Loslitdag is die land se grootste geldinsamelings –en bewusmakingsprojek vir persone met gestremdheid. Die personeel van GUTHRIE  –en THERON  in Caledon het vanjaar besluit op die hoedtema ter ondersteuning van loslitdag op 2 September 2016.



Op 10 September 2016 is Dirtophia se dirtophiaStaalwater – 7km pretdraf in Caledon aangebied.

Hierdie geleentheid word jaarliks deur Dirtophia aangebied en word ondersteun deur deelnemers van heinde en verre.


GUTHRIE & THERON CALEDON se  prokureurs personeellede en eiendomsagent het deelgeneem.

Dit was ‘n spanbou-geleentheid wat baie geniet is.


Charl Cilliers en Liana Swart  ( 0282121060 )
Eiendomsagent :
Antoinette du Toit, ( 082 417 9611 )


Is it beneficial to create a trust?

A2A Trust can be described as a legal relationship which has been created by the founder, who places assets under the control of Trustees. This either happens during the founder’s lifetime (inter vivos trust) or at the death of the founder (testamentary trust). This article will focus on the advantages and disadvantages of an inter vivos trust.

The advantage of a trust is firstly, that inter vivos trusts can be used to minimise estate duty. No estate duty should be payable on assets owned by the Trust as a Trust does not terminate or come to an end, since it has perpetual succession. Estate duty is currently taxed at 20% of the gross estate value. This saving in estate duty can be substantially large, especially for high net worth individuals who are worth millions of rands. Secondly, as the Trust’s assets are not owned by the beneficiaries, the creditors of the beneficiaries do not have a claim regarding the assets of the Trust. This advantage is especially important for people who are exposed to potential liability. Companies as well as individuals are able to transfer assets to Trusts. Lastly, because Trusts have perpetual succession, beneficiaries will be able to continue enjoying the benefit of the Trust assets even if one of the Trustees were to pass away.

The disadvantages are firstly, the costs of setting up a Trust, which can be high. It may cost up to R 20 000 to set up a Trust. If immovable property is transferred to the Trust then transfer duty needs to be paid. The founders of the Trust may also be liable to pay Donations tax, which is taxable at 20% of the value of the assets transferred to the Trust. Transfer duty is taxed according to a sliding scale. Secondly, Trustees could find themselves personally liable for losses suffered by the Trust if it can be proven that they did not act with care, diligence and skill in terms of section 9 of the Trust Property Control Act. It is important to note that “skill” requires more than just acting in good faith. Trustees may be proven to be negligent not only if they invested in risky investments, but also if they invested capital too conservatively, causing the capital not to grow sufficiently. Trustees also need to be aware of the fact that they can still be held liable if only one Trustee has signing power on behalf of the Trust and he/she makes a poor decision that holds all the Trustees liable for his negligence.

The founder of the Trust needs to recognise that the assets in the Trust do not belong to him/her anymore. The assets belong to the Trust. Should this loss of control (from founder to Trust) not occur, the Trust may be seen as an alter ego of the founder, which could result in the assets being included in creditors’ claims as well as having estate duty consequences.

The earnings from the assets in the Trust are taxed at 40%, and interest exemptions do not apply to Trusts. Also, the inclusion rate for Capital Gains tax for an inter vivos trust is 66.6% whereas the inclusion rate for individuals is 33.3%. Lastly, as we can see from the above, a Trust is not for everyone.

It is important to weigh up the advantages and disadvantages before deciding whether to go ahead or not. The best decision would be to speak to a certified financial planner or attorney who can assist you in making the correct decision regarding your personal situation.

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 defence of property

A1The common law provides that an owner may protect his property from harm or damage even though there might not be any physical risk of harm to the owner himself.

A person may use force in order to protect property and his or her rights therein. Private defence of property can only be resorted to if there is serious danger to the property or the owner’s rights therein. The danger must involve risk of loss, damage or destruction of the asset. The question is whether there were reasonable grounds for the defender to think that because of the offender’s unlawful conduct the danger existed.

There must be evidence that the property, movable or immovable, was in danger of unlawful damage and destruction at the moment action was taken. Unlike self-defence the danger need not necessarily have commenced or be imminent. Thus, private defence of property by means of protective devices is permitted in response to merely anticipated danger.

In order for a situation of private defence to arise, there must be evidence that:

  • action was necessary to avert danger;
  • the defence was a reasonable response;
  • the defence was directed against the attacker;
  • the attack was unlawful.

The measures taken to protect the defender’s proprietary interests must have been the only means whereby he could avoid danger. The rule regarding retreating has no application in the defence of property. One is not expected to abandon one’s property. Likewise, the inhabitants of dwellings are not expected to flee from homes, rather than resist the intrusion of a burglar.

The test is whether the means of defending the property were reasonable by having regard to all the circumstances, such as the nature and extent of the danger, the value of the property, and the time and place of the occurrence. The value of the property seems an important factor in determining the reasonableness of the defence.

In Ex parte Minister of Justice: In re S v Van Wyk the Court decided that killing in defence of property can be justified in circumstances where no other less dangerous or effective method is available to protect property.

In Ex Parte Minister of Safety and Security: In re S v Walters  2002 (CC), Judge Kriegler stated that while it was unnecessary to say whether our law allows for killing in defence of property, what is material is that the law applies a proportionality test, weighing the interest protected against the interest of the wrongdoer. These interests must now be weighed in the light of the Constitution. Judge Kriegler said that surely in Constitutional terms, the value of a life must be prized above the value of property.

The decision in Van Wyk is ripe for reconsideration by the Constitutional Court. Arguably the best route they could take is to draw a distinction between an excuse and a ground of justification. They could say that killing in defence of property is unlawful or wrongful, but in exceptional circumstances could be excusable if a reasonable person would have done the same thing.

It could therefore be argued that a deadly attack in defence of property would only be regarded as justifiable in extreme circumstances.

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).

SARS prescription

A2Imagine the following scenario: a taxpayer named Andrew is on his annual vacation for four weeks. On the fifth day of his vacation, he is lying carefree in the sun with his toes wiggled into the warm beach sand. A thought crosses his mind: perhaps he must check his email for a change.

Fast forward eight hours: Andrew logs in to his email. He gives the emails in his inbox a quick scan. Suddenly his stomach cramps. His heart beats faster. His hands start to sweat. His eye caught an email from SARS. Andrew opens the email and then the attachment reluctantly. The attachment contains a letter from SARS stating that they are going to re-assess his income tax for a specific tax year. The assessment for that particular tax year has been issued more than four years ago. Can SARS do this?

To be subjected to the prescription (or re-opening) of an assessment that has been finalised a few years ago already, is something taxpayers don’t even want to contemplate. However, in terms of the new Tax Administration Act, 28 of 2011 (TAA) SARS may go back more than three tax years into the past, prescribe and re-assess a tax return but only if the Commissioner is objectively, based on the facts, satisfied that both the following statutory requirements are met:

  1. There was fraud, misrepresentation or non-disclosure of material facts.

“Fraud” is defined as an unlawful act committed with the intention of misleading another person. The misleading information must cause the other person to act differently than they would have acted if they were not given the misleading information.

The legal meaning of “misrepresentation” refers to a false statement made by a person, regardless of whether the statement is made negilently, fraudulently or innocently. Misrepresentation does not include the expression of an opinion or an interpretation of law.The taxpayer must have made a positive statement which contained one or more facts that were untrue.

Note that innocence cannot be pleaded as an excuse for misrepresentation. Taxpayers thus have to make sure about the content of any statement they make regarding their tax affairs before making such a statement.

“Non-disclosure” means failure to reveal a fact if there is a duty to disclose it. Whether or not there is an intention to conceal it is irrelevant.

  1. The above fraud, misrepresentation or non-disclosure of the material facts was the direct cause that the taxpayer had been assessed for a lower amount of tax than if the taxpayer had disclosed these material facts referred to in section (i) above, to SARS.

There must be evidence of a direct link between the non-disclosure or misrepresentation of the material facts and the taxpayer paying too little tax. If the fraud, non-disclosure or misrepresentation of the material facts did not cause the taxpayer to be liable for less tax than he was assessed for without the material facts, the second requirement listed above is not met and SARS shouldn’t be able to apply this section of the TAA.

Generally the onus of proving that income is not taxable or that an expense is tax-deductable rests with the taxpayer. However, if SARS wants to apply the provisions of this section of the TAA, the onus of proving that the above requirements are met, rests with the Commissioner.

It seems that if the fraud, non-disclosure or misrepresentation of material facts did take place but did not cause the taxpayer to pay less tax than if SARS had been in possession of these material facts, and SARS would have assessed the taxpayer in exactly the same way as with the original assessment, despite SARS becoming aware of the material facts now, SARS cannot claim that the under-assessment was due to that fraud, non-disclosure or misrepresentation of the material facts.

If SARS wants to issue an additional assessment on the basis of requirement (i) above but requirement (ii) is not met, the taxpayer can deal with this situation using the objection and appeal provisions available.

In the light of SARS’s tools to go back and prescribe assessments for old tax years, it might be prudent to keep tax records for longer than the required retention periods prescribed by SARS.

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)

Bail or not

A1People are often outraged when they hear of accused persons who have been released on bail. In this article the factors to be considered when deciding whether someone should be let out on bail or not will be discussed. This will allow us to better understand why someone has been released on bail or why they have not.

According to section 35(1)(f) of the Constitution[1] everyone who is arrested for allegedly committing an offence has the right to be released from detention if the interests of justice permit, subject to reasonable conditions. This provision sets out that the law cannot take away an innocent person’s freedom arbitrarily but recognises that in certain circumstances it may be in the interests of justice to take away or limit this freedom.[2]

The next question that arises is how we know when the refusal to grant bail is in the interests of justice. According to section 60(4) of the Criminal Procedure Act[3] (CPA) the interests of justice do not permit the release from detention of an accused where one or more of the following grounds are established:

  1. Where there is the likelihood that the accused, if released on bail, will endanger the safety of the public or any particular person or will commit certain offences;
  2. Where there is the likelihood that the accused, if released on bail, will attempt to evade trial;
  3. Where there is the likelihood that the accused, if released on bail, will attempt to influence, intimidate or conceal witnesses or destroy evidence;
  4. Where there is the likelihood that the accused, if released on bail, will undermine or jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system;
  5. Where there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security.[4]

In considering whether the grounds in (a) to (e) above have been established various factors, which are set out in Sections 5 – 9 of the CPA, may be taken into consideration, which include the following:

  • the degree of violence towards others implicit in the charge;
  • the accused’s ties to the place at which he or she is to be tried;
  • assets and travel documents held by the accused;
  • the accused’s relationship with the witnesses and the extent to which they could be influenced;
  • whether the accused supplied false information during his or her arrest or bail proceedings;
  • any previous failure to comply with bail conditions or indications that he or she will not comply with any bail condition;
  • whether the nature of the offence or the circumstances under which the offence was committed is likely to induce a sense of shock or outrage in the community; and
  • whether the shock or outrage of the community might lead to public disorder if the accused is released.[5]

The court decides whether the accused should be let out on bail by weighing the interests of justice against the right of the accused to his or her personal freedom and in particular the prejudice he or she is likely to suffer if he or she were to be detained in custody, and must take into account, inter alia, the period for which the accused has been in custody; the probable period of detention until the end of the trial if bail is not granted; the reason for any delay in the trial and any fault on the part of the accused; any impediment to the preparation of the accused’s defence due to the detention of the accused, and the accused’s state of health.[6]

When dealing with Schedule 5 and 6 offences the accused will be detained in custody unless the accused can show the court that it is in the interests of justice or that exceptional circumstances exist which permit his or her release, respectively. [7]

We can see from this article that the court must weigh up many factors against each other and although we do not always understand why accused persons are released on bail, anyone would want a fair bail application if they found themselves in that same position.


  • The Constitution of the Republic of South Africa, 1996
  • J Chaskalson & Y De Jong – Criminal (In)Justice in South Africa, 2009:86
  • The Criminal Procedure Act 51 of 1977

[1] The Constitution of the Republic of South Africa, 1996.

[2] J Chaskalson & Y De Jong – Criminal (In)Justice in South Africa, 2009:86.

[3] Section 60(4) of the Criminal Procedure Act 51 of 1977.

[4] Section 60(4) of the Criminal Procedure Act 51 of 1977.

[5] Section 60(5-9) of the Criminal Procedure Act 51 of 1977.

[6] Section 60(10) of the Criminal Procedure Act 51 of 1977.

[7] Section 60(11-12) of the Criminal Procedure Act 51 of 1977.

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)

Voor- en nadele van Trusts

A2Trusts hou verskeie voordele, maar ongelukkig ook nadele in. Alhoewel hierdie waarskynlik nie ‘n samevatting van alle voordele en nadele is nie, deel ons graag ons ondervinding van die vernaamste voor- en nadele by die oorweging van ‘n Trust met u.


  • Groei wat in die trustbates plaasvind, vestig in die Trust en nie in u persoonlike boedel nie.
  • Deur die bates aan die Trust te verkoop, sal die bedrag wat deur die Trust aan u verskuldig is, uitstaande op die leningsrekening bly en sal dit as ‘n bate in u boedel beskou word. Hierdie bedrag kan egter vir boedelbelastingdoeleindes verminder word deur die jaarlikse skenkingsbelastingvrystelling van R100 000 te benut.
  • ‘n Trust bied beskerming teen probleme indien u verstandelik onbevoeg raak. Dit kan dit ook onnodig maak om ‘n kurator aan te stel om u finansiële sake te hanteer.
  • ‘n Trust bly vertroulik, anders as dokumente soos testamente en rekords van bestorwe boedels wat openbare dokumente is en oop is aan die publiek ter insae.
  • ‘n Trust kan finansiële beskerming aan gestremde afhanklikes, spandabelrige kinders of begunstigdes met spesiale behoeftes bied.
  • ‘n Trust kan die koste van die administrasie van opeenvolgende boedels omseil deur voorsiening vir opeenvolgende begunstigdes te maak.
  • ‘n Trust kan die emosionele stres op u gesin verminder wanneer u sterf, aangesien die Trust sal voortgaan sonder enige van die formaliteite wat by ‘n bestorwe boedel vereis word.
  • Deur u Trustees verstandig te kies, kan u professionele bate- en beleggingsbestuur verseker.
  • Die Trust sal u in staat stel om, via die Trustees, na u dood ‘n mate van beheer oor die bates in die Trust te behou.
  • Na u dood en voordat u boedel afgehandel is, kan die Trust ‘n bron van inkomste aan u afhanklike(s) voorsien.
  • U sal verhoed dat u minderjarige kind se erfenis in die Voogdyfonds geplaas word.
  • U sal die probleme vermy om bates te moet verdeel ten einde ‘n gelyke uitkering aan die erfgename te doen.
  • Trustinkomste kan na die stigter se dood onder die begunstigdes met laer belastingkategorieë verdeel word wanneer individuele vrystellings aangewend kan word, maar alle belasbare inkomste wat in die Trust behou word, sal sonder enige vrystellingsvoordele teen 40% belas word.
  • Inkomstevlakke kan na goeddunke van die Trustees saam met die veranderende behoeftes van die begunstigdes gevarieer word.
  • Omdat die bates die eiendom van die Trust bly, en nie van die begunstigdes nie, hoef hulle ook nie die bates as deel van hulle boedels in te reken wanneer hulle sterf nie, wat ‘n besparing in boedelbelasting tot gevolg het.
  • Die trustbates sal om dieselfde rede teen krediteure beskerm wees.


  • U het nie meer algehele beheer oor u bates nie, aangesien die ander Trustees ook ‘n sê sal hê.
  • ‘n Trust word geregistreer en die owerhede kan toegang daartoe verkry.
  • U kan moontlik die verkeerde Trustees kies. Daar kan probleme ontstaan indien hulle wedywerende erfgename is. Dit is hoekom dit so belangrik is dat u minstens een onafhanklike Trustee moet hê.

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)

Pay your levies, or else…

A1Dear Mr Lawyer

I am the owner of a sectional title, and I have paid my levies every month as required, until the water started seeping through the ceiling of my enclosed balcony into my section when it rains. The leak was clearly emanating from a defect in the common property. I asked the body corporate on numerous occasions to repair the defect, yet after four months of writing letters and sending emails the body corporate still has not done anything to honour this simple request. As a frustrated owner I resorted to desperate measures and employed a contractor to repair the property defect. I settled the bill myself.

May I withhold my levies for a period to set off the money that is owed to me by the body corporate?

Dear Mr Owner

Although this action may sound reasonable, the right to stop paying or to set off a debt against levies is not legally justified and owners are not, under any circumstances, entitled to simply withhold levies.

There is no provision in the Sectional Titles Act 95 of 1986 or the rules that gives an owner the right to withhold levy payments. Even if an owner incurs expense in performing an emergency repair to the common property, and believes that the body corporate owes him money, the owner may only set off the debt against the levies once it becomes liquid.

An amount can only be liquid once it has been agreed upon. An owner cannot set off the amount he believes he is entitled to deduct. The trustees, judge or arbitrator must have confirmed the amount.

If Mr Owner does withhold his levies without the amount being liquid, he is subject to the following sanctions in terms of the prescribed rules:

  • Firstly, the trustees are entitled to charge interest on arrear amounts at a rate determined by them, and so the defaulting owner may receive a larger account, due to the interest on his arrears, than if he had paid his levies.
  • What is more, The Sectional Titles Act imposes a positive obligation on trustees to recover levies from defaulting owners. Not only does the Act empower them to charge interest, the scheme attorneys will most likely issue summons against the defaulter for all costs that the Body Corporate may incur in recovering any arrears.
  • Secondly, the prescribed management rules provide that, except in the case of special and unanimous resolutions, an owner is not entitled to vote if any contributions payable by him in respect of his section have not been duly paid. Therefore, an owner who withholds his levies is unable to vote for ordinary resolutions in respect of the section that he is withholding levies on.

Mr Lawyer, how does an owner deal with a situation where he believes the body corporate is liable for payment?

A dispute must be declared with the Body Corporate by written notice of the dispute or query to the trustees. The trustees or Body Corporate then have 14 days from receipt to resolve the dispute. During this period, the parties should meet to try and resolve the dispute. If there is no resolution after the 14-day period, either party may demand that the dispute be referred to arbitration. The arbitrator must make his/her recommendations in settlement of the dispute within 7 days from the date of commencement of the dispute. The decision of the arbitrator shall be final and binding and may be made an order of the High Court.

It is clear that prescribed processes are in place according to which disputes and related issues can be settled. Not only will this ensure that you act within the legal guidelines, but it will also eliminate unnecessary frustration.

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)

Guthrie & Theron Caledon brei uit met eiendomsagentskap

Sedert die begin van 2016 het Guthrie & Theron Prokureurs Caledon twee Picture1
eiedomsagentskapkantore geopen. Die eerste kantoor is geleë in dieselfde gebou as die prokureurskantoor te Hoopstraat 19. Hul eiendomsagent hier is Antoinette du Toit

082 417 9611 / 028 212 1060,

Dan is daar ‘n tweede kantoor in Riviersonderend oopgemaak wat ook geleë is in die in Hoofstraat  by Kantoor nr.1 langs die Shell vulstasie op linkerkant.

Hier is Guthrie & Theron se eiendomsagent  Adri Schneeberger

072 498 8711 of  028 050 0770;

Kontak hulle gerus vir enige eiendomsnavrae.


Guthrie & Theron Prokureurs Caledon verhuis en word 120 jaar oud


Sedert die aanbreek van 2016 was daar groot bedrywigheid en heelwat nuwe verwikkelinge by Guthrie &Theron Prokureurs, Caledon.

Onlangs het hulle kantore verskuif na hulle nuwe gebou te Hoopstraat 19, net onder Victoria Mall en langs Heidehof Tehuis vir bejaardes.

Verder het hierdie prokureursfirma nou uitgebrei en bied hulle ook nou die dienste van hul nuwe eiendomsagentskapkantoor  op dieselfde perseel  aan.

Guthrie & Theron Prokureurs  vier ook hierdie jaar met trots hul 120ste verjaardag. Hierdie regsfirma is gestig in 1896 en was sedertdien intrinsiek deel van die geskiedenis van Caledon. Na al die jare van deel wees in die lief en leed van baie van die inwoners van Caledon deur opstel testamente, boedels, oordragte van eiendomme  en hofwerk, is hierdie regsfirma nog steeds dinamies bedrywig om daagliks kliënte te voorsien van die regshulp wat hul belange op die hart dra.

Capital Gains Tax and the sale of a property

A1_GTCapital Gains Tax was introduced on 1 October 2001. Capital Gains Tax is payable on the profit a seller makes when disposing of his property.

What is meant by Capital Gain?

A person’s capital gain on an asset disposed of is the amount by which the proceeds exceed the base cost of that asset.

What is base cost?

The base cost of an asset is what you paid for it, plus the expenditure. The following can be included in calculating the base cost:

  1. The costs of acquiring the property, including the purchase price, transfer costs, transfer duty and professional fees e.g. attorney’s fees and fees paid to a surveyor and auctioneer.
  2. The cost of improvements, alterations and renovations which can be proved by invoices and/or receipts.
  3. The cost of disposing of the property, e.g. advertising costs, cost of obtaining a valuation for capital gains purposes, and estate agents’ commission.

How was base cost of assets held calculated before 1 October 2001?

If the property was acquired before 1 October 2001 you may use one of the following methods to value the property:

  1. 20% x (proceeds less expenditure incurred on or after 1 October 2001).
  2. The market value of the asset as at 1 October 2001, which valuation must have been obtained before 30 September 2004.
  3. Time-apportionment base cost method. (Original cost (proceeds – original cost) x number of years held before 1 October 2001) divided by (the number of years held before 1 October 2001 number of years held after 1 October 2001).

How is Capital Gains Tax paid?

Capital Gains Tax is not a separate tax from income tax. Part of a person’s capital gain is included in his taxable income. It is then subject to normal tax. A portion of the total of the taxpayer’s capital gain less capital losses for the year is included in the taxpayer’s taxable income and taxed in terms of normal tax tables.

How is Capital Gain calculated?

If you are an individual, the first R30 000 of your total capital gain will be disregarded. Then 33.3% of the capital gain made on disposal of the property must be included in the taxable income for the year of assessment in which the property is sold. When the property is owned by a company, a close corporation or an ordinary trust, 66.6% of the capital gain must be included in their taxable income.

Primary residence and Capital Gains Tax

As from 1 March 2012 the first R2 million of any capital gain on the sale of a primary residence is exempted from Capital Gains Tax. This exemption only applies where the property is registered in the name of an individual or in the name of a special trust. The property should furthermore not exceed 2 hectares. If the property is used partially for residential and partially for business purposes, an apportionment must be done.

If more than one person holds an interest in a primary residence, the exclusion will be in proportion to the interest held by each party. For example, if you and your spouse have an equal interest in the primary residence, you will each qualify for a primary residence exclusion of R1 million. You will also be entitled to the annual exclusion, currently R30 000.

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)