Has your braai been approved?

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Every HOA has applicable building guidelines which are stipulated in a Constitution or Memorandum of Incorporation (“MOI”) which every homeowner should be made aware of, read and understood. The guidelines will differ from estate to estate and it is important for the homeowners to adhere to these provisions.

When one wants to erect a building structure on one’s property, written plans have to be lodged with the Homeowners’ Association for consideration. The plans must be within the building guidelines provided for in the Constitution or MOI and based on that, the HOA together with their architect will make a finding. If one erects a structure without these plans, a complaint may be lodged with the municipality and one may receive a notice to obtain written approval for the authorised building work following a summons to appear in court.

The notice to be served on a homeowner who has erected any building, excluding a temporary building, is being or has been erected without prior approval from the local authority shall be served with a notice, calling upon him/her to obtain the approval, in writing, as required by The National Building Regulations and Building Standards Act No. 103 of 1977 (“the Act”), by a date specified in such notice.  Failure to comply with such a notice may constitute to a criminal offence in terms of Regulation A25(11) of the Act.

If the homeowner fails to comply with the notice, the following procedural step will be a Summons in a Criminal Case. The charges may be based on the contravention of S4(1) of the Act, which states that no person shall without prior approval, in writing, of the local authority in question erect any building in respect of which plans and specifications are to be drawn and submitted in terms of such Act. In addition, Section 4(4) of the Act which states that any person erecting any building in contravention of Section 4(1) shall be guilty of an offence and liable on conviction to a fine not exceeding R100 for each day on which he was engaged in erecting such building.

Due to the homeowner failing to comply with the notice first served, he/she will then be charged with the contravention of Regulation A25 (10) of the Act as well. In essence, he/she would then be charged with the Count 1, the contravention of Section 4(1) and Section 4(4) of the Act and Count 2, contravention of Regulation A25(10).

The penalty awarded to an accused if found guilty will be decided on a case-by-case basis. The Court may consider the nature and the amount of the penalty, the aim of the penalty, which is to compel compliance with the Constitution or the MOI.

The Act makes provision for a general penalty clause where any person convicted of an offence under this Act in respect of which a fine or imprisonment is not exceeding R600 or to imprisonment for a period not exceeding 6 months and Section 4(4) of the Act makes provision for a person to be found guilty of an offence and may be found liable on conviction to a fine not exceeding R100 for each day on which he/she was engaged in erecting such building. However, the court may reduce the penalty to such an extent as it deems equitable or reasonable in the circumstances.

It is clear from the above that the consequences of erecting a structure on one’s property without approved written building plans could be hefty and is something that can be easily avoided when one exercises a bit of patience.

Reference List:

  • The National Building Regulations and Building Standards Act No. 103 pf 1977 (as amended)

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)

A brief overview of parole in South Africa

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Bob Hewitt a former South African tennis star, has recently made headlines again after his failed bid to be released on parole. Hewitt was initially granted parole, but Justice Minister Ronald Ramola ordered that the parole board’s decision be reviewed. Hewitt’s parole was subsequently set aside. Hewitt’s parole fiasco has put parole back into the public spotlight and this article will thus briefly discuss what parole is, when an incarcerated person can potentially qualify for parole, and which factors must be considered during a parole application.

Section 73(4) of the Correctional Services Act 111 of 1998 makes provision for prisoners to be “placed under correctional supervision or on day parole or on parole before the expiration of his or her term of imprisonment.” Such an early release will be subject to conditions of community corrections as set out by either the parole board or a court. The objective of setting such conditions “are to enable persons subject to community corrections to lead a socially responsible and crime-free life during the period of their sentence and in future”.[1]

Prisoners with determined sentences can be divided into two groups for the purposes of a parole discussion. The first group are those who have been sentenced for a determinate period and where the court has stipulated during sentencing proceedings that a certain part of the sentence will be a non-parole period. An example is when a convicted person is sentenced to 15 years imprisonment and may only qualify for parole after having served 5 years of the imprisonment period. The second group of prisoners with determined sentences are those where no non-parole period has been stipulated. Section 73(6)(a) states that these prisoners may only be considered for parole after having served at least half of the sentence as imposed by the court. It must also be noted that any prisoner who has served 25 years of imprisonment must be considered for parole, regardless of how long the sentence period is.[2]

There is no standard set of factors which are considered by a parole board when considering whether or not to release a prisoner on parole. These factors may include the following:

  • seriousness of the offence for which the prisoner was convicted;
  • length of the sentence;
  • behaviour whilst in prison;
  • whether or not the person has a support structure outside of the prison;
  • whether or not the person will be able to live independently;
  • whether or not the convicted person has been rehabilitated; and
  • any other factor deemed to be relevant by the board.

The board may also consider the opinion of those who were the victims of the convicted person’s crimes.

The decision of a parole board can also be taken on review. Section 76 of the Correctional Services Act makes provision for a Correctional Supervision and Parole Review Board. This board has the power to either confirm the decision of the parole board or to substitute it with any decision which the parole board should have made. The Correctional Supervision and Parole Review Board must give reasons for its decision. It is also important to note here that a court can intervene in instances where an imprisoned person has met all the requirements to be placed on parole but has not been so placed.[3]

Reference List:

  • Correctional Services Act 111 of 1998
  • http://www.scielo.org.za/pdf/pelj/v14n5/v14n5a05.pdf
  • https://www.iol.co.za/news/south-africa/no-parole-for-convicted-rapist-bob-hewitt-35907336
  • Motsemme v Minister of Correctional Services and Others 2006 (2) SACR 277 (W)
  • [1] Section 50 of Act 111 of 1998.
  • [2] Note that there are certain other limitations on when parole may be considered for people serving periodical sentences, people convicted as habitual criminals, people imprisoned for corrective training and people imprisoned for the prevention of crime. See sections 6(b) and (c) in this regard. A detailed discussion of these provisions falls outside of the scope of this article.
  • [3] See Motsemme v Minister of Correctional Services and Others 2006 (2) SACR 277 (W) in which the Court intervened in such an instance.

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)

Choosing guardians for your minor children

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My husband and I have two minor children. I am concerned about who will look after our children in the event of my husband and I passing away at the same time. We have been advised to nominate guardians in our wills. What should I keep in mind when choosing guardians?

Choosing guardians for your children is one of the hardest and most important decisions you will ever have to make. The thought of someone other than you raising your precious children is gut-wrenching. The worst part about it? You’ll never be fully comfortable with the choice, because no one can do as good a job as you. There is no perfect choice. However difficult it may be, naming guardians is a must-do for every parent. If the thought of placing the future of your children in someone else’s hands makes you queasy, imagine leaving the decision to someone you do not like, or do not even know. That is why parents should pick legal guardians – the persons who should raise their children if both parents die before the children turn 18.

When preparing a Last Will and Testament, the emphasis is typically on the disposition of property. However, selecting guardians to care for your minor children and nominating them in your Last Will and Testament is just as, if not more important, than distributing assets. The transition to life with guardians is especially traumatic as children come to terms with new parental figures, likely following the untimely death of one or both parents. The guardians you choose will be responsible for helping to heal this wound. It is of the utmost importance to choose guardians with whom you and your kids are comfortable and who has the emotional intelligence, time and interest to raise your children.

Choosing guardians

The first hurdle in choosing guardians is finding someone who is willing to act in such an important and responsible capacity. Raising someone else’s children is not a decision potential guardians should take lightly, as assuming guardianship will change the rest of the guardians’ lives, as they step into the roles as surrogate parents. Besides finding willing persons, choosing guardians involves objective and subjective assessments different from choosing other fiduciaries such as trustees. Guardians should be reliable and stable, with sound judgment and values that are similar to your own. The guardians will need to comfort, teach and encourage your children as they grow towards adulthood. Guardians who already have a warm and loving relationship with your children would be immensely valuable in such an emotionally trying transition.

Selecting family members

Instinctively, many think the right guardians for their children are family members. However, in some cases, nonfamily members may be a better fit. Naming friends as guardians is increasingly common, though relatives are still the most popular choice. While family is frequently an obvious choice, circumstances may make this impractical or undesirable. Hopefully your children are comfortable with grandparents, or an aunt and uncle who may have similarly aged children of their own. If this is not the case, close friends with similar values, who live nearby, and who have kids of their own, may be a better option than faraway relatives. The choice is specific to your lifestyle and your relationship with your family.

Naming alternate guardians

Unfortunately, couples divorce and families break up. Choosing a couple as guardians could turn out to be problematic if they divorce or one is otherwise no longer able to serve in the role. Such a scenario could give guardianship to a person whom you are less inclined to have raise your children. If alternates are not named and the nominated guardians are unable to care for your children, the decision as to their care could end up being made by a court. As a result, it is advisable to name alternates in case the first choice is unwilling or unable to act. This way your wishes can be carried out and the paths of your children’s lives are not at the discretion of a judge.

Revisiting your choice of guardians

Once you have carefully selected the guardians and alternates and have nominated them in your Last Will and Testament, it is important to remember to revisit the choices as circumstances change. As children (and guardians) age, their needs and abilities also change. You will want to make sure that the people you selected a few years ago are still the right choice today.

Reference List:

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)

Before signing a lease

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Tenants often take the signing of a lease agreement lightly and don’t read carefully through the terms and conditions. A proper lease agreement will ensure that both parties’ rights are protected. Landlords must ensure that they include all the necessary information in a lease agreement, while tenants must make sure that all the points discussed with the landlord are included in the lease, instead of just assuming that they are.

Enquire about costs and duration

The monthly rental cost and duration of the lease (including specific dates) must clearly be stated in the lease agreement to avoid any confusion regarding this matter. The lease agreement should also clearly indicate how and when any increases in rent will take place. If the landlord doesn’t provide you with this information, ask him/her to give it to you in writing so you can keep it on record.

The lease should also clearly explain any deposits (e.g. the rental deposit) that have to be paid, as well as the terms and conditions regarding the refund of deposits. All other variable usage expenses (like water or electricity) that the tenant will have to pay should also be clearly stated.

Some rental properties include utilities within the monthly rental cost, while others don’t. Some properties might offer on-site gym memberships, for example, which could save you money. Before you sign the lease to a property, ask your landlord what is included in the rental rate.

Get information regarding changes to the property

Once the landlord has agreed to rent out his property to you, make sure that you document any pre-existing damages to the property and its amenities before you sign the lease. Ask whether these damages can be fixed at the landlord’s expense.

Both the landlord and the tenant are responsible for the maintenance of the property. The responsibilities of both parties should be clearly stated in the lease agreement. The lease agreement should also indicate how the tenant must report any problems that require repair.

Make sure which amendments can be made to the property. Rather know the rules and stick to them, instead of making an alteration and then finding out afterwards that your landlord is unhappy with it. Just imagine your landlord’s disgust after finding out that you’ve repainted his freshly white-painted walls red!

Conclusion

Tenants should be sure to understand the contents contained in the lease agreement and that they understand all the clauses, terms and conditions to avoid any surprises later. While renting a property isn’t as much of a financial commitment as buying a home is, tenants should remember that a lease is nevertheless a legally binding document, meaning that they should make sure that they agree with everything contained therein before they sign it.

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)

Unlawfully evicted? Here’s a piece of PIE

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Unless the sheriff of the court has evicted you, you should remain right where you are. If anyone else carries out an eviction, it constitutes as unlawful according to the Prevention of Illegal Eviction from and Unlawful Occupation of Land (PIE) Act.

Regarding the eviction process, the PIE Act stipulates this:

  • Certain procedures must be followed
  • Notice of the intention of getting a court order must be given to the tenant
  • The landowner or landlord must apply to the court to have a written notice served on the tenant
  • The notice must be served at least 14 days before the hearing

The Rental Housing Tribunal (RHT) works alongside the Rental Housing Act, fostering the relationship between landlords and tenants to be one of fairness in terms of lease agreements and any unlawful evictions and unlawful notices to vacate. From the moment the lease agreement terms have been breached, for example, the tenant fails to make rent payments, the landlord may cancel the agreement and the tenant then becomes an illegal occupier.

The PIE Act states that no one may be without property except in terms of law of general application.  Arbitrary deprivation of property from any person is unlawful. Additionally:

  • no one may be evicted from their home, or have their home demolished without an order of court made after considering all the relevant circumstances;
  • it is desirable that the law should regulate the eviction of unlawful occupiers from land in a fair manner, while recognising the right of land owners to apply to a court for an eviction order in appropriate circumstances;
  • special consideration should be given to the rights of the elderly, children, disabled persons and particularly households headed by women, and it should be recognised that the needs of those groups should be considered.

The notice does not guarantee that the unlawful tenant will leave the premises as the court can only grant eviction if it is just and equitable. The owner must also have reasonable grounds for eviction and alternative accommodation available to the tenant.

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)

The termination of joint ownership

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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 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)

Inter Vivos Trusts en Testamentêre Trusts

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Daar bestaan heelwat onkunde oor die gebruik van trusts tydens erflatings. Hierdie artikel poog om lig op hierdie belangrike kwessie te werp.

’n Inter vivos trust,  staan ook bekend as ’n lewende of familietrust omdat dit gedurende jou leeftyd opgerig word. ’n Trust is ’n ideale langtermynstruktuur om bates van geslag tot geslag te beskerm terwyl dit boedelbelasting bespaar. Boedelbelasting is die heffing wat betaalbaar is op jou totale bates by jou afsterwe.

Wanneer bates in ’n trust gekoop of na ’n trust oorgedra word, vind kapitaalgroei binne die trust en dus buite jou boedel plaas. Dit beteken gevolglik dat die bates binne die trust kan groei en nie hoër boedelbelasting vir jou boedel tot gevolg sal hê nie.

Dit word aanbeveel om groeibates na ’n trust oor te dra deur dit aan die trust te verkoop of te skenk.

Die waarde van die bate(s) wat aan die trust verkoop word, sal dan in die vorm van ’n leningsrekening deur die trust aan jou (of jou boedel) verskuldig wees. Die waarde van die leningsrekening kan egter jaarliks suksesvol met R100 000 verminder word deur die jaarlikse vrygestelde bedrag van skenkingsbelasting aan die trust oor te betaal. Die trust betaal dan die bedrag van die skenking aan jou terug ter gedeeltelike delging van die leningsrekening wat aan jou verskuldig is.

’n Ander groot voordeel van ’n inter vivos trust is dat dit beskerming bied indien jy gedagvaar sou word, omdat die bates in die trust uitgesluit sal wees van sodanige eise. Die grootste nadeel van ’n trust is waarskynlik die feit dat jy volle beheer oor jou bates verloor. Jy as oorspronklike eienaar word nou ’n mede-trustee en moontlik een van die begunstigdes van die trust. Die mede-trustees het dus ook nou ’n sê oor die bates wat aanvanklik 100% deur jou beheer en bestuur was.

’n Testamentêre trust, anders as ’n inter vivos trust, word opgerig ingevolge iemand se testament en word eers geaktiveer wanneer die persoon te sterwe kom. Die hoofdoel van ’n testamentêre trust is om die belange van begunstigdes (in baie gevalle minderjariges) te beskerm.

Die trustees van die testamentêre trust verkry beheer oor die bates en bestuur en administreer die bates dan in terme van die bepalings van die testamentêre trust tot voordeel en in die beste belang van die begunstigdes.

Dit word aanbeveel dat die persoon(e) wat as voog(de) van minderjarige kinders benoem word ten minste een van die trustees van die testamentêre trust behoort te wees.

Anders as inter vivos trusts wat vir onbepaalde tydperke kan voortduur, word testamentêre trusts normaalweg beëindig sodra die trustbegunstigde(s) die ouderdom bereik wat in terme van die testament voorgeskryf word.

Hierdie is ‘n algemene inligtingstuk en moet gevolglik nie as regs- of ander professionele advies benut word nie. Geen aanspreeklikheid kan aanvaar word vir enige foute of weglatings of enige skade of verlies wat volg uit die gebruik van enige inligting hierin vervat nie. Kontak altyd u regsadviseur vir spesifieke en toegepaste advies. (E&OE)

Does living in a secured estate give a false sense or true sense of security?

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Choosing to live in a secured residential estate in South Africa is becoming ever more popular with South Africans. Entering your estate whilst security guards watch out for unknown assailants that may enter, living in your home peacefully knowing that the security guards are ensuring that people may only enter with your permission, giving the home owners a sense of security. But is this a true sense of security or is it false, and if the unfortunate happens that you are robbed or assaulted in your home, who is responsible? The Home Owners’ Association? The security company?

A Home Owners’ Association (HOA) is a body/committee comprising of the home owners of a specific estate entrusted with the running of the estate and communal affairs of those that own homes there.

On the 28th of August 2018, Judge J Unterhalter of the Gauteng Local Divison High Court handed down judgment in a matter of Van der Bijl and Another vs Featherbrooke Home Owners’ Association and Another. The Van der Bijls, home owners in a secured estate, brought an action against the (HOA) and the security company for failing to secure their safety, as their property was invaded by robbers.

On the 8th of April 2014, robbers unlawfully gained access into the estate during the night and then proceeded to enter the Van der Bijls’ home. Mr Van der Bijl suffered a gunshot wound to his abdomen and Mrs Van der Bijl sustained injuries from being assaulted. Due to these injuries, the Van der Bijls claimed damages from the HOA and the security company, alleging that the HOA and security company were wrongful in their duty to care and were negligent as they failed to take measures to ensure their safety.

The HOA defended the action and took exception to the Van der Bijls’ cause of action, citing that the HOA did not have a legal duty to take steps to protect the Van der Bijls from the robbery, thus there was no wrongfulness or negligence on their part. The court’s stance is that wrongfulness and negligence are two separate requirements of Aquilian liability. Where wrongfulness concerns the issue as to whether the law imposes liability by recognising a legal duty resting upon the defendant to prevent the harm that the plaintiff suffered, negligence concerns the defendant’s conduct judged against the standard of whether a reasonable person would have foreseen the harm and guarded against it, inter alia, a defendant may be burdened with a legal duty to prevent a harm, but his/her conduct may be blameless because the harm was not reasonably foreseeable. Thus, a defendant may be negligent but not act wrongfully because there was no duty to prevent the harm.

The HOA took exception to the plaintiff’s particulars of claim inter alia, it did not have a legal duty to protect the Van der Bijls from the robbery, citing that the Van der Bijls did not make a case for Aqulian liability as there was no wrongfulness. The plaintiff’s counsel relied heavily on the decision of the Loureiro case, wherein the Constitutional Court held that a private security company, who was employed and remunerated for crime preventing, owed a duty to stop avoidable harm. The Constitutional Court went to express the opinion that there would be wholesome deterrent effect if private security firms were not insulated from their own mistakes. Thus, the plaintiff’s counsel submitted that, as in the Loureiro case, the security company employed by the HOA had a duty to protect the residents of the estate including the Van der Bijls and the HOA bears the same duty. But the two cases do not bear the same facts, inter alia, Loureiro did not decide that Mr Loureiro, by hiring a security firm, was under any duty to secure the house, it was the security company that owed the duty to protect Mr Loureiro and his family. So the fact that the HOA employed the security company to provide security for the estate does not simply follow on that the HOA owed the same duty as that assumed by the security company. Such a duty would have to be shown to exist apart from what the security company had undertaken to do. But yes, following the logic of Loureiro, it is the security company that owed a duty to the HOA and the members it represents.

Hence the Van der Bijls may have recourse against the security company and they are one of the defendants. Further, it was noted that the robbers/assailants that caused the harm were not sued and which the plaintiff will have a claim against.

While the Van der Bijls definitely enjoy fundamental rights to security of the person, bodily, physical and psychological integrity, dignity and privacy, and these rights were infringed by being assaulted in their home, the big question is from whom can these rights be claimed. The answer is, you will have a   claim against the assailants, and based on the Loureiro case, the security company, but the Judge failed to see how the HOA, which is an extension of the collective will of the estate home owners, is burdened with the duties to secure these rights. Should the home owners be burdened with these duties, then the question is, does my neighbour have a duty to protect me in my home? He or she may come to your aid and he/she may be described as being valiant to do so but it is not out of duty. Further, there was no contractual obligation, be it in the Memorandum of Agreement or written agreement  between the HOA and the home owners,  holding the HOA liable for protecting the Van der Bijls.

In conclusion, the court found that the plaintiff’s particulars of claim did not set out a cause of action, which follows that the HOA did not have a legal duty to protect the home owners, in particular, the van der Bijls, hence not wrongful.

So, the next time you are thinking of buying a property in an estate, make sure you read the Memorandum of Agreement and understand your rights as a home owner.

Reference List:

  • Van der Bijl and Another v Featherbrooke Estate Home Owners’ Association (NPC) and Another; In Re: Featherbrooke Estate Home Owners’ Association (NPC) v Van der Bijl (12360/2017) [2018] ZAGPJH 544; 2019 (1) SA 642 (GJ) (23 August 2018)

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)

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)