COMMON LAW MARRIAGE IN SOUTH AFRICA

A4_bIn South African law there is no such thing as a common law marriage. People simply believe that living together with another person for a continuous period of time establishes legal rights and duties between them.

This is a common misunderstanding especially with young adults.

The only way to be protected in our law is to enter into a universal partnership agreement. Such an agreement clarifies the rights and duties of the partners. The agreement will determine what would happen to property and assets of the couple if they should decide to separate. The agreement is, however, not enforceable in so far as third parties are concerned. Only a valid marriage is enforceable against third parties. It is important to note that partners can sometimes be jointly and severally liable if they acted within the scope of the partnership. An agreement such as this will be legally binding as long as it contains no provisions that are immoral or illegal. If there is no agreement on the dissolution of a universal partnership agreement, a party would only be entitled to retain those assets which he or she has purchased and owns and further would be entitled to share in the assets proportionately in terms of the contribution which they have made to the partnership.

To prove the existence of such a partnership it must be shown that:

  • The aim of the partnership was to make profit.
  • Both parties must have contributed to the enterprise.
  • The partnership must operate to benefit both parties.
  • The contract between the parties must be legitimate.
  • There must be valid consent.
  • There is an intention to create a legally binding agreement.

Where there is no express agreement, a tacit agreement may be proved if it is found that it is more probable than not that such an agreement had been reached between the parties at the time of cohabitation.

Because the existence of a universal partnership is somewhat difficult to prove, and it may not be a claim that you wish to have to make or defend, it is advisable to consider entering into a contract that spells out how property should be dealt with on termination of the relationship by death or otherwise. Such a contract would provide some certainty for cohabitees regarding the division of assets and settlements of liability on termination of the relationship.

Some of the consequences of the absence of a legal ground between parties in such relationships are:

  • No exemption from donations tax in respect of donations between them.
  • Cohabitees do not benefit from the laws relating to the exemption from estate duty of bequests to spouses.
  • There is no reciprocal obligation of maintenance.
  • Cohabitee is not a recognised claimant if his/her partner dies intestate.
  • There is no right to property or assets that belong to cohabitee.
  • There is no reciprocal duty to contribute to household necessities.

The Domestic Partnerships Bill of 2008 is still in its formulation stage and it remains to be seen how it is to be implemented. In the current constitutional dispensation it is unlikely that a partner will be left in despair, taking into account the Domestic Partnerships Bill.

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 SEQUESTRATION PROCESS

A3BThe sequestration process involves a Court Application.The Applicant in the Application is either yourself for your own sequestration (voluntary surrender) or the Applicant is one of your creditors (either a friendly or aggressive creditor).

The applications are similar and although there are some different requirements for each, the result is the same.

Voluntary surrender

Voluntary surrender refers to the process whereby a natural person can make an application to place him/herself under an order for sequestration.

A person is insolvent if his/her liabilities exceed his/her assets. In such a case he/she can apply for voluntary surrender of their estate. Anybody can apply for voluntary surrender at any stage as soon as he/she is insolvent, even if they have been or are under debt counselling, for example.

The person who wants to sequestrate him/herself, will depose to an Affidavit which explains why he/she claims he/she is insolvent. This will be drafted by the Attorneys who will bring the application on behalf of the Applicant. As soon as the Affidavit is signed, the application will be issued at Court and a Court date is assigned. The Applicant does not have to appear in Court as the Advocate appears on his/her behalf.

If the Court grants a provisional order on the first Court date, the matter will be postponed for approximately one month. During that month notice will be given to all creditors, and if on the return date no-one has opposed the application, the order will be finalised and the Applicant’s estate will be sequestrated.

Compulsory sequestration

Applications are also made by way of a Court application; however, in this case the Applicant will be a creditor of the debtor. If it is a creditor with whom the debtor does not have a good relationship, we refer to it as an “aggressive” sequestration (for example the bank).

However, the banks seldom bring sequestration applications against the average debtor as it is much cheaper and easier for them to follow the collection procedures: attach property and sell it and/or attach your salary.

If it is a creditor with whom the debtor has a good relationship, we refer to it as a “friendly” sequestration (for example a family member or a friend to whom you owe money).

Aggressive (“unfriendly”) sequestration

Where an unfriendly creditor brings a sequestration application against a debtor, we refer to it as an aggressive sequestration. It is also a forced sequestration as opposed to voluntary surrender.

The creditor who brings the application must have established a claim against the debtor; in other words, the debtor must indeed owe the creditor money. A second requirement is that there must also be a benefit to creditors. Thirdly, the debtor must have committed an act of insolvency.

If a creditor brings an aggressive application against a debtor, the debtor can oppose such an application if he/she is not insolvent or if there is another reason why the order should not be granted.

Process for “unfriendly” and “friendly” sequestrations

The process for both these applications is the same and it is only the Applicant that differs.

As with voluntary surrender, an Affidavit will be given by the creditor to explain why he avows that the debtor owes him/her money. He will attach proof thereof (contract/statement) and also proof that the debtor has committed an act of insolvency (where the debtor has written a letter to say that he/she cannot pay the debt). In both instances the Applicant must prove that there will be a benefit to creditors to have the debtor sequestrated.

Once the Affidavit has been signed, the necessary documentation will be drafted, issued at Court and a Court date assigned. As soon as this is done, the documents will be served on the debtor, employees of the debtor, Master of the High Court and the South African Revenue Services by the Sheriff. The provisional order should also be given to all creditors above R5 000.00 by way of registered post. If the application is not opposed, a final order will be made for the sequestration of the debtor/Applicant.

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)

SELECTIVE ENFORCEMENT OF LEGISLATION BY THE BUREAUCRACY – IS IT PERMISSIBLE?

A2_bWe live in a country where a government agency is frequently, due to inadequate resources, unable to enforce the legislation controlled by it, against those contravening such legislation.

Consequently, many businesses and persons who operate outside the law more or less with impunity. Unlicensed businesses continue to thrive, unlicensed taxi vehicles patrol the streets, rates and taxes are not collected. In short, many transgressors of the law go unpunished, because law enforcement agencies are under-resourced.

So where does that leave the people (sometimes few in number) who are prosecuted, fined or otherwise punished when the bureaucrats who catch up with them? Is it not unfair to enforce the law against some, but not others?

This interesting conundrum faced the Gauteng High Court in the matter of Quick Drink Company (Pty) Ltd & Others v Medicine Control Council & Others. The Medicine Control Council had seized a large consignment of electronic cigarettes imported by Quick Drink, on the grounds that they contained nicotine, a scheduled medicine. The evidence before the court established that electronic cigarettes were widely available in South Africa, and that many other importers and distributors of electronic cigarettes went unpunished. The Medicine Control Council averred that it faced capacity constraints that prevented it from going after others.

The court held that selective enforcement of legislation is constitutional only if it were rational or rationally connected to a legitimate government purpose. If the target of selective enforcement shows, in court proceedings, that it was being treated differently from other identical offenders, the discrimination would be unfair in the absence of proof of rational connection between the targeting and some legitimate government purpose. The failure by the Medical Control Council to explain why it was Quick Drink that was targeted, and not other offenders, was in the court’s view of decisive importance. In giving judgment, the court said the following: “Where resources are limited it may be unreasonable to expect every potential defaulter to face the might of the law. Under such circumstances the law may then be enforced in an unequal and possibly haphazard manner and I cannot imagine that it would be open to someone to challenge such an act of enforcement on that basis alone… It would, however, be a different matter when, beyond being unequally enforced, the law is enforced in a selective manner and where no rational basis for the selectivity exists. Selectivity must be an option open to law-enforcement agencies. There may be many viable reasons why a law is selectively enforced – the selection may enhance the efficacy of the system or the selection may be justified by the availability of resources. Accordingly, even though the concept of selective enforcement may appear to be at odds with the values of equality, there may well be cogent justification for it and it would appear to me that, given that rationality is a part of the rule of law, selective enforcement would pass constitutional muster when it is rational. If this were not the case it would be open to law-enforcement agencies, who carry both enormous power as well as responsibility in applying and enforcing the law, to do so irrationally and to the prejudice of those affected. In this case it would have been known to the first respondent [the Medicine Control Council] that there were many importers, manufacturers, wholesalers and distributors of e-cigarettes in the South African market, most of whom were already doing business in the public retail space. If those businesses represent a group, then it is indeed inexplicable why enforcement was chosen in respect of only one business within that group.”

The court accordingly set aside the seizure of the consignment of e-cigarettes from Quick Drink, pending the outcome of further litigation in which the final review and setting aside of the seizure would be decided.

The case perhaps provides useful grounds upon which businesses and individuals can defend themselves against unequal and irrational treatment by the bureaucracy.

Compiled by: Annerine du Plessis

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)

SCHNETLER’S GIVES BACK

A1B“Let us sacrifice our today so that our children can have a better tomorrow.”– A. P. J. Abdul Kalam

The Santa Shoebox Project is an initiative of the Kidz2Kidz Trust. The Santa Shoebox Project originated in Cape Town and has grown in leaps and bounds, with the number of Santa Shoeboxes growing from a humble 180 boxes in 2006 to an astounding 109 930 in 2014. The boxes are distributed to more than 1000 recipient facilities.

This year the directors of Schnetler’s vowed to match the number of boxes pledged by the firm’s team. In total, 36 boxes were pledged by us at Schnetler’s. The boxes consisted of educational supplies, toiletries, toys, clothing and the most important item to every child out there – sweets! The boxes were creatively painted and decorated to match the Christmas theme.

We are proud to be part of this fantastic initiative. We truly hope that our spirit of giving is infectious and that all of you give back to your community over the festive season.

Compiled by: Annerine du Plessis