (or other descendants), he or she will, regardless of age or circumstances, inherit only the greater of R250,000 or a “child’s share”. In a nutshell, your spouse will have to split your estate with your descendants and you could be sentencing him or her to a life of financial hardship, all for want of a simple will.

Similarly you may want to make special provision for any of your descendants who are particularly vulnerable – perhaps unable to fend for themselves through illness or handicap.

It boils down to this – make your will now so that it is you who decides who gets what in your particular family circumstances.

A final thought – leave the world a better place

A will isn’t just an essential step in securing your family’s future; it also gives you the freedom to support your favourite good cause with a bequest. Many of our most worthy charities rely heavily on bequests, and you really will be leaving the world a better place for your generosity.

As a bonus, with charitable bequests the Taxman comes to the party, and your heirs could benefit from substantial estate duty and capital gains tax breaks.

It’s easy – choose your charity, decide on the type and amount of legacy you want to leave, and have your lawyer include it in your will.

Credit: LawDotNews

For more information and professional legal advice, contact Goldberg & de Villiers Inc on 041 501 9800.

MAY AN EMPLOYER DEDUCT MONIES FROM ITS EMPLOYEES FOR NEGLIGENCE?

In terms of Section 34 of the Basic Conditions of Employment Act (BCEA), an employee may make a deduction should such deduction need to be made to reimburse an employee for loss or damages.

For such a deduction to be made, the following criteria are to be met:

  1. The loss or damage should have occurred in the course of employment and was due to the fault of the employee;
  1. The employer followed fair procedure and gave the employee a reasonable opportunity to show why the deductions should not be made;
  1. The total amount of the “debt” is not to exceed the actual amount of the loss or damage; and
  1. The total deductions from the employee’s remuneration in terms of the above may not exceed one quarter of the employee’s remuneration in money.

It is very important when a chairperson is considering charges of negligence that he/she applies his/her mind in relation to the reimbursement by the employee of the loss suffered.

Tracey Mouton, Director and head of the Employment and Labour Law Department at Goldberg & de Villiers Inc will expertly assist you in handling such an enquiry to ensure that your Company is appropriately safeguarded. Contact Tracey on  traceym@goldlaw.co.za or Tel: 041 501 9818.

www.goldbergdevilliers.co.za

 

 

 

FATHER HELD TO R1M WHATSAPP PROMISE

In today’s fast paced environment we are constantly being warned to be careful of what we post or place on social media platforms. These warnings are not to be taken lightly as per the experience of a Limpopo father who was recently ordered by a court to keep to his promise made on WhatsApp.

The father in question, who received a Lotto payout of R20 million, promised each of his children R1 million via a WhatsApp message. Whilst it is not certain if all of his children took him up on the promise, the father’s former partner and mother of a teenage daughter insisted that the father pay out the daughter her share.

The father refused and the matter was taken to court where the Limpopo High Court held that a promise is a promise, even if made via WhatsApp message. The father was therefore ordered to pay up.

Let this court judgement be a harsh reminder to only post that which you are comfortable being bound to. Social media often creates the impression of freedom of speech without accountability, but this is clearly not the case and caution must be exercised whenever making use of such platforms.

For professional legal guidance, contact Goldberg & de Villiers Inc. on 041 – 501 9800.

[Article by Sandy Scholtz]

DEBT RELIEF FOR MANY PROPOSED BY DRAFT BILL

Parliament’s Trade and Industry Committee plans to formally adopt the draft National Credit Amendment Bill on 16 August 2018, despite strong opposition by the banking industry.

The controversial Bill allows for the cancellation of debt in certain circumstances and has been under review over the past 3 years. The Committee has earlier this month thrown out a clause in the draft Bill which would empower the Minister of Trade and Industry to hold extensive powers to prescribe debt intervention measures in exceptional circumstances. This clause was removed by agreement by all political parties after senior counsel’s opinion that such enfettered powers would be unconstitutional.

The proposed debt relief, which could result in the write-off of between R13.2bn and R20bn, would benefit consumers:

  • earning a gross monthly income of less than R7 500;
  • having unsecured debt of no more than R50 000; and
  • deemed by the National Credit Regulator to be “over-indebted”.

Whilst the initial lifespan of the Bill is set to be 48 months, the Committee has agreed that the Minister is to submit a report on the Bill’s effect to Parliament within 36 months of implementation in order to decide on the extension of the Bill’s lifespan.

For more information, contact Sandy Scholtz at Goldberg & de Villiers Inc on 041 5019800.

 

 

SUING YOUR SECURITY COMPANY: THE CASE OF A BURGLED BUTCHERY

“Somewhat ironically, given the fact that the phrase “not a sausage” is originally derived from the Cockney rhyming slang “sausages and mash” meaning “cash”, they got away with not a sausage from the butchery but a great deal of cash” (extract from judgment below

When you employ a security company to provide alarm monitoring and “armed response” services, you are paying them to protect you from criminals. What are your rights if they don’t do their job properly?

A recent High Court case illustrates.

The alarm, the safecrackers and the “all in order” report 

  • Burglars broke into a butchery one evening through the roof, triggering an alarm. They cut open two safes with angle grinders and escaped into the night with a large amount of cash.
  • The security company contracted to provide “monitoring, reaction, reporting and maintenance security services” to the butchery had received the alarm signal and identified the zone as being in the roof/ceiling.
  • The vehicle response officer despatched to the scene reported, after “a hurried inspection of 2 ½ minutes”, that “as far as he can see” all was in order, and that he had left a slip in the door of the premises advising of the incident and of the fact that all was in order.
  • The problem it seems was that the roof break-in wasn’t visible from the street and the security company was unable to contact the first key holder (the butchery manager, whose cell phone battery was dead), to arrange access to the premises. The company made no attempt to contact the second key holder (the business owner) because, it said, he had in the past rudely instructed them not to contact him except in an emergency. The owner denied having given such an instruction and the Court accepted his evidence to this effect.
  • The (no doubt delighted) safecrackers were in the end result left undisturbed to get on with their angle grinding, and the butchery sued the security company for damages.

The exemption clauses

The Court found the security company to have been negligent in its breach of contract, and then considered its attempt to avoid liability by relying on not one but two exemption clauses –

  1. The first disclaimed liability unless the client could prove “negligence … or disregard of duties”,
  2. In contradiction to that, the second clause was a blanket indemnity absolving the security company “from any liability whatsoever for any loss howsoever occasioned”.

The contract being thus ambiguous, the Court gave effect to the first clause and, negligence having been proven, ordered the security company to pay the butchery owner whatever damages he can prove.

The lesson for security companies

Aside from the poor publicity that any service failure like this will expose you to, the legal ramifications could be huge.

  1. So firstly, have your lawyer check your client contract and in particular ensure that you have one clear, enforceable exemption clause. Note that disclaimers, particularly those “very general in [their] application”, may be tricky to enforce when constitutional considerations, considerations of “public policy” and “good faith”, or the Consumer Protection Act (CPA) apply. The CPA requires contracts to contain “fair, just and reasonable terms and conditions”, plus exemptions/disclaimers of any sort must be clearly drawn to the attention of clients in plain language.
  2. Secondly, if your contract obliges you to do anything specific – like contact a second key holder when you can’t raise the first – do so. Make sure any contrary instructions are recorded and provable (you may even need to amend the contract itself – ask your lawyer for specific advice).
  3. Thirdly, make sure that your response to alarm activations cannot be considered negligent – the Court in this case was clearly unimpressed with the reaction officer’s “hurried inspection” and there was much debate during the trial as to whether he should have made more effort to check the premises from an adjacent alleyway.

The lesson for clients

Although as we pointed out above you may sometimes have room to challenge exemption clauses, don’t count on having an easy time of it. Our law recognises the general right of suppliers to protect themselves “against liability insofar as it is legally permissible”.

Having said which, if you are the unfortunate victim of a crime and your security company has let you down, take legal advice immediately – you may just have a claim!

Credit: LawDotNews

For more information, make an appointment with the professional legal team at Goldberg & de Villiers Inc on 041 5019800.

YOUR BODY CORPORATE AND ARREAR LEVIES: TO SEQUESTRATE OR NOT TO SEQUESTRATE?

          “…aye, there’s the rub” (Shakespeare)

Levies are the lifeblood of a sectional title scheme, and the Body Corporate has a duty to recover arrears from defaulting owners. It has the power, in addition to following standard debt collection procedures and perhaps approaching the Community Schemes Ombud for assistance, to apply for the sequestration of the owner’s estate. Indeed just the threat of a sequestration application is sometimes enough to frighten a recalcitrant debtor into paying up.

But, as Shakespeare might have put it, there’s an alarming “rub” here that body corporate trustees ignore at their peril. It arises from ‘the danger of contribution’ in insolvent estates. In a nutshell, where the ‘costs of sequestration’ exceed the funds in the estate available to pay them, proved creditors may well have to contribute towards those costs in addition to losing their claims. Talk about adding insult to injury!

A R46k shortfall – must the body corporate contribute?

  • A body corporate successfully applied for the sequestration of the personal estate of a defaulting section owner.
  • The property was bonded to two banks who duly proved their claims against the insolvent estate. Wisely, no other creditors proved claims and the trustee of the insolvent estate drew an account providing for the two banks alone to pay pro-rata contributions to cover the R46,663-16 shortfall in the costs of sequestration.
  • The banks objected to the account on the basis that the body corporate should also contribute as ‘petitioning creditor’, although it hadn’t formally proved a claim. The Master of the High Court ruled that the body corporate was protected from contributing as its claim related to arrear levies (and the costs of recovering the arrears) – claims which didn’t need to be formally proved and would by law be paid out of the proceeds of the property anyway.
  • The banks asked the High Court to set aside the Master’s ruling, and the Court duly held that as “petitioning creditor” the body corporate must indeed contribute to the shortfall pro-rata with the bondholders.

The bottom line – trustees of bodies corporate should, before applying for a defaulting owner’s sequestration, make certain that there is no danger of contribution.

Credit: LawDotNews

For more information, contact the professional legal team at Goldberg & de Villiers Inc on 041 501 9800.

DO YOU READ ONLINE TERMS AND CONDITIONS? YOU SHOULD AND HERE’S WHY

      “The Internet is a Real Place with Real Consequences” (Rebecca MacKinnon, Internet policy expert)

We live in an age of online commerce. We buy and sell pretty much anything you can think of on the Internet, whilst contracting online for everything from an Uber ride to a plumber’s call out has become second nature.

So we should all know just how important it is to take note of those annoying little tick boxes saying things like “I agree to the terms and conditions available here” (with of course a hyperlink under the “here” leading you to a list of terms and conditions as long as your arm).

An interesting case recently before the High Court illustrates.

“I’ve won R5m” thought the online gambler

A regular visitor to a bookmaker’s online sports betting website was overjoyed when, after placing over 530 bets over an 8 month period, and for a stake of only R100, he successfully picked the winners in 8 different horse races.

His betting slip showed a “total possible payment” of R4,841,728 and that, thought the gambler, was exactly what he’d won (actually it would have been over R5m before tax).

Imagine his disappointment and distress when the bookmaker paid him only R1m, referring him to its online standard terms and conditions. Clause 9, pointed out the bookmaker, was headed “Maximum Payout” and imposed on every customer a daily winnings limit of R1m.

Unwilling to go down without a fight, the punter sued the bookmaker for the full amount. He hadn’t, he said, read the Ts and Cs (he is no doubt in very good company in that, which is indeed the point of this article) and anyway they were, he argued, overridden by the express reference on his betting slip to the full amount.

Let the signer beware

Unfortunately for him his luck had well and truly run out. The Court dismissed his claim with costs, holding that the “total possible payout” figure quoted on the betting slip could not entitle him to a payout in conflict with the daily limit.

Central to the Court’s decision was its finding that the gambler, when he opened his account on the site, must have ticked a box agreeing to the bookmaker’s standard terms and conditions. “When signing the document by placing an electronic tick in the box”, held the Court, “the applicant placed himself in the same position as a person who had physically signed the document. He is bound by the maxim caveat subscriptor [‘let the signer beware’], whether or not he actually took the trouble to read the terms”.

There’s a strong warning there to all of us – when the chips are down (so to speak) ticking those “I agree to the terms and conditions” boxes online binds you to them. You can’t try to evade them later on by saying “I didn’t actually read and understand them before agreeing – no one ever does”.  You’re probably thinking “life’s too short to read all that gumpf”. But then pick your times to be cavalier about it, and when there’s a lot at stake rather take the time to read and understand what you’re agreeing to.  Get legal advice in any doubt.

But wait, there’s more (a caution for online product and service providers)

This is an area of law still being explored by our courts, and particularly in these days of strong consumer protections, online service and product providers should note that the bookmaker’s case was bolstered by additional facts, two of them in particular –

  1. The punter had been exposed to specific warnings about the limits imposed on winnings both before every bet (i.e. more than 530 times) and thereafter on every betting slip,
  2. He always had easy access to the full Ts and Cs via a clickable icon.

Hence the Court’s conclusion that the bookmaker “takes all reasonable steps to ensure that the client assents to the terms and conditions before the account is opened and both prior and subsequent to the placing of any bet the punter is told about the limits on winnings.”

Perhaps the bookmaker would have won his case anyway on nothing more than the tick box and the “signer beware” principle, but on a better-safe-than-sorry basis online providers should perhaps follow the bookmaker’s lead on that one and not rely entirely on a one-off tick in a tick box.

Credit: LawDotNews

For more information, contact the legal team at Goldberg & de Villiers Inc on 041 501 9800.

 

DISCRIMINATORY FACEBOOK SLUR PROVES COSTLY

 

The old saying “put your money where your mouth is” has been harshly felt by a woman who recently posted offensive and discriminatory comments on Facebook.

 

Stephanie Odendaal of KwaZulu-Natal was taken to the equality court by the South African Human Rights Commission for comments posted on her Facebook account which were based on race and aimed at “persons involved and/or engaging in mixed race relationships in general”.

Following a settlement reached between the parties and accepted by the equality court, Odendaal acknowledged that her comments constituted unfair discrimination that amounted to violation of human dignity. Odendaal was ordered to make an unconditional apology, to complete 100 hours of community service and to make a damages payment of R7000 which is to be donated to two non-profit organisations in KZN.

This case serves as a reminder that comments made on social networking sites could have harsh and costly consequences.

Contact Goldberg & de Villiers Inc. for professional legal services on 041 501 9800.

Bridging Finance in Building Contract – Cancellation of Main Agreement Not a Bar to Third Party’s Claim for Breach of Contract

The following case highlights how important quality legal advice is and why you should be fully aware of the legal ramifications of the agreements you sign.

In a matter which came before the Supreme Court of Appeal (SCA)  the court had to decide whether a third party who provides bridging finance to the contractor in terms of a building contract is entitled to rely on the non-payment of certain payment certificates, as a basis for its claim for damages;  and if so, whether it was open to the Respondent Municipality as a matter of law to dispute its liability for payment of those payment certificates on the basis that they were not validly issued. The trial court (below the SCA) answered the first question posed in the negative and the second question accordingly fell away.

The facts of the case were as follows: a company by the name of Yethu was awarded a tender by the Oudtshoorn Municipality (the Municipality). Yethu applied to the Appellant (“Nurcha”), for bridging finance to enable it to complete the project. Nurcha and Yethu subsequently concluded such an agreement. Yethu advised the Municipality of the finance agreement with Nurcha and that it had ceded to all payments to Nurcha. Yethu further advised the Municipality that it should pay all moneys owing in respect of the project into a nominated bank account (the project account).  The project account was the only account into which the Municipality was to pay moneys due to Yethu and this instruction could only be varied with Nurcha’s written consent. The Municipality accepted the instruction and thereby concluded an agreement with Nurcha upon the agreed terms.

Yethu failed to complete the project and the Municipality cancelled the contract with Yethu. Yethu was then placed under final liquidation. Nurcha claimed damages from the MUNICIPALITY on the basis of BREACH OF CONTRACT.

The SCA Held on appeal that the approach of the court below failed to take proper account of the true nature of Nurcha’s cause of action. Its cause of action was not that of a contractor claiming payment for work done under a building contract. Instead, its cause of action was founded on the undertaking of the Municipality to pay all moneys due and payable by it to Yethu, as and when they fell due, into the project account. Therefore Nurcha’s claim was not based on any payment certificate as such but was made in terms of the Municipality’s undertaking to make all payments due and payable in terms of the building contract to Nurcha and not to anyone else. The cancellation of the building contract could not legally impact upon the nature and extent of the obligation of the Municipality vis-a-vis Nurcha.

The Court held that Nurcha was entitled to rely on the Municipality’s breach of the agreement as a basis for its claim for damages against the Municipality. The first question of law therefore ought to have been answered in the affirmative. The appeal was therefore upheld with costs.

Nurcha’s legal counsel must be praised for understanding the underlying agreements and framing their client’s claim in such a manner so as to ensure that their client was successful in its recovery.

For quality legal assistance contact Kugen Pillay of Goldberg & de Villiers Inc on 041 501 9800.