Monthly Archives: April 2019

Matrimonial property regimes

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

There are three types of matrimonial property regimes in South Africa. The three are marriage in community of property, marriage out of community of property with the inclusion of the accrual system and marriage out of community of property with the exclusion of the accrual system. When parties decide on either of the two latter, they must enter into a contractual agreement with one another before a notary public. It is important to understand what they all entail before one gets married.

Marriage in community of property is the so-called “default” regime, because all marriages are deemed to be in community of property if an Antenuptial Contract is not concluded before the marriage. This is also the most popular regime because it is the easiest one to conclude. When two parties get married in community of property, their estates will be joined together. Every asset and liability each party had before getting married and acquires during the marriage will become one estate and on dissolution of the marriage, the estate will be divided equally between the parties.

This system is based on the theory that each spouse, whether employed or at home running the household, contributes equally to the marriage and on dissolution of the marriage is entitled to share equally in the joint estate. It is important to note that when one enters this type of matrimonial regime, in some instances consent will be needed from the other party. One of the biggest disadvantages of this system is that if one party incurs debt, the debt will form part of the joint estate.

When one enters into a marriage out of community of property with the accrual system, it means that the parties entered into a contractual agreement with one another, which is known as an Antenuptial Contract. This contract must be entered into before a notary public and has to be registered at the Deeds Office. In this regime, the two estates of the spouses before the marriage remain separate. No consent will be needed from the other spouse in order to handle his/her own affairs. The accrual system will be applicable at the dissolution of the marriage or upon death, whichever may occur first.

What happens with the accrual is that whatever the parties acquired during the existence of the marriage, will be compared and the half of the difference in accrual will be owed by the estate which shows a larger accrual. On dissolution of a marriage out of community of property with the accrual system, inheritances and donations received by a spouse from a third party will not be included in the accrual.

In a marriage out of community of property without the accrual system, each party’s estate will remain separate. This system enables parties to control their own estate and affairs independently and on the dissolution of marriage, the parties will retain their own assets and liabilities. It is important to note that even if parties are married out of community of property excluding the accrual system, both parties will have to contribute to the household as a married couple – it is one of the duties that arises from marriage.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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

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

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

Installation of mechanisms to abstract groundwater:

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

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

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

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

Usage of the groundwater:

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

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

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

Reference List:

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

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)