Consumer Law

PROTECTING SOUTH AFRICA’S CONSUMERS

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A2_BThe Consumer Protection Act, No. 68 of 2008 (CPA) was signed by the President on 24 April 2009, coming into effect on 1 April 2011.

This vital piece of legislation has and will continue to change the manner in which businesses conduct themselves in South Africa.  The Act aims to, among other things, promote a fair, accessible and sustainable marketplace for consumer products and services. The Act also, importantly, aims to establish national norms and standards to ensure the protection of consumers. Further, its objective is to prohibit unfair marketing and business practices.

The CPA applies to the following:

  1. every transaction which occurs within the Republic of South Africa;
  2. promotion or supply of any goods and services occurring within the Republic; and
  3. goods or services which are supplied or performed within the Republic in terms of transactions mentioned in the Act.

The Act is not applicable to credit agreements, defined as such in terms of the National Credit Act.

A ‘consumer’ is defined as a person/s to whom goods or services are marketed, who have entered into transactions with suppliers, users of particular goods or recipients of services.

The Bill of Rights protects the rights of all of South Africa’s citizens, including those of consumers. The CPA further outlines the fundamental rights of consumers, of which all consumers should be aware. Every consumer of goods and services is entitled to the protection of their rights, regardless of the monetary value of a transaction or the significance of the product or service that a consumer buys, even if it is only a loaf of bread. These rights include:

  1. Right to Equality in the Consumer Market and Protection Against Discriminatory Marketing Practices;
  2. Right to Privacy;
  3. Right to Choose;
  4. Right to Disclosure of Information;
  5. Right to Fair and Responsible Marketing;
  6. Right to Fair and Honest Dealing;
  7. Right to Fair, Just and Reasonable Terms and Conditions;
  8. Right to Fair Value, Good Quality and Safety; and
  9. Right to Accountability by Suppliers.

 The National Consumer Commission (NCC) was established in terms of the Consumer Protection Act. The NCC is the chief regulator of consumer-business interactions in South Africa. It was created by the government with the backing of the Department of Trade and Industry (DTI) to safeguard the economic welfare of consumers. Consumers are imperative to the growth of the economy and therefore contribute to the national fiscus and to the development of the country.

The NCC’s mere existence in terms of the Consumer Protection Act, which it administers, is to promote a fair, accessible and sustainable marketplace for consumer products and services, establish norms and standards relating to consumer protection, to provide for improved standards of consumer information, prohibit unfair marketing and business practices, promote responsible consumer behaviour, and to promote a consistent legislative and enforcement framework relating to consumer transactions and agreements. This simply means that the NCC registers and assesses complaints, investigates alleged misconduct by businesses, refers individual complaints to Alternate Dispute Resolution (ADR) agencies for resolution, and represents consumers in the Consumer Tribunal amongst other things.

It is important to remember that every Consumer has rights; any infringement of these rights is an act of non-compliance with the provisions of the Consumer Protection Act.

A consumer may approach the NCC for guidance or assistance with a dispute that cannot be amicably resolved.

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).

Weddings

FOR BETTER OR FOR WORSE

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A1_BIn our March Newsletter edition my colleague reported on our firm’s participation in the Canal Walk Wedding Show. While I was manning the stand it came as no surprise that a lot of engaged couples were inquisitive as to why a law firm would be present at a wedding show. My personal favourite catch phrase to couples would then be: “Have you given any thought to the legal side of getting married?” and the answer to this would simply be no, accompanied by a nervous and/or confused giggle.

In the last couple of months I have been quite busy with clients who have not given thought about the legal side of getting married prior to saying “I do”, and I find it rather alarming how people, even in modern times, do not consider the legal reality of tying the proverbial knot.

According to South African law a married couple is deemed to be married in community of property unless they expressly enter into and register an Antenuptial contract prior to getting married.

Here is a simple example of a scenario I was faced with a while back: Mr A and Mrs B are both originally from Timbuktu and have worked and resided in South Africa for the last twenty years. The South African law is entirely foreign and unknown to both of them. About seven years ago the couple rushed off to the Department of Home Affairs to get married. In their minds, that was it! A year ago Mr A bought a house. The Conveyancing attorney then brought it to Mr A’s attention that he and Mrs B are in fact married in community of property. The attorney had to explain exactly what the legal consequences are of being married in community. Mr A and Mrs B are both medical practitioners and in the event of something happening to one of their practices, the financial consequences could be devastating to the other spouse’s practice. It was purely by chance that the couple found out that they are married in community of property and after the impact of a joint estate was explained to the couple, they were worried.  Is this what is meant by the part where you say “for better or for worse”?

There is good news and bad news. The good news is that it is possible in South Africa to apply to Court for the change of your matrimonial property system. The bad news is that this type of application is costly. It is therefore strongly advised that couples consider all the legal aspects of marriage before walking down the aisle. Consult with a legal professional regarding the different options available on how to get married and what the legal implications are of the different matrimonial property systems.

Section 21 of the Matrimonial Property Act, Act 88 of 1984, makes provision for the change of your matrimonial property system. According to the Act a husband and wife may jointly apply to court for leave to change the matrimonial property system which applies to their marriage. The court will only grant an order to this effect if the court is satisfied that there are sound reasons for the proposed change, sufficient notice of the proposed change has been given to all the creditors of the spouses and no other person will be prejudiced by the proposed change. Should the parties be successful with such court application, the court will authorize them to enter into a notarial contract by which their future matrimonial property system will be regulated on such conditions as the court may deem fit.

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).

Environment

AN INTERESTING MORNING ON INVASIVE ALIEN PLANTS

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A1_BOn the morning of 11 March 2016 our firm hosted a seminar on the topic of Invasive Alien Plants. We were honoured to have had outstanding experts in the environmental field as presenters. Our presenters included Elbi Bredenkamp, the director of Enviroworks, Louise Stafford, the Head of Green Jobs at the Environmental Resource Management Department of the City of Cape Town, Professor Johan Du Preez, the director of EnviroNiche Consulting and Livhuwani Nnzeru, an Environmental Officer at the Department of Environmental Affairs.

Invasive Alien Plants (IAPs) are widely considered as a major threat to biodiversity, human livelihoods and economic development. IAPs cost South Africa tens of billions of rands annually in lost agricultural productivity and resources spent on management.

Thus far, this information has not been made known sufficiently to estate agents, which may in part have contributed to many of them ignoring the new legislation. Knowledge of this legislation by all parties will hopefully help prevent non-compliance with the Act.

On 01 August 2014, the Minister of Environmental Affairs published the Alien and Invasive Species Regulations which came into effect on 1 October 2014. The Regulations were conceptualised in a bid to curb the negative effects of IAPs and other Alien Invasive Species (AISs). The Regulations call on land owners and sellers of land to assist the Department of Environmental Affairs to conserve our indigenous fauna and to foster sustainable use of our land.  The Regulations identify a total of 559 alien species, including 383 plant species as invasive which are divided into four different categories.

According to Regulation 29(3) of the National Environmental Management: Biodiversity Act 10 of 2004 (NEMBA), the seller of immovable property must, prior to the conclusion of the relevant sale agreement, notify the purchaser of that property in writing of the presence of listed invasive species on that property.

In practice, an estate agent can add value by guiding a seller in adhering to Regulation 29 of NEMBA. An estate agent should ask a seller of a property to declare in writing whether they are aware of any AISs on their land or if they hold a permit for species that require permits to be held. If, following an enquiry of an estate agent, it is established that AISs have been found on the land for sale, or that the seller holds a permit, then a copy of this confirmation must be handed to a prospective purchaser. The purchaser’s offer should include an acknowledgement by the purchaser that he has been advised of the invasive species on the property.   Property sale agreements subsequent to 1 October 2014 should incorporate a clause in terms of which the purchaser acknowledges that he has acquainted himself as to the nature of the property he is purchasing, and that he accepts the property as such, including the vegetation present on the property.  The declaration by the seller resulting from an inquiry of an estate agent could well assist in adhering to Regulation 29 and thus avoid the heavy punishment imposed by the Regulations.

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).

Property

IMPLICATIONS OF ESTATE DUTY

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A4_BEstate duty is charged on the dutiable value of the estate in terms of the Estate Duty Act. The general rule is that if the taxpayer is ordinarily resident in South Africa at the time of death, all of his/her assets (including deemed property), wherever they are situated, will be included in the gross value of his/her estate for the determination of duty payable thereon.

The current estate duty rate is 20% of the dutiable value of the estate. Foreigners/non-residents also pay estate duty on their South African property.

To minimise the effects of estate duty you need to understand the calculation thereof. The following provisions apply in determining your liability:

  1. Which property is to be included.
  2. Which property constitutes “deemed property”.
  3. Allowable deductions: the possible deductions that are allowed when calculating estate duty.

Property includes all property, or any right to property, including immovable or movable, corporeal or incorporeal – registered in the deceased’s name at the time of his/her death. It also includes certain types of annuities, and options to purchase land or shares, goodwill, and intellectual property.

Deemed property

  1. Insurance policies
  1. Includes proceeds of domestic insurance policies (payable in South Africa in South African currency [ZAR]), taken out on the life of the deceased, irrespective of who the owner (beneficiary) is.
  2. The proceeds of such a policy are subject to estate duty, however this can be reduced by the amount of the premiums, plus interest at 6% per annum, to the extent that the premiums were paid by a third person (the beneficiary) entitled to the proceeds of the policy. Premiums paid by the deceased himself/herself are not deductible from the proceeds for estate duty purposes.
  3. If the proceeds of a policy are payable to the surviving spouse or a child of the deceased in terms of a properly registered antenuptial contract (i.e. registered with the Deeds Office) the policy will be totally exempt from estate duty.
  4. Where a policy is taken out on each other’s lives by business partners, and certain criteria are met, the proceeds are exempt from estate duty.
  1. Donations at date of death

Donations where the donee will not benefit until the death of the donor and where the donation only materialises if the donor dies, are not subject to donations tax. These have to be included as an asset in the deceased estate and are subject to estate duty.

  1. Claims in terms of the Matrimonial Property Act (accrual claim)

An accrual claim that the estate of a deceased has against the surviving spouse is property deemed to be property in the deceased estate.

  1. Property that the deceased was competent to dispose of immediately prior to his/her death (Section 3(3)(d) of the Estate Duty Act), like donating an asset to a trust, may be included as deemed property.

Deductions

Some of the most important allowable deductions are:

  1. The cost of funeral, tombstone and deathbed expenses.
  2. Debts due at date of death to persons who have their ordinary residence in South Africa.
  3. The extent to which these debts are to be settled from property included in the estate. This includes the deceased’s income tax liability (which includes capital gains tax) for the period up to the date of death.
  4. Foreign assets and rights:
  5. The general rule is that foreign assets and rights of a South African resident, wherever situated, are included in his/her estate as assets.
  6. However, the value thereof can be deducted for estate duty purposes where such foreign property was acquired before the deceased became ordinarily resident in South Africa for the first time, or was acquired by way of donation or inheritance from a non-resident, after the donee became ordinarily resident in South Africa for the first time (provided that the donor or testator was not ordinarily resident in South Africa at the time of the donation or death). The amount of any profits or proceeds of any such property is also deductible.
  1. Debts and liabilities due to non-residents:
  2. Debts and liabilities due to non-residents are deductible but only to the extent that such debts exceed the value of the deceased’s assets situated outside South Africa which have not been included in the dutiable estate.
  1. Bequests to certain public benefit organisations:
  1. Where property is bequeathed to a public benefit organisation or public welfare organisation which is exempt from income tax, or to the State or any local authority within South Africa, the value of such property will be able to be deducted for estate duty purposes.
  1. Property accruing to a surviving spouse [Section 4(q)]:
  1. This includes that much of the value of any property included in the estate that has not already been allowed as a deduction and accrues to a surviving spouse.
  2. Note that proceeds of a policy payable to the surviving spouse are required to be included in the estate for estate duty purposes (as deemed property), but that this is deductible in terms of Section 4(q).
  3. Section 4(q) deductions will not be granted where the property inherited is subject to a bequest price.
  4. Section 4(q) deductions will not be granted where the bequest is to a trust established by the deceased for the benefit of the surviving spouse, if the trustee(s) has/have discretion to allocate such property or any income out of it to any person other than the surviving spouse (a discretionary trust). Where the trustee(s) has/have no discretion as regards both the income and capital of the trust, the Section 4(q) deduction may be granted (a vested trust).

Portable R3.5 million deduction between spouses

The Act allows for the R3.5 million deduction from estate duty to roll over from the deceased to a surviving spouse so that the surviving spouse can use a R7 million deduction amount on his/her death.

Life assurance for estate duty

Estate duty will also normally be leviable on these assurance proceeds.

Source: Moore Stephens’ Estate Planning Guide.

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)

Trusts

HOW TO REGISTER AN INTER-VIVOS TRUST

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A3_BIn South Africa there are mainly two types of trusts that are registered. An inter-vivos trust can be created between living persons, and a testamentary trust is created in the will of a deceased.

An inter-vivos trust is registered at the office of the Master of the High Court in whose area of jurisdiction the main assets of the trust are or will be held.

The first step is to draw up a valid trust deed. A trust deed is a contract between the founder of the trust and the trustees, for the benefit of a third party or parties, known as the beneficiaries. In terms of the trust deed, the founder agrees to transfer certain assets to the trustees of the trust for the benefit of the beneficiaries. The trust deed must stipulate who the first trustees of the trust are going to be. In many instances the Master will insist on at least one independent trustee to be appointed. This means that the independent trustee will receive no benefit from the trust assets apart from the specified and reasonable trustee remuneration. The beneficiaries must be specified in the trust deed, as well as their entitlement to either the capital of the trust, the income of the trust assets, or both.

A trust deed is a valid contract and therefore subject to all applicable laws. Furthermore, there are significant tax, financial and other consequences of being involved in a trust, whether as trustee, founder or beneficiaries. Therefore it is imperative to seek professional advice when drawing up this deed.

The duly signed and witnessed trust deed must be submitted to the Master of the High Court, together with the completed and signed Acceptance of Trusteeship for all trustees and certified copies of their identity documents. This Acceptance of Trusteeship states the basic information of the trustees that the Master requires, as well as certain declarations made by the trustee. If the Master requires the trustees to furnish security, proof of the bond of security by those trustees must be provided to the Master when the trust is registered. Form JM21 sets out certain requirements and information that must be supplied to the Master together with the other documents set out in this paragraph. This information include details on the professions or business occupation of the trustees to be registered, any previous experience that these trustees might have in the administration of trusts, the name and branch of the bank where a bank account will be opened for the trust, and so forth. An original undertaking by an auditor or accounting officer must accompany form JM21. Lastly, proof of the payment of the prescribed fee of R100 must be submitted.

On receipt of the above documents in accordance with all the requirements, the Master will issue a Letter of Authority to the trustees. The trustees may then act on behalf of the trust.

Any amendments to the original trust deed must be placed on record with the Master of the High Court where the original trust deed is on record.

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)

Marriage

GETTING MARRIED? LET SCHNETLER’S GUIDE YOU IN CHOOSING A MARITAL REGIME TO SUIT YOUR REQUIREMENTS

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A2_BIn our last month’s newsletter, we provided some insight into marriages which are classed as “In Community of Property”. In this month’s newsletter, we shall address “Out of Community of Property” marriages and the impact of the “accrual system”.

Should you wish to read last month’s article, you may find it on our website under the “News” tab, titled “Let Schnetler’s help you to tie the knot”.

ANTENUPTIAL CONTRACTS

An Antenuptial Contract is a marriage contract which is entered into between two persons who are intending to be married to one another. In this contract, the terms and conditions which will govern the marriage will be set out, more particularly the matrimonial property system which is to apply to their marriage.

There are two options of such Antenuptial Contract:

  1. excluding the accrual system
  2. including the accrual system

OUT OF COMMUNITY OF PROPERTY WITH THE ACCRUAL SYSTEM

The accrual system is, in theory, the best of all matrimonial property systems. During the subsistence of the marriage, the spouses have separate estates. The accrual of the estates of each spouse is the amount by which the nett value of the estate at dissolution of the marriage (either by death or divorce) exceeds the nett value of the estate at the commencement of the marriage. Hence, the nett value of the estate at date of marriage is deducted from the nett value of the estate at date of dissolution thereof. If the result is zero, then there has been no accrual.

There are, however, certain items which are not included in the value of the spouses’ estates at date of dissolution of the marriage:

  1. Monies received by a spouse by way of damages for non-patrimonial loss e.g. payment received in a civil litigation for defamation of character.
  1. Any asset which the spouse has excluded from the accrual in the Antenuptial Contract, as well as any asset which has been acquired by virtue of such excluded asset e.g. property which is sold with a new property being bought with these proceeds.
  1. Inheritances, legacies and donations which accrued to the spouse during the marriage, as well as any asset acquired by virtue of such inheritance, legacy or donation.
  1. Donations between the spouses.

OUT OF COMMUNITY OF PROPERTY WITHOUT THE ACCRUAL SYSTEM

The exclusion of the accrual system can be explained as follows – each spouse has a separate estate from the other. Thus, at termination of the marriage, each spouse retains their own estates, with there being no division whatsoever.

The main disadvantage of being married without the accrual system, is that no matter how long the marriage has endured, and how much one spouse has contributed to the other spouse’s success, he/she does not have a right to share in that person’s gains.

Should you wish to discuss the Marital Regime options further, or should you wish to have an Antenuptial Contract drafted, kindly contact one of our Notaries who will be pleased to help you reach the best decision for your future 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).

Claims

YOUR DUTY TO DISCLOSE EVEN IF YOU DO NOT CLAIM FROM YOUR INSURER

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A4BInsurance to most people is a grudge purchase. We buy insurance and pay our monthly premiums and then forget about it until we want to claim. We are sold policies where, if we do not claim, we get a later benefit. Ever wonder about losses that you suffer and do not claim for and what effect it has on your policy?

In the recent unreported judgment in Sherwin Jerrier v Outsurance Insurance Company Limited the Pietermaritzburg High Court was faced with such a question. Mr Jerrier claimed for damages to his car caused by an accident that he was involved in on 8 January 2010.

The insured (Mr Jerrier) took out a policy in December 2008. He did not report a loss that he suffered in April 2009, after inception of his policy, to his insurer. The damage to his vehicle amounted to over R200 000 and the incident attracted further third party liability.

The specific policy as most, if not all policies do, provided that “you need to inform us immediately of any changes to your circumstances that may influence whether we give you cover, the conditions of cover or premium we charge. This includes incidents for which you do not want to claim but which may result in a claim in the future.”

As with most of our household policies, these are monthly policies, and we continuously need to make disclosure to the insurer of things such as losses or damage, moving to a new house, et cetera. The court in this instance found that the reasonable man would have concluded that the previous losses would, from a claims history perspective and also from a moral risk perspective, be indicative of a change in his circumstances. The Court found that the insurer was correct in not accepting liability for the loss suffered in January 2010.

In short, even if you do not claim, let your insurer rather know of a loss or a potential claim. Anything that may be deemed to influence the risk or would indicate a change in circumstances, such as moving to a new property, needs to be disclosed to the insurer. It is not unreasonable to expect this of the insured.

This article is a general information sheet and should not be used or relied upon as 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 financial adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Family Law

WHO IS TO BLAME?

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A3BEmily and Nathan were a happily married couple in their early thirties with two minor children. Emily was a stay at home mom and Nathan was the breadwinner of the family. The family decided to take a vacation in Sun City, which ended tragically when Nathan was fatally injured on a Valley of the Waves ride. Who was to take care of the family now that Nathan was no longer there and who was to pay the price for the family holiday that ended in a tragic loss?

If the question of negligence is hanging in the air then the obvious word to pop into one’s mind would be that of delict. In Kruger v Coetzee 1966 (2) SA 428 A 430E-G the formulation for negligence was established by Holmes in two steps:

(a) a diligens paterfamilias in the position of the defendant –

(i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and

(ii) would take reasonable steps to guard against such occurrence; and

(b) the defendant failed to take such steps.

In the case of Za v Smith (20134/2014) [2015] ZASCA 75 (27 May 2015) the father and breadwinner of the family died in a tragic accident while on vacation at a mountain resort close to Ceres, Western Cape, after falling off a sheer precipice (a steep rock or cliff). The wife of the deceased took the matter to the Supreme Court of Appeal, who considered three elements, namely wrongfulness, negligence and causation.

The background facts were taken into account, namely the fact that the park was used for recreational purposes for the public upon paying an entry fee. Furthermore, the 150 metres gorge drop where the deceased fell to his death was not visible, especially in snowy weather, nor were there any signs of warning.

Wrongfulness:

The court a quo did not find the Respondents to be wrongful as they did not have the duty to warn guests of the danger that was blatantly apparent to them. However, in the abovementioned case it was reiterated that ”the test for wrongfulness is whether it would be reasonable to have expected the defendant to take positive measures, while the test for negligence is whether the reasonable person would have taken such positive measures; confusion between the two elements is almost inevitable. It would obviously be reasonable to expect of the defendant to do what the reasonable person would have done. The result is that conduct which is found to be negligent would inevitably also be wrongful and visa versa.”[1]

If the abovementioned case is taken into consideration then Emily would most likely be successful in her application for compensation for herself, as well as in her capacity as mother of the two minor children, if it is found that Sun City Holiday Resort was negligent and wrongful and had causation.

[1] Za v Smith (20134/2014) [2015] ZASCA 75 (27 May 2015)

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)

Law

SOUTH AFRICAN ATTORNEYS NOW PAINTED WITH THE SAME BRUSH

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A2

As a young attorney I am often confronted with the question whether there is a body that governs the legal profession or whether we, as the peacemakers of a nation, have carte blanche to act as we wish, not abiding to any rules or regulations. Are we free to do as we please?  Strangely enough I do not feel offended by questions of this nature, and to be blatantly honest, I can comprehend why such a question may be asked. I once read a quote by Mario Puzo that is self-explanatory: “A lawyer with his briefcase can steal more than a hundred men with guns.” 

In South Africa there are four statutory law societies in place:  The Cape Law Society, The Law Society of the Northern Provinces, The KwaZulu-Natal Law Society and The Free State Law Society. Every attorney in our country is a member of the law society in which he / she is practising law.  Each of these law societies had their own separate sets of rules which applied to their members.  This worked all good and well until in more recent times law firms started to branch out to different parts of the country.

National law firms normally have offices and branches in various provinces and different sets of rules would apply to each different branch of the same firm – this created chaos and led to some untenable situations.

Little did we know back in 2009, when discussions on the nationalising of rules for attorneys initially kicked-off, that all South African lawyers will be painted with the same brush seven years later!

The unification of the four sets of rules was a long and complex process. During 2014 attorneys had to approve the new standardised rules at annual general meetings of the provincial law societies, where after the Judges President and Chief Justice had to give the proverbial thumbs up. These discussions and negotiations lasted nearly a decade and after the long wait, the National Rules for the Attorneys’ Profession finally came into operation on 1 March 2016.

The Rules consist of eight parts and 55 rules in total. Some of these rules include inter alia rules regarding the general practice of attorneys, accounting rules for law firms, rules on the conduct of attorneys and the process of disciplinary proceedings against attorneys whose conduct is unprofessional and dishonourable.

So, the simple answer to the popular question I am often asked is, yes we do! As with many other professions legal practitioners are also bound to their own set of rules.

Law is an imperfect profession in which success can rarely be achieved without some sacrifice of principle. Thus all practicing lawyers — and most others in the profession — will necessarily be imperfect, especially in the eyes of young idealists. There is no perfect justice, just as there is no absolute in ethics. But there is perfect injustice, and we know it when we see it. ALAN DERSHOWITZ, Letters to a Young Lawyer

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).

Marriage

LET SCHNETLER’S HELP YOU TO TIE THE KNOT

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A1BSchnetler’s Inc participated in the Canal Walk Wedding Show which was held over the weekend of 19 – 21 February 2016. The question which we posed to the betrothed couples in attendance at the wedding show was, “Have you thought about the legal aspects of getting married?” The responses which we received were varied; however, many of the couples were genuinely oblivious to the reason as to why a law firm would be required when planning their fairy tale weddings.

Upon explaining to these couples the purpose of our presence at the wedding show, the scales fell from their eyes and they comprehended the significance of having an Antenuptial Contract drafted – a document which would permanently govern their marriage, unlike the flowers, food and drinks which would aid in making their wedding one to remember, but would also quickly wilt, be consumed or thrown away.

In South African law, there are various marital regimes which may govern one’s marriage. The three matrimonial systems which intending spouses may choose between are:

  1. In Community of Property
  1. Out of Community of Property with the Accrual System
  1. Out of Community of Property without the Accrual System

For the sake of conciseness, I shall only be addressing the first of the aforementioned matrimonial systems in this article. Please read next month’s newsletter to become educated on Antenuptial Contracts and the consequences of the inclusion and exclusion of the accrual system.

IN COMMUNITY OF PROPERTY

A marriage automatically creates community of property and profit and loss in the absence of an Antenuptial Contract. Every marriage is presumed to be in community of property unless the contrary is proven i.e. the existence of an Antenuptial Contract. In such a marriage, all assets of both spouses are merged into a joint estate in which both spouses hold equal, undivided shares. Both parties have equal powers in the administration of the joint estate and are also accountable to the other spouse for any transactions with the estate’s assets.

There are, however, certain assets which are excluded from the joint estate:

  • Debts or bequests by third parties with a specific exclusion clause;
  • Damages sustained by one of the spouses for non-patrimonial loss i.e. pain and suffering;
  • Certain insurance policies may be excluded from the community;
  • Betrothal and wedding gifts.

A significant disadvantage of this marital regime is that should one of the parties be sequestrated, both spouses will automatically be declared insolvent. Another disadvantage, which has proven to be a limitation, is that certain transactions require both spouses’ consent in writing i.e. the purchasing and selling of property.

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).