Inter Vivos Trusts en Testamentêre Trusts

B2

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?

B1

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

B2

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?

B1

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?

B2

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?

B1

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?

B2

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

B1

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?

B1

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)