6 Steps to speed up your property transfer

B1Buying a house is a big decision, one in which the buyer will have invested numerous hours of research, planning and careful consideration. It makes sense then that a buyer would want their property transfer to be finalised as quickly as possible. But while property transfers are of nature a time-consuming process, there are steps buyers can take to make sure the process runs as smoothly as possible.

Step 1 – Determine what you can afford

Before you start typing your first Google search as you begin browsing the For Sale signs on the net, you should have a clear idea of what they can afford. Determining what you can afford will take careful budgeting and planning, an area where the assistance of a financial consultant will not go amiss.

Step 2 – Save for the deposit 

Once you have a clear sense of what your budget will allow, you can start saving up for the deposit. With the necessary guidance, you will be able to estimate how big a deposit you will be able to save ahead of the time, something that will lower the mortgage amount you need to apply for. This step can be taken far in advance, however, and will benefit you greatly once you do decide to invest in your own property.

Step 3 – Assess your credit and get pre-approval

Another step that should be taken beforehand, is to analyse your credit record and get pre-approval for a home loan. This will allow you to plan more efficiently by knowing how great a deposit you will have to save up by knowing how great a home loan you can qualify for. Through pre-approval, you remove any unwanted surprises that may have awaited you otherwise.

Step 4 – Keep the necessary documentation ready

This may feel like skipping ahead, but once you’ve found the perfect home and want to apply for a home loan, you will need to submit a number of documents, including documents you can prepare beforehand, such as copies of your ID and marriage certificate/antenuptial contract (if married). Having these documents ready ahead of time saves you valuable time when you’ve found your dream home.

Step 5 – Find a real estate agent

Real estate agents can offer you insight into an industry and market that requires all the know-how you can muster. By obtaining the assistance of a trusted real estate agent, buyers are able to minimise their costs and efforts in the property search, while also improving their chances of navigating the legislative processes that come with real estate purchases.

Step 6 – Find your ideal home

By ensuring that steps 1 to 5 are all taken care of, everything else is smooth sailing, where you can sit back and enjoy the ride without having to worry about the hiccups that could have come up along the way.

Limit the time your property transfer will take, step by step.

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)

Moving house safely

B1We’ve all felt like it – the hairs on the back of your neck standing up, sure someone is keeping an eye on you, watching as you receive a DVD box set that was for some reason labelled “essential” on the online store, sneaking in at 09:20 after the morning jog you were sure was shorter yesterday, or absent-mindedly fixing your mask as you stand in the chocolate aisle at the supermarket.

Feeling like you are crossing a line has become part of daily life and moving during the lockdown may have many people feeling just as guilty.
But as with most regulations, things have changed (except for the mask part – it’s best to just ignore the tickle till you get to your car). Moving during Level 3 is allowed, and with the effects of the lockdown touching so many lives, a very possible occurrence as landlords and tenants alike seek their footing.

The good news is that moving safely is entirely possible.

The most important element is following adequate safety measurements throughout the process. Businesses operating under Level 3 are all required to have an adequate safety plan in place, with a COVID-19 Compliance Officer that oversees the company’s compliance with the necessary preventative measures. These requirements ensure that estate agents and transport companies keep every person involved in the move safe. These are the most important guidelines to follow when moving:

  • Get the necessary permits from a SAPS office that will allow you to travel during the lockdown.
  • Adhere to social distancing and keep a minimum of 1,5m between yourself and the transport team.
  • Have sanitiser handy to offer to all parties before and after the move.
  • Sanitise the surfaces of the old property once furniture has been removed; sanitise surfaces in the new property both before and after furniture has been moved in, as well as the furniture itself.
  • Be kind with your words, not your actions, for the time being.

These precautions are there for a reason. The real estate industry relies heavily on multi-channel interaction and is, consequently, at high risk. This has been seen in the Johannesburg and Pretoria deeds offices, which were forced to close temporarily on June 12 after conveyancers in the building were tested positive for the virus, and the Cape Town deeds office, which has already closed twice for the same reasons.

While moving is allowed, tenants are still encouraged to move into a new safety bubble only if it is truly necessary. When moving is truly the only option, ensure that the necessary safety precautions are adhered to.

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 rental relationship during lockdown


The relationship between landlord and tenant is a symbiotic one, where the efforts of either party results in the best outcome for both parties. During the lockdown, this two-way relationship between many tenants and landlords has been threatened. The biggest contributor to this is quite simple: a lack of information.

Paying your dues

One of the biggest impacts the lockdown has had on tenants is through affected income. Unfortunately, tenants are still required to pay the full rental amount if they are still able to occupy the property, regardless of how their income has been affected. Where income has been affected, tenants should discuss the possibility of a reduced rent directly with their landlords.
Landlords, however, also rely on rental income and cannot always afford to lower rental amounts. When this is the case, tenants can, technically, apply to the Rental Housing Tribunal to request a reduction in rent, but due to new cases not being heard at the moment, such a request is unlikely to be successful. The best option is for tenants to apply for State assistance, and so ensuring the least impact on both parties.
With these types of requests, it is important to note that landlords will have to be furnished with relevant personal information of the tenant to corroborate a tenant’s inability to pay their rent. The landlord will, however, be responsible for guarding the privacy of their tenant’s personal information in such a case.

Sticking to the rules

Even when the relationship is no longer a beneficial one, and becomes filled with strife, landlords may not terminate a lease or refuse services to tenants and may not insist on conducting an investigation of the property without the tenant’s express permission. Similarly, tenants may not cancel their leases during this time either. Such “threatening” actions are highly discouraged while the country is in any level of the lockdown.
As before, a tenant’s deposit may not legally be used to cover rental arrears, but only for its intended post-rental purposes. Deposits, along with the accrued interest, must be refunded to the tenants upon their exit, where only the necessary cost of repairs may be deducted.
Landlords are also still responsible for the maintenance of their properties, and for ensuring liveable conditions for their tenants. During any maintenance procedures landlords and workmen are obliged to adhere to social distancing and must follow adequate sanitising methods throughout. The landlord must also provide the necessary clothing and equipment for the procedures to be completed themselves.

End of lease

But while tenants may not be evicted and leases may not be terminated, the reality is that leases do come to an end. As far as possible, tenants and landlords are encouraged to continue their relationship, even if just on a month-to-month basis until moving house can be done without safety hazard. Where the continuance of a lease is not possible, tenants should obtain a permit from the SAPS allowing them to move freely during their relocation, and follow strict safety measures throughout the process.

For more information, visit the Western Cape Government’s information page.

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)

Effects Corona Virus will have on business operations and personal affairs

B1COVID-19 may, undoubtedly, have the largest impact on the global economy which we have ever witnessed. It has most certainly had an unprecedented impact on local business and the personal affairs of all South Africans. This is, however, not the time to shy away from the challenges which lie ahead. Businesses and individuals need to be proactive about their current positions and consider the effects that the Corona Virus will have on their current and future business operations and personal affairs.

Undoubtedly, you may feel overwhelmed and face uncertainty on the way forward for your business and personal interests. Here is how we can assist:


A comprehensive estate plan is crucial for giving effect to your will. The reality of the matter is that without an estate plan in place, it may not be possible to have your wishes carried out – regardless of your intentions. By ensuring you have an estate plan, you can mitigate any unforeseen consequences which might crop up in the future.

If you have any doubts about what the future might hold for your loved ones or simply feel that it is time to revise the state of your personal affairs, don’t hesitate to contact our offices. How can we help?

  • Let us examine and revise your current will or assist you in drawing up one for the first time;
  • Let us advise you on the options available to address issues such as the maintenance of your surviving spouse, the maintenance and educational needs of your children, the liquidity of your estate and estate duty implications;
  • Let us examine and revise your current estate plan or assist you in formulating a plan to suit your specific needs;
  • Let us advise and assist in the implementation of your estate plan through various instruments such as the establishment of trusts.


Under the current lockdown regulations, many sectors of the economy are under strain as certain business remain closed or operate at a limited capacity. A topic which is dreaded by all business owners alike is that of the retrenchment of employees. Unpleasant as it may be, some businesses are left with little to no other options and are forced to implement such measures to ensure the future sustainability of their business operations.

These measures must, however, be carried out fairly and in compliance with the procedures which are set out in the Labour Relations Act, No. 66 of 1995. An employer’s failure to carry out a retrenchment

process lawfully, could result in legal claims from aggrieved employees which may put even greater financial strain on the business.

If you are contemplating the dismissal of employees for operational reasons or if you are an employee who has been unfairly affected by a retrenchment process, our offices can assist you on the way forward. How can we help?

  • Let us advise you on the legal requirements for a fair retrenchment process and assist you in the implementation thereof with the necessary notices, employee consultations and severance packages;
  • Let us advise you on the fairness of your dismissal and assist in referring your claim to the appropriate Bargaining Council or the Commission for Conciliation Mediation and Arbitration, as the case may be;
  • Let us advise and assist you in all other labour related matters, including matters arising from the Basic Conditions of Employment, No. 75 of 1997, such as the regulation of work time, overtime pay and leave.


You may find yourself in a situation where either you or your contractual counterpart are unable to perform certain obligations as a result of the global pandemic and the ensuing lockdown regulations. You may also have heard murmurs of people using the phrase “force majeure” in an attempt to escape their contractual obligations.

A force majeure is an event which is commonly referred to as an Act of God. It is an unforeseen event which is out of the control of the contracting parties and which makes it objectively impossible for either of the parties to perform their obligations under the agreement. Whether or not such clause can be invoked will depend on the wording of the contract and will have to be applied on a case to case basis.

If you are unsure on whether or not you can escape the obligations of your agreement or if you are dealing with a defaulting party who refuses to adhere to contractual provisions, let our offices advise you accordingly. How can we help?

  • Let us advise you on the stipulations of your agreement and assist you in the enforcement thereof;
  • Let us revise and update your existing agreements in accordance with the most recent legislation and modern practices;
  • Let us meticulously draft agreements for your specific business or personal needs.

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)

Has your cabin given you the fever?

B2At the end of the national lockdown, many South Africans will have gotten to know their properties better than the architects who designed them. For some, this time will lead to ways they plan to improve their homes, for others, it will leave them desperately wanting to never see the same four walls again. But how do you enter the buying market again after the lockdown?

The answer is, with extra care. While buying property is never something to step into lightly, the chances of making an impulsive decision once you’ve tasted freedom again are a lot higher than they were before. The best advice would be to treat the experience as if nothing has changed. For the real estate market, this may even be somewhat true.

The real estate market has proven time and again that it is able to recover from even the worst crises, whether it be financial, social or medical. The reason for the market’s stability lies in its properties’ stability. While stock markets crash and abstract financial concepts such as inflation crumble during a pandemic, properties continue to stand unaffected. And while stock trading is quite low on the priority list during a worldwide pandemic, such as the COVID-19 outbreak, a priority that is still at the top is the need for housing. The real estate market, by nature, prevails.

So once the lockdown is lifted, don’t rush things. Use the same diligent consideration in every decision and make sure you invest accordingly.

That said, there is one way in which the lockdown should influence your purchase. Use the negative experiences and shortfalls of your current (or soon to be previous) home to help guide you towards what it is you truly need and want in a home. An experience that may have seemed negative will help you to create a clear vision of what your next home should be.

Once the lockdown has lifted, precautionary measures may still be put in place, especially regarding social distancing, nevermind people’s own fears of entering society again. The future introduction of the Electonic Deeds Registration System, which was promulgated in 2019, will further assist the restoration of the property market even as the scare of the pandemic continues to loom over the country even long after the lockdown has been lifted.

This electronic platform will allow property ownership to be transferred without having to set a foot inside a cramped government office, effectively continuing social distancing and creating a more efficient conveyancing process.

So keep calm and plan your property comeback accordingly.

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 effects of expropriation without compensation


For many whose homes are where their hearts are, the Draft Expropriation Bill, 2019, which seeks to legalise land expropriation without compensation, is proving to be of great concern, especially after it was released for comment on 21 December 2019.

The biggest concern is what effect the expropriation will have on existing property loans — a concern that the Minister of Agriculture, Land Reform and Rural Development, Thoko Didiza, confirmed has not been addressed. Didiza stated that the banks were not consulted to discuss what impact a lack of compensation would have on property loans and unpaid debt.

The amendment aims to expropriate land without compensation. But when the land that is being expropriated is still being paid off and the title does not yet fully belong to the landowner, the party that is not being compensated will be the bank. But due to a lack of detail, the Bill never states that the loan repayments to the bank will cease, it simply states that the new landowner will not have to pay them.

While a landowner cannot logically be expected to pay off land that no longer belongs to them, both Nedbank and SA Home Loans have confirmed that that would be the case. Property loans will have to be paid off as contractually agreed to, even when the land or property no longer belongs to the bond owner. If the bank is not compensated and stops receiving loan repayments, it will be forced to write off billions of Rands’ debt, resulting in utter devastation in the economy. If landowners are forced to pay for land and property that no longer belongs to them, it will undoubtedly result in civil unrest and, once again, devastation in the economy.

The problem with the Bill is the fact that it does not state any of this directly. The primary issue is not in what the Bill says, but in what it does not.

This is illustrated further in its definition of “land”, or rather it’s lack thereof. The proposed amendment does not confine the term “land” to agricultural land that is unoccupied and not utilised to its fullest potential. As it currently stands, the amendment will include urban and residential land and property, whether occupied or not, meaning every property or bond owner’s land/property may be expropriated while they will still be contractually bound to their loan down-payments.

Shockingly enough, Melanie Verwoerd has stated that the primary focus of the policy would, in fact, be urban land even though many have defended the policy, stating this would not be the case. The fact is that whether or not urban reform is the main intention or not, the current wording does make it a possibility.

The initial submission of comments ended on 31 January 2020. That period has been extended to 29 February 2020.

Now, we wait and see.

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 developer’s obligations to existing lessees when establishing a sectional title scheme


A developer who wishes to establish a sectional title scheme on a piece of land where there is an existing building, has certain statutory obligations should the building be wholly or partially let for residential purposes. This is not applicable to commercial leases. The Sectional Titles Act 95 of 1986, (the Act), as amended, requires the developer to submit a draft sectional plan to the Surveyor-General for approval. However, before the plans can be submitted, the developer has to comply with Section 4(3) of the Act.

This section imposes a duty of notification on the developer. Every lessee of the proposed sectional title scheme building has to receive a notice, in writing, by way of a letter delivered either personally or by registered post. This letter has to give notice of a meeting to be held at least 14 days after the delivery or dispatch of the letter, at the building or at a location within a reasonable distance of the building. It should convey the fact that the developer intends to be available to provide such particulars of the relevant scheme as they may reasonably require, and furthermore provide information regarding the lessees’ rights as contemplated in Section 10 of the Act. The developer is also required to provide a certificate of prescribed particulars relating to the scheme with the letter. The particulars are peremptory and briefly-stated, include the following:

  • The name of the scheme.
  • The description and extent of the land upon which the building is situated.
  • The full names and address of the developer.
  • The title deed number of the land.
  • The number and description of units in the scheme.
  • The number of garages and parking places provided for.
  • A land surveyor or engineer’s report in respect of the general physical condition of the building, specifically if there are any defects in the building.
  • A specified estimate of the annual expenditure in respect of the repair, upkeep, control, management and administration of the common property, payment of rates and taxes and other local authority charges, the charges for the supply of electricity, water, sanitation and other services, insurance premiums, all other costs recovered in respect of the common property which are normally recovered from the owners of units.

The developer has to confirm that the meeting has been held as provided for unless all the lessees have, in writing, stated that they are aware of their rights and they do not wish to purchase the proposed units which they occupy. Section 10 of the Act essentially provides a lessee with a right of pre-emption, restricting the developer to first offer the occupied unit to the lessee who was entitled to receive the notice letter. Should the developer act to the contrary and offer the lease to another party, that contract will be void.

The lessee has 90 days from the receipt of the offer to purchase in which to accept or refuse the offer. Should the offer be refused, the developer may not within a period of 180 days from the refusal by the lessee sell the unit to any other person for a lower price without first offering it to the lessee. The lessee then has 60 days in which to accept or refuse the new offer. During these periods (i.e. from the date of the notification letter and subsequent offers to purchase), the developer may not, subject to the lessee occupying the unit and complying with the conditions of the lease, require the lessee to vacate the premises or increase the rent payable (unless the lease agreement makes provision for such an increase during these periods).

The Act provides that a developer, or any person who has performed partially or fully in terms of a void contract, shall have a claim against the other party to the extent of such performances. The developer can, in addition, claim reasonable compensation for the use of the unit and claim compensation for any damages caused by the person thereto. The other party may claim interest on any payment made from date of payment, as well as reasonable compensation for any expenses incurred by him or any improvements subject to conditions and compensation for damages or loss which he would have been entitled to claim from the developer on the grounds of breach of contract, had the contract not been void.

Finally, the Act imposes criminal sanctions on a non-compliant developer, imposing either a fine of R2,000.00 or imprisonment not exceeding 12 months or to both.

It is clear that the legislature intends to protect and secure a lessee’s rights by imposing an obligation of notice of the proposed development and by granting an obligatory statutory right of pre-emption in favour of the lessee by the developer. The intention to protect a lessee’s common law rights, as found in the maxim “huur gaat voor koop”, is thus clear.

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)

Has your braai been approved?


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


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


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.

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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)