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F.A.Q

1. Covid-19

29  Time and place for and presence of parties and witnesses at solemnization of marriage and validation of certain marriages

(2) A marriage officer shall solemnize any marriage in a church or other building used for religious service, or in a public office or private dwelling-house, with open doors and in the presence of the parties themselves and at least two competent witnesses, but the foregoing provisions of this subsection shall not be construed as prohibiting a marriage officer from solemnizing a marriage in any place other than a place mentioned therein if the marriage must be solemnized in such other place by reason of the serious or longstanding illness of, or serious bodily injury to, one or both of the parties.

(4) No person shall under the provisions of this Act be capable of contracting a valid marriage through any other person acting as his representative.

29A  Registration of marriages

(1) The marriage officer solemnizing any marriage, the parties thereto and two competent witnesses shall sign the marriage register concerned immediately after such marriage has been solemnized.

When reading and interpreting the above section of the Marriage Act, it is clear that an authorized marriage officer, the parties getting married, as well as two witnesses will have to be physically present in order to conclude a valid marriage.

Furthermore, the marriage register will have to be signed immediately after solemnizing the marriage, once again confirming that the physical presence of the marriage officer, the parties getting married and the two witnesses are required.

Once the marriage register is signed, it is the obligation of the marriage officer to attend the offices of the Department of Home Affairs to ensure that the marriage is registered and that the details are recorded in the National Population Register.

Usually the marriage officers have three working days to register the marriage at the Department of Home Affairs. In light of the fact that Home Affairs are currently not registering marriages during the lockdown period, we foresee that they will make exceptions to the “three-day rule” in order to accommodate those couples who got married a few days before the lockdown.

The physical presence of the parties, the witnesses and the marriage officer will hardly be possible during the lockdown period and therefore a valid marriage can unfortunately not be concluded during the lockdown period in a lawful manner.

Should the parties manage to arrange with a marriage officer and the necessary witnesses to be present at the solemnization, and should they manage to all sign the register, a valid marriage will be concluded. We can however not confirm whether the Department of Home Affairs will condone the late registration of the marriage and advise clients not to take such a risk.

Furthermore, should it come to light that the marriage was concluded in the presence of the witnesses and the marriage officer during the lockdown period, all parties concerned risk facing criminal charges for non-compliance with the lockdown regulations.  Even after the lockdown period when the marriage officer attempts to register the marriage at the Department of Home Affairs, the officials might report the marriage proceedings and criminal charges may be instituted.

What are the consequences of an invalid marriage?

A marriage that is not concluded in accordance with the relevant legislation will be annulled. The marriage will be void ab initio (as if it never existed).

The annulled marriage will have no effect on the status of the parties. The status of the parties will thus be single/ widowed/divorced instead of married.

When a marriage is void there will be no matrimonial property system applicable to parties’ relationship. There will not be a reciprocal duty to support between the parties and the children born out of this marriage relationship will be born out of wedlock.

Did you recently find yourself in a position where your tenant has cancelled his lease agreement prior to the lockdown and agreed to vacate within the lockdown period? Or is your tenant in arrears and you want to evict him/her? Many questions arise as a result of this scenario which amongst others include two main questions:

1. Can I vacate the house and move during lockdown?
2. Can I evict tenants who failed to pay rent during the lockdown period?

The point of departure would first be to interpret the lockdown regulations and more specifically regulation 11B(1)(a)(i) which provides that, during the lockdown period every person is confined to his/her place of residence, unless movement is allowed for purposes of the regulations. In light of the clear position, the regulations will have to be interpreted restrictively – if there is any doubt, it would be safer to find yourself on the right side of the law.

Various of the definitions in the lockdown regulations need to be kept in mind for the rest of this discussion:

a) “Lockdown” means the restriction of movement of persons during the lockdown period as defined above;

b) “Lockdown period” means the period from 23h59 on 26 March 2020 until 23h59 on 16 April 2020;

b) “Movement” means entering or leaving a place of residence.

c) “Essential goods” means the following:
• Food, which include food products, but excludes alcoholic beverages, and further includes animal food, chemicals, packaging and the like used in the production of food;

• Cleaning and hygiene products, which include toilet paper, sanitary pads, condoms, hand sanitiser, disinfectants, soap, alcohol for industrial use, household cleaning products, and personal protective equipment;

• Medical products, which include medical and hospital supplies, equipment and personal protective equipment and chemicals, packaging and the like used in the production of these products;

• Fuel, which includes coal and gas; and

• Basic goods, which include airtime and electricity. It is important to note that basic goods have not been defined, and no definition could be seen in any other legislation or case law. A general definition would include those items used to satisfy human requirements that are needed in order to survive.

d) Under the lockdown regulations, a person will only be allowed to leave his/her place of residence, strictly in order to:
• Perform an essential service;
• Obtain an essential good or service;
• Collect a social grant;
• Seek emergency, life-saving, or chronic medical attention.

In a recent judgment in the Mpumalanga High Court, the court dismissed the Applicant’s application to exempt him from the travel restrictions contained in the COVID-19 Regulations. The applicant sought an order to exempt him from the travel restrictions to visit his mother, who resides in another province. The applicant wanted to assist his mother with the funeral arrangements of his late grandfather.

It can reasonably be concluded that all tenants who were due to move at the end of March will now need to remain in place at least until after the nationwide lockdown, which currently ends at midnight on 16 April 2020.

On 24 March 2020, Chief Justice Mogoeng Mogoeng in terms of section 8(3) of the Superior Courts Act, 2013 delegated his powers to all Heads of Court to issue such Directives, as would enable access to court in relation to the following matters:

• Urgent matters;
• Bail applications;
• Maintenance and Domestic Violence matters; and
• Cases involving children

In light of the above, the landlord should be advised of the following:

a) It is doubtful whether the landlord will be able to convince a court that and eviction application for arear rental is urgent. Should the landlord approach a court on an urgent basis, the landlord would probably run the risk of obtaining an adverse cost order against him/her.

b) In the event that the landlord or tenant provided the other party with notice to vacate the premises, it is best to wait out the lockdown period before taking any legal action against the tenant for either eviction proceedings or claiming for damages as a result of arrear rental.

However, the landlord can still electronically send a letter of demand or cancellation notice to the tenant during the lockdown period. Legal 

proceedings following such notice would however only commence after the lockdown has been lifted.

 
 
 
 
 
 
 

On 23 March 2020 the President of the RSA, in response to the global pandemic COVID-19,announced a 21-day lockdown (“the Lockdown”), which commenced on 26 March 2020 at 23:59
pm.

The Lock-down entails that every person, subject to certain exceptions, is confined to his or her place of residence. The inevitable effect of the Lock-down is that, where a party’s physical presence is required to allow for performance in terms of a contract, such a party will be unable to perform without contravening the Lock-down regulations.

The purpose of this opinion is, therefore, to provide legal certainty for those cases where the contract is silent on the consequences of an impossibility to perform. We have noted that a lot of questions relating to COVID-19 and the Lock-down have been answered with reference to force majeure, vis major and casus fortuitus. We, therefore, find it prudent to also start here. The purpose of this opinion is, however, not to differentiate between force majeure, vis major and casus fortuitus. Consequently, they shall, for purposes of this opinion, all be treated as one and the same thing as they all concern the impossibility of performance in one way or another.

1. Impossibility of performance

The general rule in our law is that, where impossibility of performance is brought about by vis major or casus fortuitus, a party will be excused from performing in terms of that contract. The exceptions to the rule are, in our opinion, well explained in the case of MV Snow Crystal Transnet Ltd T/ANational Ports Authority v Owner of MV Snow Crystal 2008 (4) SA 111 (SCA):

“As a general rule impossibility of performance brought about by vis major or casus fortuitus will excuse performance of a contract. But it will not always do so. In each case it is necessary to ‘look to the nature of the contract, the relation of the parties, the circumstances of the case, and the nature of the impossibility invoked by the defendant, to see whether the general rule ought, in the particular circumstances of the case, to be applied’. The rule will not avail a defendant if the impossibility is selfcreated nor will it avail the defendant if the impossibility is due to his or her fault. Save possibly in circumstances where a plaintiff seeks specific performance, the onus of proving the impossibility will lie upon the defendant.”

A third exception, not mentioned in the MV Snow Crystal-case, is the fact that the cause of the impossibility, in other words the vis major or casus fortuitus, must have been unforeseen. In the case of Nuclear Fuels Corporation of SA (Pty) Ltd v ORDA AG 1996 (4) SA 1190 (A)the court held that:

“…what is relevant is actual foresight, or the reasonable foreseeability, of the event which causes impossibility, not the consequences of such event, as Ramsden (op cit) would have it. If you foresee vis major you must necessarily foresee impossibility of performance.”

The court later also stated that:

“if the cause of impossibility is not foreseen or is not such that it ought to have been foreseen, then the usual consequences of vis major will follow even if the cause was within the bounds of human foresight.”

Put differently, parties will be excused from performing if the impossibility to perform was not –
• foreseen or foreseeable;
• self-created; or
• due to a party’s own fault.

Keep in mind that, where the contract provides for the process to be followed in the case an impossibility to perform, preference will be given to the wording of the contract. If it is, for example, required that you give notice of the impossibility to perform, you will have to adhere to the terms of the contract. You will therefore, in our opinion, not be excused from performance if you were obliged to give a notice of the impossibility to perform, but failed to do so.

2. Does COVID-19 and the Lock-down constitute a supervening impossibility?

In the case of Peters Flamman and Co Appellants v Kokstad Municipality Respondents (1919) AD 427 it was held by the court that an act of State can be regarded as a vis major or casus fortuitus. The relevant facts of the case were that a business was wounded up upon the order of the Treasury. Consequently, the business was unable to perform, due to the decision of the Treasury. The court held that:

“If a person is prevented from performing his contract by vis major or casus fortuitus, under which would be included the compulsory winding up of his business as an act of State, he is discharged from liability. In these circumstances it is clear that by virtue of this Act of State it became impossible for the [business] to perform their obligations under the contract.”

However, in the Nuclear Fuels-case the court distinguished between cases where it is truly impossible to perform, and cases where it will be illegal to perform. The court held that the difference between supervening impossibility and supervening illegality is one of substance and importance. The latter brings to the fore considerations of public policy.

The court relied heavily on the works of Treitel in Frustration and Force Majeure and came to the conclusion that, where performance will be illegal, it does not automatically render the performance impossible. In instances of supervening illegality, one would have to turn to public policy in deciding whether or not a party should be bound to perform.

In our opinion, public policy will almost always dictate that parties will be excused from performance where such performance will be illegal. But policy considerations will not always require invalidation of a term or a contract. It can, for example, dictate that the party whose performance would be illegal, to rather pay a sum of money instead of performing.

Interestingly, the court in the Nuclear Fuels-case, did not set aside the judgement of the court in the Peters Flamman-case. It, therefore, stands to reason that where a party is unable to perform, due to such performance being illegal, it can be treated as a both supervening impossibility and a supervening illegality.

The court proceeded to mention that, in contrast to a supervening impossibility, in the event of a
supervening illegality, the foreseeability of the illegality made no difference. If it were contrary to
public policy to hold the parties to their contract, it would not matter that they foresaw, or ought to have foreseen the illegality. It will remain against public policy. However, the foreseeability element will, in our opinion, very well influence the public policy in deciding whether a party can be excused from performance, or wheter a party should perform in another way.

3. What if a party has already performed?

Where a party has only partially performed, we will have to turn to the decision of the Supreme Court of Appeal in the case of Kudu Granite Operations (Pty) Ltd v Caterna Ltd 2003 (5) SA 193
(SCA).

Here, the court held that the party who has already performed will have a claim of unjust enrichment against the other. There is, however, not yet conformity on which specific action between the condictio ob causam finitam, an offshoot of the condictio sine causa specialis, or the condictio causa data causa non secuta is the appropriate remedy.

But the court held that the identification of the cause of action is not of importance since there appears to be no difference in the requirements of proof of the two condictiones.

4. In conclusion

We are of the opinion that COVID-19, and the effects brought about by the Lock-down, were neither foreseeable, nor self-created by the members of the public, nor was it due to the fault of the general public. As such, we are convinced that the general rule relating to impossibility of performance will apply and that parties will be excused from performing.

This is, however, not a blanket excuse for failing to perform. Each case will have to be considered on its own facts. It might very well be that the exceptions, described above, finds application to your specific matter.

 

In these unprecedented times, many South Africans are still trying to adjust to life under lockdown amidst the Covid-19 pandemic. In an attempt to limit the spread of the virus, we have been forced to retreat to our homes in compliance with the President’s regulations.

“For the period of the lockdown, every person is confined to his or her place of residence, unless strictly for the purpose of performing an essential service, obtaining an essential good or service, collecting a social grant or seeking medical attention.”

Being confined to one’s home for 21 days is however not without complications and have many South Africans been confronted with the question of where the lockdown leaves parents entitled to exercise contact with their children which are not placed in their care.

It is probably safe to say that most parenting plans or court orders do not contain any clauses titled “in case of state of disaster”. The Minister of Social Development, Lindiwe Zulu, has subsequently clarified that children may not be transported between their two parents and will have to remain in the care of the parent they found themselves in at the time of the lockdown.

Although one parent will not be able to exercise contact physically, parents are asked to navigate these new waters with understanding and cooperation and is this where communication between the parents become key.

Parents are asked to move away from strict and stringent compliance with previous court orders or parenting plans to allow the other parent to exercise telephonic contact as frequently as possible. Facetime, Skype and video calls are also strongly encouraged to ensure that parents are able to maintain the bond with their children during this time.

It is the responsibility of both parents to create a safe space for their children who may already be anxious and confused in light of the current circumstances – this means having access to both parents, albeit telephonically, as long as it is in the child’s best interests.

Our courts, which are currently functioning at minimum capacity, will only be dealing with matters which are inherently urgent and will therefore not intervene in most parental disputes at this stage. Parents should however not make the mistake of thinking that their conduct during this time could not be held against them at a later stage – it may be interpreted as a clear indication of a parent’s attitude towards the other and potential signs of parental alienation.

As the world prepares to fight this invisible enemy, we are reliant on the cooperation and understanding of parents and our fellow citizens during the lockdown. Children should be spared any unnecessary hardship resulting from the virus and will this responsibility fall on the shoulders of their parents.

02. Debt Collection

We have all learned to accept that when you apply for credit, you are required to provide your payslips and bank statements as proof of income.  But what do you do when you do not have a bank account or payslips?  In many instances, small business owners like informal traders, freelancers, and self-employed consumers, are refused retail accounts due to the fact that they do not have a bank account or payslips.  The main reason for this is that a credit provider may be refused judgment when a consumer fails to repay the money and it appears that the credit provider did not comply with the regulations of the National Credit Act (hereafter referred to as “NCA”) and failed to obtain a bank statement or payslip.

Affordability assessments have always been a requirement of the NCA, but credit providers were allowed to determine the manner in which they conduct the assessment.  During March 2015, new regulations to the Act were promulgated, which introduced strict criteria to be followed when conducting the assessments, one of which were that documentary proof of income in the form of three months’ payslips or bank statements had to be obtained.

Recently, clothing retailers Truworths, Foschini and Mr. Price, approached the Western Cape High Court to challenge this prerequisite for credit applications.  The court found that it is discriminatory to demand proof of income in the form of only bank statements or payslips, as it excludes many consumers, who could easily pay off credit instalments.

The court used an example of a flower seller who wants to apply for credit to pay for her child’s school uniform, but does not have a bank account.  The court stated that it is unlikely that such a person would have financial statements, which meant she would have been prevented from obtaining a small amount of credit, even if she was earning a reasonable amount each month.

It is important to note that the ruling does not affect a retailer’s obligation to conduct a fair and objective affordability assessment. A credit provider still needs to properly evaluate the application to ensure that the consumer is not over-indebted and will be able to afford the repayment.  It merely removes the obligation to demand payslips and bank statements as proof of income in certain cases. 

The judgment was welcomed by credit providers all over the country.

You have probably by now realized that the consequences and the impact of the new National Credit Act are quite severe. We would like to give you a short summary and framework of precautionary steps that should be taken to ensure that you do not fall into the pitfalls created by this new legislation.

For practical reasons, it might be better to start with the end in mind. A National Credit Tribunal was established in terms of the National Credit Act.  Should credit providers not comply with one of the multiple provisions stipulated in the Act as well as the regulations of the new Credit Act, this tribunal may declare a contract unlawful and therefore in effect null and void. The effect of this will be that all payments made by the consumer or credit receiver will have to be refunded together with the prescribed interest, which is currently the Repo Rate + 3.5% per annum. Credit providers will not have any claim for damages arising from the depreciation of goods sold to the consumer.

Should a credit provider decide to take action on the grounds of enrichment against the consumer, that enrichment, if the credit provider is successful, will fall into the state’s pocket.

The second concept that should be very clear to credit providers, is the powers that have been given to debt counsellors.  Should credit providers not comply with specific provisions contained in the National Credit Act, together with its regulations, a consumer has the right to approach these debt counsellors to establish whether he is over indebted. Should this debt counsellor indeed find that the consumer is over indebted and that he cannot comply with his obligations under credit agreements, he will have the power to advise a court of law to postpone all obligations under these agreements, or even to restructure the consumer’s liabilities.

The new National Credit Act is without any doubt, the lengthiest act that South Africa has seen in the last ten years, especially if all published regulations are taken into account. For obvious reasons we shall not even try to attempt to deal with all the relevant provisions and clauses.

In an attempt to give a brief background of all the obligations and precautionary steps that should be taken by credit providers, we shall list compulsory steps in chronicle order:

  1. All credit providers should have registered by 28 July 2006. All agreements entered into after this date without proper registration with the National Credit Regulator, will be declared unlawful agreements, should the consumer approach the tribunal or a debt counselor, after 1 September 2007.
  2. Credit providers are obliged to provide all consumers or credit receivers with whom they have existing credit agreements, with a confirmatory letter. This letter should make reference to the current interest rate as charged, outstanding balance, initial capital, administration fees charged, service fees charged and the date on which the agreement will expire.
  3. All credit contracts must be in a language and form which are easily understandable and should be in at least two languages. Please note that this order is taller than it seems to be bearing in mind that 80 % of South African consumers are illiterate.
  4. The Act therefore provides that all credit providers are obliged to do an analysis of the consumer’s profile, to ensure that the provider can afford the credit applied for.
  5. All credit providers, including banks, must ensure that their credit applications comply with the requirements set out in the Act. Although all South African banks already have mechanisms in place in terms of which a client is rated, such analysis, should be stored in case the consumer refers this matter to the tribunal in future. There is also an onus on the provider to explain the terms of the contract to the consumer in easy understandable terms and in a language which the consumer understands. Remember that the Act prohibits any provider to obtain any credit information or credit portfolio of the consumer without his written consent thereto. The reason being that the Act provides that the credit bureau can be held liable for incorrect information.
  6. One of the main purposes of the Act is to prevent discrimination in the credit market and to ensure that credit is available to all South African citizens. The Act gives a consumer, whose application for credit was refused, the right to written reasons for the decision. Proper rating mechanisms will obviously assist credit providers herein.
  7. A cooling off period will be compulsory for all credit agreements.
  8. Consumers under credit agreements have the right to return the purchased goods, at any given time during the contract, to the provider to be resold. There is a long list of rules that regulate these actions by consumers.
  9. Negative marketing options are prohibited and constitute a criminal offence (remember that only a consumer may request for his credit limit to be raised which request must be in writing).
  10. Door to door marketing and informal launches of credit contracts are prohibited and also constitute criminal offences.
  11. Make sure that you comply with the maximum interest rate prescribed by the National Credit Act. Different rates apply to different types of contracts. There is also a limit on service fees and administration fees on all credit agreements. These fees differ for the various types of contracts.
  12. The Act requires a letter of demand to be sent to consumers informing him of any default and of his right to approach a debt counsellor. These letters of demand may only be sent to consumers after they have been in default for at least ten days. A further twenty days after the prescribed letter of demand was sent, has to lapse before any further actions may be taken. If the consumer has already approached a debt counsellor, all further actions will be suspended.
  13. The Act also amends the In Duplum Rule by providing that the sum of the interest and legal costs in respect of the outstanding debt may not exceed the initial capital amount of the contract.
  14. It is impossible to deal with all the relevant clauses and provisions in the National Credit Act in this article. Remember that all advertising and marketing strategies are also now being regulated by this Act. Failure to comply with the relevant sections will render the agreement concluded invalid.

Interest starts running as soon as the debt is due and payable. For example where an invoice states that the due amount should be paid within 30 days, interest will start running after the 30 days if the debtor defaults.

The prescribed rate is provided in section 1(2)(a) of the Prescribed Rate of Interest Act, 55 of 1975. The current prescribed rate of interest is the Repo Rate + 3.5% per annum. This rate will be applicable, except if the parties expressly agree on another rate.

This question was considered by the Supreme Court of Appeal in the case of Brink v Humphries & Jewell (Pty) Ltd 2005 (2) SA 419.

The appellant raised the defense of justus error maintaining that when he signed the credit application form on behalf of the debtor, he had not known that it embodied a personal suretyship obligation. It was common cause that no one had informed the appellant that such an obligation was embodied in the form.

From the facts of the case it appears that the following lines were printed above the space where the appellant had signed the credit application form:

“I the undersigned in my capacity as of the debtor

  1. hereby warrant that I am duly authorized by the debtor to make this application on its behalf and that the above information is true and correct;
  2. do hereby on behalf of the debtor accept and agree to the terms and conditions of contract set out on the reverse hereof, which terms and conditions I acknowledge having read and understood;
  3. do hereby acknowledge and agree that by signature hereto I bind myself as surety and co-principal debtor in solidum with the debtor unto and in favor of the creditor for the due and by the debtor of all amounts which may now or hate any time here often, become payable by the debtor to the creditor in tens of the conditions overleaf.”
The court held that:
  1. The furnishing of a document which was misleading in itself, without more, could constitute the misrepresentation which rendered the contract void ab initio.
  2. It appeared from the evidence that the appellant had indeed acted under a misapprehension in signing the form.
  3. The appellant’s error appeared to have been justus in that the form itself was a trap for the unwary and the appellant was justifiably misled by it.

If you use a standard credit application form in your business you should therefore ensure that any suretyship is clearly indicated in the document preferable on a separate page with a heading referring to a suretyship.

1. Telephone calls and letters of demand;

2. Visits to home or work address of debtor;
3. Listing debtors as bad payers with the credit bureaus;
4. Summons and execution steps to sell movable and immovable property of the debtor;
5. Emolument attachment orders in respect of the salary of a debtor.

 
 
 
 

03. Family Law

It is true, now more than ever, that people follow opportunities. Our geographical mobility, combined with the increase in separations and divorces between parents, causes us to be confronted with the following question more frequently – what can I do if my ex refuses consent for me to emigrate with our child?

This was the case in RW v CS 2019 (6) SA 168 (GJ) where a mother of a four-year-old boy, approached the court for relief when the father of the child refused his consent for her to relocate to New Zealand with their child.

In terms of section 18(3)(c)(ii) of the Children’s Act 38 of 2005 (“the Act”), a parent must give or refuse any consent required by law in respect of the child. This includes consent to the child’s departure or removal from the Republic. Section 18(5) of the Act continues to state that, unless a competent court orders otherwise, the consent of all persons that have guardianship of a child, is necessary in respect of certain matters, which also include a child’s departure from the Republic.

The father’s refusal prompted the mother to request the court to waive this requirement, leaving the court, as upper guardian of minors, to decide how it was to exercise its discretion under s 18(5).

It is important to note that the court’s discretion in these matters, is not defined, and there is no onus that needs to be satisfied for the court to determine whether or not the child may accompany a parent over the RSA borders.

When deciding whether the court will substitute the parent’s consent with its own, the court focuses on the bona fides and reasonableness of the parent’s decision. It will not lightly refuse leave for the child to depart from the country, if it is satisfied that the decision to emigrate is indeed bona fide and reasonable.

In judging the aforementioned criteria, it is important to determine whether the decision to emigrate, is driven by a desire to exclude the other parent from access to the child, or whether the parent has taken that decision reasonably, having regard to her own future and the future of the child.

The applicant justified her bona fides by clearly stating that she would encourage daily telephonic or Skype contact between the father and child. It also became apparent that the child had a very strong bond with the mother’s fiancé, who would move with them, and had been given a lucrative work opportunity, that would enable her to be a stay-at-home mom for the child. Coupled with our country’s high crime statistics, it was clear that they would be able to build a better life abroad.

Although the father opposed the relief sought, he did not have a strong preference to having the child stay with him, should the mother wish to emigrate. In his papers, he merely stated that: ‘If the applicant wishes to emigrate, I would happily look after our son for as long as it would be required.’ His main argument was centred around his conviction that the mother’s relationship with her fiancé would not last the test of time.

The court was of the opinion that it was clear that the mother had been given a rare opportunity, and that if she failed to take advantage of it for the benefit of both herself and her son, she would miss the chance to establish a solid future in New Zealand for the two of them. The court subsequently granted the necessary consent.

Emigrating or relocating undoubtedly has a significant impact not only on the child concerned, but also other parties in the context of their extended family, education and social life. The court will, however, substitute its consent with that of a parent, where it is proven to be a reasonable and bona fide decision.

More than any other parent, unmarried fathers often experience a wide range of problems when it comes to exercising contact with their child born from an extra-marital relationship. What are the rights and responsibilities of such a father, and how can they be enforced?

As a starting point, it is important to mention that the Children’s Act, Act 38 of 2005 (“the Act”), which is regarded as one of the most progressive pieces of legislation worldwide, provides comprehensive protection to both children and parents. This Act also includes protection for the unmarried father as stipulated in Section 21(1)(b) of the Act.

Section 21(1)(b) deals specifically with the rights and responsibilities of the unmarried father. The section is aimed at fathers, who were never married to the mother of their child, but have a sincere interest in their child and wish to be a part of the child’s life. The section places these fathers on equal footing with any other father.

In terms of Section 21, an unmarried father can obtain full parental rights and responsibilities in either of two scenarios.

An unmarried father will firstly be entitled to share parental rights and responsibilities with the child’s mother, if the parents at the time of the child’s birth, lived together or were involved in a permanent life partnership with one another.

Alternatively, the unmarried father may obtain parental rights and responsibilities, irrespective of whether he and the mother stayed together. This he can do if he consents to be identified as the child’s father and has in good faith contributed or attempted to contribute to the upbringing and maintenance of the child for a reasonable period.

Section 21 furthermore states that where the parties dispute whether the father has indeed satisfied the aforesaid requirements, such a dispute must be referred to mediation by the Family Advocate, a social worker or any other suitably qualified person.

Our Children’s Courts, which were called into existence by the provisions of the Children’s Act, with the purpose of giving effect to it, are assisted by experts like social workers or the office of the Family Advocate regularly. The aforementioned persons act as independent experts and render services to the court, being ruled by  Magistrates, who are jurists, and are not always in the best position to determine the best interests of a minor child.

An unmarried father, with a genuine interest in his child, whose rights are being questioned or frustrated in any way, does, therefore, have a right of recourse. The Children’s Act makes special provision for this class of parent, to ensure that they are not placed at an unreasonable disadvantage and may they obtain rights equal to those of the mother of the child.

It is, however, important to remember that, in all matters concerning the care, protection and wellbeing of a child, the child’s best interests are of paramount importance – more so than the rights of either of the parents.

A maintenance order may be varied, suspended or rescinded, by the Maintenance Court in the area in which the child resides. The Maintenance Court will only grant an increase or decrease of the maintenance payable, should the court find that there is sufficient reason to do so. When considering “sufficient reason”, the court often refers to the term “good cause”.

It is not possible to precisely define the term “good cause”, as each matter differs. The court will duly consider the circumstances of each matter.[1]

There are certain factors which the court will consider when determining whether good cause to vary the current maintenance order exists.

The paramount consideration of the court will be the best interest of the minor/dependant child. The needs of the child will, therefore, have to be established. Section 15(2) of the Maintenance Act[2] defines the need of the child as that which a child reasonably requires for his/her proper living and upbringing, and includes: food, clothing, accommodation, education and medical care.

Once the court has established the need of the child, it will consider the ability of each parent to contribute to such need. Thus, the parents must fully disclose their financial position to the court.[3]

Should a parent request a decrease in maintenance, it will not be sufficient merely to provide details of the income of the parties. An inability of the parent to contribute must be shown.[4] It is also important to note that not every change in a parent’s financial circumstances will justify a variation of maintenance.

Should you be convinced that good cause exists for you to increase or decrease the maintenance payment towards your child, an application may be brought in the Maintenance Court in the area in which the child resides by submitting a completed J107E form: “Substitution or discharge of existing Maintenance Order”, together with the necessary supporting documentation.

It is important to remember that each parent has a common law duty to maintain his/her child pro rata to his/her income, to ensure that the child’s needs are sufficiently met. It is furthermore trite law that the maintenance of the child will always receive preference above any other expenses that a parent may have.

04. Wills, Trusts and Estates

The definition of a spouse in the Income Tax Act caters for a person, who is a party to a ‘same-sex or heterosexual union which the commissioner is satisfied is intended to be permanent’ (hereinafter in this article referred to as a “life partner”). Here are a couple of legal and financial implications flowing from being in a relationship as a Life Partner:

  1. No Donations Tax is payable for donations between spouses, which includes life partners.
  2. No Estate Duty is payable in respect of the inheritance of a spouse, which includes a life partner.
  3. No Estate Duty is payable in respect of the proceeds of life insurance paid to a spouse, which includes a life partner
  4. The inheritance of a spouse, which includes a life partner, is exempted from Capital Gains Tax which would otherwise be triggered by death.
  5. Life partners, as a general rule, do not inherit as intestate heirs in terms of the Intestate Succession Act like married couples do.
  6. Life Partners, as a general rule, cannot claim maintenance from the deceased estate of their Life Partners like married couples can.
  7. Life Partners, as a general rule, don’t have any rights to share in the assets of a deceased like surviving spouses, married in community of property, or surviving spouses, married out of community of property with the accrual system, have. They would have to rely on a universal partnership for such purposes. A universal partnership is difficult to prove.
  8. A fixed property, bequeathed to a Life Partner (or any other heir), can be transferred to the Life Partner free from any Transfer Duty.
  9. A life partner can in the case of separation not claim a portion of the other Life Partner’s pension interest like a married spouse can do in the case of a divorce.
  10. Parents are liable for the maintenance of their children whether they are married, or not, and whether they are Life Partners, or not.
  11. Life partners are, as a general rule, not obliged to maintain each other like married couples are.
As in the case of married couples, we advise Life Partners to have a joint will drafted and signed.
We also advise Life Partners to sign a cohabitation agreement, which will, amongst others, in our opinion, help to convince SARS that the tax exemptions, catered for by the Income Tax Act and the Estate Duty Act, can, like married couples, be enjoyed by Life Partners.

The case of Land and Agricultural Development Bank of SA and Others v Parker [2004] 4 All SA 261 (SCA) is a landmark judgement in our Trust Law. This decision of the Supreme Court of Appeal has led to the generally accepted norm in South Africa that a family trust should always have an independent trustee. “Independent” meaning that the relevant trustee should neither be a beneficiary of the trust nor should he be related to any of the trustees or the beneficiaries.

Why the need for an independent trustee? The Court made it clear that a trust should always have a separation of enjoyment and control of the trust assets. In other words, the persons controlling the trust assets (the trustees) should not be the same as the persons enjoying the trust assets (the beneficiaries). To ensure such separation, at least one trustee should be an independent outsider, such as an attorney, an auditor, a financial adviser or a trust company.

The practice of the various Masters of the Court in South Africa also is that no new family trusts are registered by their offices without an independent trustee.

Furthermore, the independent trustee should be involved with all important decisions of the trustees. He should exercise his discretion on whether a decision should be taken or not independently. He should, therefore, not give automatic approval or authorization to the decisions of the other trustees, without proper consideration. His fiduciary responsibility as a trustee obliges him to apply his mind in respect of each resolution of the trustees he signs, for example for the acquisition of an asset by the trust, the alienation of an asset by the trust, the opening of a bank account, the approval of financial statements, the incurrences of any debts and the signing of a suretyship.

What would be the consequences if a family trust either does not have an independent trustee, alternatively if the independent trustee merely rubberstamps the decisions of the other trustees? Far-reaching, to say the least:

  • In the case of a divorce, a spouse could argue that the assets of a family trust are part of the assets of the estate of a spouse for purposes of a marriage in community of property or the accrual system (in the case of a marriage out of community of property with the accrual system);
  • Where a trustee passes away, SARS could argue that the trust assets should be regarded as part of the assets of the deceased for purposes of Estate Duty and Capital Gains Tax; this could have a huge effect on the tax burden of the deceased estate;
  • A creditor of a trustee could argue that the assets of the trust can be attached to settle any debts of the trustee, once again because the assets of the trust should be regarded as assets of the trustee as the debtor.

In all the said examples, the argument is that the trust is a so-called “alter ego” (a person’s alternative personality) or a shadow of the trustee. Substance over form, is another way to describe the relevant principle.

There are several court cases since the Parker decision in which the courts have been prepared to pierce the corporate veil of the trust and thus remove the protective shield afforded to the trustees.

We, therefore, advise our clients to ensure that they:

  • get an independent trustee appointed for their existing family trusts, if they don’t already have one;
  • always appoint an independent trustee where a new family trust is formed;
  • always consult the independent trustee for any important decisions and to provide him with a written motivation for the decision proposed – which can be a brief one.
Most independent trustees will charge fees for their work. This is a small price to pay if you consider the disastrous consequences flowing from the failure to ensure the independence of a trust!

Most trust deeds of family trusts give the trustees a wide discretion in respect of the management of the assets of the trust and the distribution of the income and capital of the trust to the beneficiaries. This statement applies to trusts created while the donor is still alive or in terms of his will after he has passed away.

When can beneficiaries of a trust remove a or all the trustees of such a discretionary trust if they are unhappy with their conduct? When can a trustee remove a co-trustee?

The following are, in my opinion, some guidelines in this regard based on the Trust Property Control Act, 1988, and more specifically section 20 thereof, and the case of McNair v Crossman and Another 2020 (1) SA 192 (GJ).

Both a beneficiary as well as a trustee can get a court order to have a trustee removed if they can show that the specific trustee

  1. has been guilty of misconduct while performing his duties as a trustee, such as, for example, misappropriating trust funds;
  2. cannot properly perform his duties as trustee because of incapacity or incompetence; for example, a trustee who
  1. is mentally ill;
  2. has been found guilty of fraud or theft;
  3. fails or refuses to attend trustee meetings or provide a proper account of trust funds on request of co-trustees or beneficiaries;
  4. has been negligent in the performance of his duties as trustee by failing to properly apply his mind to the management of the assets of the trust.

If a co-trustee or a beneficiary can show that the relationship between the trustees has broken down to such an extent that they can no longer constructively cooperate and attend to their obligations as trustees, the court would also, in the interest of the trust and the beneficiaries, remove one, some or all of the trustees. The court then also has the power to appoint a new trustee or trustees.

The trust deed of the trust might also cater for further grounds to have a trustee removed.

On the other hand, “mere friction or enmity between the trustee and beneficiaries will not in itself be adequate reason for the removal of the trustee from office”. If beneficiaries are, for example, unhappy with the trustees because they refused to release funds that they want to use to buy a new car or do an overseas trip arguing that the money should rather be used for the beneficiaries tertiary education and a rainy day, the court would not, in my opinion, interfere with the trustees’ exercise of their discretion.

No. They can each sign a separate will.

It is, however, in our opinion better to have a joint will. With a joint will there is one document which sets out what happens if the husband passes away first, what happens if the wife passes away first and what happens if they both pass away together or shortly after each other.

Also, the joint will can provide for the massing of the estates should they want to leave a certain asset to, for example, one of the children after one of the spouses has passed away. A farmer might, for example, want to leave his farm to a son after he passes away.

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