Matrimonial property regimes

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My partner and I are getting married soon and have heard about the different matrimonial property regimes one can enter but I am not sure what the difference is and what each one entails.

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)

Private use of groundwater resources in the Cape Town Metropole: How is it regulated?

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This article will provide a brief overview of how the abstraction and usage of groundwater resources are regulated, with specific reference to the Cape Town Metropole which has made headlines over the past few years for being one of the first big metropoles in the world to almost run out of this valuable resource.

The usage of groundwater in the Western Cape is regulated by three important pieces of legislation, namely the National Water Act (1998), the Water By-law (2010) and the Water Amendment By-law (2018). It is from the outset important to note that all groundwater in South Africa has been a national resource since 1998 as per the preamble of the National Water Act and no private person may thus use and abuse water which they abstract on their private property as they wish.

Installation of mechanisms to abstract groundwater:

Groundwater is most commonly abstracted by way of a borehole, well-point, or well. This article will only refer to boreholes as the relevant legislation defines a borehole as a “hole sunk into the earth for the purpose of locating, abstracting or using subterranean water, and includes a spring, well and well-point”. This definition is thus broad enough to include almost any method of abstracting groundwater.

The City of Cape Town requires a property owner who plans to sink or dig a borehole to notify the director in writing at least 14 days before such action of his or her intention to do so. The “director” is defined in the City’s by-law as the employee of the City who is responsible for water and sanitation. This notice must also inform the director of the exact location where one intends to sink or dig the borehole, as well as the purpose for which the groundwater will be used for.

It is furthermore important to take note of section 57 of the Water By-law which requires the owner of a premises on which a borehole is located to ensure that:
(a) the borehole is adequately safeguarded from creating a health nuisance;
(b) the borehole is not filled in a way or with material that may cause an adjacent well, borehole or underground source of water to become polluted or contaminated; and
(c) no interconnection is made between a water installation supplied from the main and any other source of water supply, meaning that your groundwater system may not in any way be connected to the municipal water supply system.

Section 61 of the Water By-law is also important to take note of as it states that the owner of a premises on which non-potable water, which includes groundwater, is used must ensure that “every terminal water fitting and every appliance which supplies or uses the water is clearly marked with a weatherproof notice indicating that such water is unsuitable for domestic purposes”. This notice must be in three official languages and must be clearly visible.

Usage of the groundwater:

It is important to note that groundwater may not be used for domestic purposes. Water is deemed to be used for domestic purposes when it is used for drinking, ablution and culinary purposes, excluding water used for toilets and urinals. You may thus use your borehole water for any non-domestic purpose, subject to certain restrictions. One such restriction relates to the watering of your garden. The Water Amendment By-law of the City of Cape Town states that no garden may be watered between the hours of 09h00 and 18h00, and watering within the permitted hours may not exceed one hour in duration.

Complying with the above-mentioned regulations is important for two main reasons. Groundwater is a limited resource which must be used sparingly. Scientists have warned that lower rainfall figures will become the norm due to factors such as global warming. Furthermore, the preamble of the National Water Act emphasises the fact that water must be used in a sustainable manner and that it must be used to the benefit of all people. Another very important consideration is that non-compliance with any of the above regulations is an offence and a person who is convicted of such an offence shall be liable to pay a fine or to serve a term of imprisonment of up to five years, or both.

Readers who are not resident in the Cape Town Metropole are strongly encouraged to check if their local municipalities have their own by-laws regulating the use and abstraction of underground water as non-compliance therewith may carry similar penalties.

Reference List:

  • National Water Act 36 of 1998
  • City of Cape Town Water By-law (2010)
  • City of Cape Town Water Amendment By-law (2018)
  • http://www.capetown.gov.za/Family%20and%20home/Residential-utility-services/Residential-water-and-sanitation-services/Residential-water-restrictions-explained

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)

Drones: How is it regulated?

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Drones, also sometimes referred to as Remotely Piloted Aircraft Systems, are becoming increasingly popular amongst the civilian population. This is due to the fact that it is becoming widely available and increasingly affordable. Drone manufacturers are catering for all different types of consumers and different budgets, with some drone models retailing at less than a R1 000.00. This is good news for drone enthusiasts or those just looking for a fun past time activity. However, this increased popularity and accessibility means that more and more people own drones which result in increased drone activity in our airspace – which could cause chaos.

Disruptions at big international airports such as Heathrow and Gatwick have illustrated the chaos which can be caused by drones when operated illegally and irresponsibly. Numerous flights were suspended between 19 and 21 December 2018 at Gatwick Airport, Britain’s second-biggest hub, after drones were spotted in the vicinity of the airport in order to ensure the safety of the aircraft and passengers. This led to the disruption of thousands of travellers during the festive period.

One must distinguish between the operation of drones for commercial purposes vis-a-vis recreational purposes. The regulation of commercial drone operations (i.e., whenever a drone is used for commercial gain) does not fall within the scope of this article. However, readers are warned that one must have a Remote Pilot Licence when operating a drone for commercial purposes, and such a drone must be registered.

The remainder of this article will discuss how the use of drones for recreational purposes are regulated in South Africa. The South African Civil Aviation Authority (“SACAA”) has issued regulations which must be complied with when operating a drone for recreational purposes. You are not, according to these regulations, allowed to fly your drone in a manner which will in any way endanger the safety of another aircraft or person. This means that you are not allowed to:

  1. Fly your drone within 50 metres of a person or group of people. The regulations list sports fields, social events and schools as examples of places where you will be in contravention of this regulation should you fly there.
  2. Fly your drone within 50 metres of any property, unless you have obtained the consent of the property owner.

SACAA’s regulations further regulate the usage of drones for recreational purposes by imposing the following restrictions:

  1. You are not allowed to fly near any manned aircraft.
  2. You are not allowed to fly within a 10 km radius of any aerodrome (i.e. any airport, helipad, or airfield).
  3. Drones for recreational usage may not weigh more than 7 kg.
  4. You are not allowed to operate your drone within any restricted, controlled or prohibited airspace.
  5. Operating a drone more than 150 ft from the ground is prohibited.

SACAA’s regulations furthermore require drone operators to always maintain a visual line of sight with their drones when flying. This means that you must always be able to see your drone. Drone enthusiasts must only operate their drones in daylight and in clear weather conditions and should always inspect their drone before a flight.

It is of utmost importance to comply with the above regulations in order to ensure that you do not incur liability for any damages caused to people or their property. Readers are encouraged to do the necessary research in order to ensure that there are no regulations or by-laws which apply to their specific geographical area, since some local authorities may have specific restrictions in place.

Reference List:

  • http://www.caa.co.za/Pages/RPAS/Remotely%20Piloted%20Aircraft%20Systems.aspx
  • http://www.nameandshame.co.za/Articles/Drones-what-the-law-says

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)

Why is my property transfer taking so long?

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After signing a deed of sale, the purchasers often want to move into the property as soon as possible.  When they are informed of the process involved prior to the property being transferred this may damper their excitement. There may also be delays in the transaction. In order to avoid unnecessary frustration, it is vital that parties to the transaction understand the processes involved and that delays are sometimes inevitable.

The deed of sale will normally be the starting point in a transaction for a conveyancer who has been instructed to attend to the transfer. This conveyancer is also known as the transferring attorney and is normally the main link between the other attorneys involved the transfer transaction.

Postponements, delays and interruptions

  1. A major role of the conveyancer is informing any mortgagees, for example banks, about the transfer so that any notice periods for the cancellation of bonds can start running. The notice period is usually up to 90 days. The transfer may be delayed as a result of this notice period.
  1. Obtaining the various certificates, receipts and consents applicable to the transaction in question also takes time. Examples of these is the rate clearance certificate, transfer duty receipt, homeowners’ association’s consent to the transfer, levy clearance certificate, electrical compliance certificate and plumbing certificate. The time it takes to obtain these certificates will differ from case to case. After an inspection by a plumber or electrician, for example, it may be found that certain work needs to be carried out before the certificates will be issued.
  1. Once all the documents are lodged at the Deeds Office by the conveyancer, an internal process is followed, which has different time frames in the various Deeds Offices. This time frame can also vary in a particular Deeds Office. It is best to enquire from your conveyancer what the Deeds Office time frame is at any given stage.

There are many ways in which the transfer process could be delayed, these are just some of the examples. If you feel that the process is taking too long, then you should contact your conveyancer.

Reference:

  • Aktebesorging, UNISA 2004, Department Private Law, Ramwell, Brink & West

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)

Is Uber legal?

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Following the death of one of Uber’s employees due to clashes between Uber drivers and taxi drivers, the Department of Labour has clarified its position in terms of labour legislation.

Recently, the Department of Labour acknowledged and applauded the ruling by the Commission for Conciliation, Mediation and Arbitration (CCMA) that Uber drivers are the employees of the company. This decision was in line with the Labour Relations (Act 66 of 1995) as amended. “With regard to the Uber drivers, like any employees, there are no exceptions. They are fully protected by the South African Labour Laws including the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA)”, Commissioner Vuyo Mafata said.

Under the Labour Relations Act, any person who falls in that category is an employee and therefore fully covered in terms of labour legislation.

What happens if an Uber driver is injured?

The COID Act compensates employees who are injured or die during the cause of duty. Therefore, it means the beneficiaries of the Uber driver who died after he was allegedly attacked in Pretoria last month qualify for compensation according to the Act. However, the Fund will have to be provided with all the required documents in order to process the claim.

What about the employer, Uber?

For Uber drivers, all of this is good news. Employees will not be penalised or forfeit their benefits because of unregistered employers, instead the employers will be fined. Furthermore, employers must register their companies with the Compensation Fund so that employees are covered under the COID Act.

Reference:

  • “Department of Labour’s position in terms of Uber drivers and CCMA ruling”, Lloyd Ramutloa – the Department of Labour.

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)

Considering adoption? Here’s what you need to know

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Growing your family through adoption is a bold step towards giving another child a loving, comfortable home. The legal age for being able to adopt in South Africa is 18, and it is a process conducted with caution, care and safety. Once the adoption is finalised, and acknowledged, you are regarded as the biological parents of the child.

Who can adopt a child?

Any persons over the age of 18 years can adopt a child. The rights of adoption cannot be prevented by the applicant’s financial status. Whether you are single, a widower, married or in a permanent family unit, you can apply. Being denied adoption based on your sexual orientation, race, religion and gender is unconstitutional, and these discriminatory practices are illegal.

Adoption procedure

  1. An application for the adoption of a child can be made in the Children’s Court and must be accompanied by the social worker’s report, a letter of child adoption recommendation by the provincial head of Social Development, as well as the necessary consent forms.
  2. The orientation and screening procedures follow, and include the explanation of the adoption process, interviews, various medical and psychological assessments, home visits and criminal clearances.
  3. When selected from a waiting list, the prospective adoptive parent is introduced to the child, and the social worker briefs you about the child’s profile.
  4. As the adoptive parent, you sign papers to effect the child’s change of name, and an adoption order is granted by the Children’s Court. The granted order is submitted to the National Adoption register, and the child becomes the legal child of the adoptive parent, attaining all rights as a biological child.
  5. The final step is accumulating a new birth certificate at Home Affairs indicating the surname change.

Points to remember

  • An adoption will not affect the adoptive child’s rights to property s/he obtained before the adoption.
  • Written and signed consent from the biological parent/s and other parties involved can be withdrawn up to 60 days after giving legal consent, and must be verified by the Children’s Court.
  • It is recommended that children are only placed after this period has lapsed.
  • If the child is older than 10 years of age, s/he must also give consent.

References:

  • Legalwise.co.za. (2017). Adoption. [online] Available at: https://www.legalwise.co.za/help-yourself/quicklaw-guides/adoption [Accessed 15 Jun. 2017].
  • The Children’s Act Explained. (2017). [ebook] p.3. Available at: http://www.justice.gov.za/vg/children/dsd-Children_Act_ExplainedBooklet1_June2009.pdf [Accessed 12 Jun. 2017].

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)

Legally owning a firearm in South Africa

B2Many people in South Africa own a firearm or intend to own one in the future. However, the right to possess a firearm is not guaranteed by law, and such a right is granted under limited circumstances under provisions of the Firearms Control Act 60 of 2000. 

When is owning a firearm illegal? 

Under the Firearms Control Act (Act No. 60 of 2000), a person can be guilty of a firearm offence when they: 

  • Do not hold the necessary permits or licences for firearms in possession. 
  • Point a firearm, antique firearm or airgun, whether or not it is loaded or capable of being discharged, without good reason to do so. 
  • Neglect to lock away the firearm in a prescribed safe, and/or loses the firearm due to failing to take necessary steps in ensuring the firearm’s safekeeping. 
  • Fail to report the firearm as lost, stolen or destroyed, 24 hours after having become aware of the loss, theft or destruction of the firearm. 
  • Amend information on the competence certificate, permit or licence. 
  • Sell, give or supply a firearm or ammunition to a person who is not allowed to possess a firearm or ammunition. 

Firearms that are not prohibited under the act include:  

  • Automatic firearms (firearms that fire continuously while the trigger is pulled down, until the rounds of ammunition have run out); 
  • Any firearm that has been altered to enable more than one shot being discharged with a single depression of the trigger; or  
  • The firearm’s serial number has been changed or removed without the Registrar’s permission. 

Registering a firearm 

To register a firearm, a natural or juridical person may make an application to the Registrar of Firearms, and the natural person must possess a competency certificate issued after the successful completion of training by the Safety and Security Training Authority.  

References 

  • Dolley, C. (2017). Gunmen involved in over 1 000 murders the focus of SA’s ‘biggest ever’ firearms investigation. [online] News24. Available at: http://www.news24.com/SouthAfrica/News/gunmen-involved-in-over-1-000-murders-the-focus-of-sas-biggest-ever-firearms-investigation-20170731 [Accessed 31 Jul. 2017]. 
  • Firearms Control Act 60 of 2000. (2017). [ebook] Cape Town. Available at: http://saflii.org/za/legis/num_act/fca2000192.pdf [Accessed 31 Jul. 2017]. 
  • Loc.gov. (2017). Firearms-Control Legislation and Policy: South Africa | Law Library of Congress. [online] Available at: https://www.loc.gov/law/help/firearms-control/southafrica.php [Accessed 31 Jul.

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)

Fearing Foreclosure: What are your rights as the homeowner?

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The recent junk status announcement has shaken us into a quick action of tightening our belts and letting go of luxuries to afford our day to day expenses. This financial condition inhibits the possibility of purchasing a new house, let alone affording your current home.  Have you thought about what you would do if your foreclosure wiped its shoes on your doormat? 

  • You have the option to sell  

Selling, rather than waiting for foreclosure, offers a greater possibility of you receiving greater value for your home. You may choose to sell privately or through an estate agent. It is advisable that your qualified conveyancing attorney be notified of any concerns, as well as any interests of potential buyers. During this time, look for alternative home solutions, and consider a suitable transfer date.  

Prior to the signing of the agreement of sale and the transfer of ownership, the property still belongs to you. 

  • You have time 

Before receiving a foreclosure notice, the bank allows a grace period for you to catch up on your bond instalments. It may be difficult to do so, considering your finances have already been tightrope walking over the past few months. Meeting with your bank allows the opportunity for a payment restructure to be discussed and agreed upon.  

The repossession procedure is paused during the time you are in application of or in debt review. The National Credit Act allows this opportunity. 

  • Approach your lawyer 

If, after attempting to recover payments, you receive foreclosure summons, contact your lawyer. As stated by section 26(3) of the South African Constitution, your eviction may not be finalised without an official court order. The courts consider all relevant circumstances before reaching a final eviction decision.  

You may not be arbitrarily removed from your home.  

  • You won’t be homeless 

You have the right to adequate housing, despite your previous or current economic standing. Adequacy is determined by a place to eat, shelter, a place to sleep, and a place to raise a family, and this accessibility is the responsibility of the state. Following the outcome of the sale by the bank, the home is no longer in your ownership, and the state classifies you as an unlawful occupier.  

The eviction process will then follow that of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act. 

References: 

  • National Credit Act 
  • Constitution of the Republic of South Africa [1996] 
  • Prevention of Illegal Eviction from and Unlawful Occupation of Land Act [No. 19 of 1996]

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)

Medical negligence claims

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Medical negligence refers to a negative consequence of a medical treatment that could have been avoided by the medical practitioner. The Health Professions Act 56 of 1974 outlines South African medical law and it should be consulted by any person who suspects a case of medical negligence.

What is Medical Negligence?

Imagine breaking your leg and requiring surgery for it to heal correctly. After being admitted for surgery, the surgeon guarantees you that it is a routine procedure and that your leg will heal perfectly. However, after the surgery, you have no feeling in your one foot. It is possible that a nerve has been damaged. If the surgeon is the primary cause of this consequence, for example he/she was careless, then it is considered as medical negligence.

It is worth noting that a medical practitioner cannot be held responsible for unforeseen complications that arose from unavoidable treatments. If complications arose from unknown sources, even though the practitioner has performed the treatment perfectly, he/she cannot be held responsible.

Any complication that arose after a treatment could be a result of negligence. If you suffer from an unusual complication that you suspect arose from medical treatment, it is advised to get a second opinion. If you are certain that the medical practitioner was negligent, you should not wait too long before you consult a medical malpractice lawyer, because your case can weaken over time; witnesses may forget what happened and documents can go missing.

How Is It Decided Who Was Negligent?

If you believe that you have suffered because of negligence by a medical practitioner, you have the right to lay a claim in court against him/her. A Judge will hear arguments from both legal representations and then decide whether or not negligence has occurred. Usually other medical practitioners are consulted to provide their expert testimony for both cases. The Judge must evaluate all the evidence and then pass judgment on the claim.

  1. In South Africa, the Judge must decide first whether or not the medical practitioner is liable, and then to what extent the patient must be compensated.
  2. In extreme instances, a medical negligence case can turn into a criminal case if it is proved that the medical practitioner is guilty of criminal conduct.

Sometimes the medical practitioner may be completely accountable, for example he/she could have performed the medical procedure incorrectly out of ignorance. It could also be decided that the company is completely responsible, because it did not provide the adequate equipment for the procedure. A Judge may decide that both parties are guilty of negligence and then hold them equally or partially responsible.

How Does the Claiming Process Work?

If you are no longer in need of medical attention, the first person you should get in touch with is your legal adviser. Then it is necessary to inform the Health Professions Council of South Africa to lodge a complaint.

Your legal adviser will request all your medical records to review the evidence so he/she can send a letter of demand to the medical practitioner. The response to this letter will determine whether or not the matter will go to trial; the practitioner may decide to rather settle the matter out of court and to meet the demands. If the matter does go to court, you may be required to testify.

If your claim is successful, the Judge may grant you compensation in an amount that is equal to what he/she considers fair; this may include the legal costs, loss of income and any other cost you incurred.

Reference:

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)

How do I cancel a lease?

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What happens when a landlord or a tenant wants to cancel a lease? What rules and what legislation apply? What protection does the law provide?

If you want to end your lease early, this can be done in situations where:

  • the Consumer Protection Act or Rental Housing Act applies, or
  • there’s a clause in the contract that allows for early cancellation, or
  • if both parties agree to it.

If, on the other hand, one of the parties wants to cancel because the other is in breach of the contract, then certain notice periods come into effect – the first of which being, of course, that the aggrieved party is required to give written notice for the breach to be remedied.

For tenants

  • If your landlord is in material breach of the lease, then cancelling your lease early will not be in breach of the contract.
  • If your landlord has met all the conditions of the lease and you decide to cancel your lease early, you will be in breach of contract unless the termination of the lease has been mutually agreed upon. Speak to your landlord before making any rushed decisions, chances are, you may be able to come to a mutual agreement whereby you are able to find a replacement tenant or sublet the property for the remainder of your lease.

For landlords

  • Firstly, look to the provisions of the lease itself. Most leases contain a breach clause, which indicate a period of a number of days that are necessary to be given as notice to the tenant of a breach. If there is no breach period specified, it will be a ‘reasonable period’ in terms of the common law.
  • If you give notice of the breach, and it is not remedied in the breach notice period, this means that you can take action to sue for whatever is owed or even issue summons and attach the tenant’s goods by evoking your landlord’s hypothec, but you cannot cancel the lease and evict.

When it comes to cancelling agreements, it is always best to consult a legal expert since doing something from your own understanding and experience could lead to a court case.

References:

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)