Evictions Or Lack Thereof

One of the many difficulties that we are faced with during this country-wide lockdown is the question of eviction proceedings or the lack thereof.

In terms of the amended regulations of the Disaster Management Act 2002 that was published in the Government Gazette on the 29^th of April it states that, “A competent court may grant an order for the eviction of any person from land or home in terms of the Extension of Security of Tenure Act 82 of 1997 and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998: Provided that any order of eviction shall be stayed and suspended until the last day Alert Level 4, unless a court decides that it is not just and equitable to stay and suspend the order until the last day of the Alert Level 4 period.” Therefore, eviction orders may, in fact, be granted but may not be executed and unlawful occupants may remain on the land or home until the Alert Level 4 period is declared to be over.

This is subject to a Judicial Officer’s (a Judge or a Magistrate) discretion that it is not just and equitable to allow the unlawful occupant to remain until the Alert Level 4 period has come to an end. It is difficult to imagine circumstances that would not be “just and equitable” as the amended regulations states. A Judicial Officer would need to be faced with truly exceptional circumstances to enforce the eviction order during the Alert Level 4 period.

We advise all owners of unoccupied property to appropriately secure these premises as many have taken advantage of this lockdown in order to illegally occupy property and in some cases have erected structures. Furthermore, unless a judicial officer deems it to be just and equitable evictions may be granted but the orders will be suspended until the end of the Alert Level 4 period.

Written by:

Harris Hardcastle – Candidate Attorney

For more information please contact Albin Wagner at awagner@bissets.com or via:

Switchboard: 021-441 9800

Website: www.bissets.com

Bissets Whatsapp: 072 370 0416 – our Client Liaison, Tracy, will put you in contact with the relevant professional.

Alert Level 4 SA: Movement Of Children Between Parent

On 29 April 2020, the Minister of Cooperative Governance and Traditional Affairs published the latest Regulations that were issued in terms of section 27 (2) the Disaster Management Act of 2002.

In terms of the Regulations, a child is allowed to move between co-holders of parental responsibilities and rights or a caregiver in the same metropolitan area or district municipality if the co-holders of parental responsibilities and rights or a caregiver is in possession of:

(a) a court order; or

(b) a parental responsibilities and rights agreement or parenting plan, registered with the Family Advocate,

In order for a magistrate to issue a permit, the following documents must be provided:

(i) a birth certificate or certified copy of a birth certificate of the child or children to prove a legitimate relationship between the co-holders of parental responsibilities and rights; and written reasons why the movement of the child is necessary.

A child is allowed to move between co-holders of parental responsibilities and rights or a caregiver between different metropolitan areas, district municipalities or provinces if the co-holders of parental responsibilities and rights or a caregiver is in possession of a permit issued by a magistrate.

Any child who was not at the residence of their primary caregiver before the lockdown period and who could not travel between provinces, metropolitan and district areas during the lockdown will be permitted, on a once-off basis, to return to the residence of their primary caregiver if the co-holders of parental responsibilities and rights or a caregiver is in possession of a permit issued by a magistrate.

In respect of the last two instances, the following documents must be provided for the issuing of a permit:

(i) a birth certificate or certified copy of a birth certificate of the child or children to prove a legitimate relationship between the co-holders of parental responsibilities and rights;

written reasons why the movement of the child is necessary;
a court order; and
a parental responsibilities and rights agreement or parenting plan registered with the Family Advocate.

The Regulations require that the household to which the child has to move must be free of Covid-19.

Parents should continue to adhere to the Regulations and only move a child when it is necessary and should transport a child directly from the one parent to the other with the prescribed documentation.

Written by:
Clint van Aswegen – Partner
For more information please contact Clint van Aswegen on cvanaswegen@bissets.com or via:

Switchboard: 021-441 9800
Website: www.bissets.com
Bissets WhatsApp: 072 370 0416 – our Client Liaison, Tracy, will put you in contact with the relevant professional.

Force Majeure And Its Practical Implications During The Covid-19 Lockdown

What does force majeure mean?

The term force majeure refers to an extraordinary event or circumstance beyond the control of the parties in a contract, which renders either one or both parties unable to perform their contractual obligations. When this occurs, the party who is unable to perform its obligation is absolved from liability by raising impossibility of performance as a defence. Natural disasters, plagues and acts of State are all examples of circumstances which could be classified as force majeure.

In some cases, parties have a force majeure clause included in their contract. Where this is not the case, the common law of impossibility applies to the contract.

Force majeure clauses

In the event that parties have included a force majeure clause in a contract, the parties are able to regulate the consequences that will follow in the event of impossibility of performance. In this context, parties have agreed whether or not performance by the party who is unable to perform should be suspended, when the suspension should lapse and whether or not the contract will terminate automatically.

Common law of impossibility

The case of Unibank Savings & Loans Ltd (formerly Community Bank) v Absa Bank Ltd 2000 (4) SA 191 (W) outlined the common law position of impossibility of performance. The court held that when performance of a contract is impossible due to unforeseen events that are not caused by the parties to the contract, the parties are excused from performing in terms of the contract. The impossibility, however, must be absolute and objective as opposed to relative or subjective. The court highlighted that subjective impossibility to receive or to perform does not terminate the contract or extinguish the obligations in terms thereof.

The more recent case of Glencore Grain Africa (Pty) Ltd v Du Plessis NO & others [2007] JOL 21043 (O) highlighted the supervening impossibility of performance requirements mentioned above, such as the impossibility must be objective, absolute and must not be the fault of either party. The court went further, to emphasize that the impossibility must be unavoidable by a reasona ble person and that the fact that a certain disaster or event was foreseeable does not necessarily mean that it ought to have been foreseeable by a reasonable person.

In MV Snow Crystal, Transnet Ltd t/a National Ports Authority v Owner of MV Snow Crystal [2008] 3 All SA 255 (SCA) the court held that establishing the existence of a force majeure alone is insufficient for successful reliance on the defence of impossibility of performance. The court outlined various factors that need to be taken into account in assessing whether a party may rely on impossibility of performance as a defence, including “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”. These considerations were mainly introduced as a safeguard against the abuse of this defence, such as where the impossibility is self-created by one of the parties.

Is COVID-19 a force majeure?

In determining whether the COVID-19 pandemic and the subsequent lockdown regulations operate as a force majeure and suspend a party’s contractual obligations, an assessment of the specific context of the parties involved needs to be made (as described above).

In the context of South Africa, President Cyril Ramaphosa declared a “national state of disaster” as a result of COVID-19, in an address to the nation on 15 March 2020. Most recently, the Alert Level 4 Regulations released on 29 April 2020 (“the Regulations”) outlined the new restrictions in place to combat this epidemic. This declaration and the Regulations made in terms of this declaration have imposed significant, nationwide restrictions. In order to rely on a force majeure clause to avoid contractual performance, a party would need to show that the impossibility of performance is linked to these events. If the prohibitions imposed by the Regulations do not render contractual performance impossible, then a party to a contract will not yet be able to invoke a force majeure clause, unless such a clause is included in their contract.

What steps need to be taken by the parties?

Where a party seeks to rely on a force majeure clause or where the party anticipates that a force majeure clause will be relied upon, one must start by thoroughly going through the provisions of their agreement. This would be to determine whether the clause covers the occurrence of the circumstances that result from the spread of the coronavirus. In this regard, you have widely or narrowly drafted force majeure provisions. A narrow provision is one that specifically lists the events which may occur and therefore excludes any other event outside of those listed which may be relied on to invoke a force majeure clause. On the other hand, a widely drafted provision will normally include, in addition to the listed events, what is termed a “catch-all phrase” such as “any event arising beyond the control of the parties, rendering the performance impossible”. Therefore, as a party that seeks to rely on a force majeure clause as a result of the virus outbreak, it is essential that they ensure that agreement concerned between the parties is wide enough to include the said outbreak.

Material adverse change clauses (“MAC clauses”)

Another type of clause which is relevant to a force majeure event is a material adverse change clause. This clause allocates the risks that may materialise as a result of a force majeure. These clauses operate where an unforeseen state of affairs results in a material adverse change to one or more parties to a contract (financially or in their capacity to perform) or hinders the achievement of a contractual objective. Although similar to force majeure clauses in that both function in the context of impossibility of performance arising from unforeseen events, MAC clauses are distinguishable in their emphasis on the impact of the unforeseen events on parties rather than the unforeseen event itself.

Whether or not a MAC clause in a contract will be enforceable during the COVID-19 pandemic will depend on a case-by-case analysis. Factors to consider include how the clause is constructed, what circumstances / events are referred to, what the impact is on the parties or the object(s) of the agreements (and degree thereof).

During the pandemic, those wishing to rely on such a clause in their contract should do so with care as the consequence of the argument failing in court could result in claims for damages being raised, damage to a business’s reputation or, more likely, a claim raised that the applicant party has shown reluctance to perform their obligations under the contract (repudiation). The best way forward in these times would be for each party to assess the situation going forward and take every measure reasonably possible to mitigate against the financial hardships a particular business (or party to a contract) may experience as a result, before relying on the MAC clause.

Practical implications: Protection afforded by the Consumer Protection Act 68 of 2008 (“CPA”)

The following provisions of the CPA provide protection in circumstances which may arise during the COVID-19 lockdown. The protection of the CPA is only available to parties who meet the following requirements:

The provisions of the Act are only applicable to (a) individuals or (b) companies with a turnover of less than R1 million
The provisions do not apply to franchises or special-order goods
The provisions only apply to agreements concluded within South Africa

Section 17 of the CPA gives consumers who concluded a contractual agreement without reducing the agreement to writing a right to cancel such agreements. This may be particularly prevalent where an airline or hotel booking has been made. Whilst the consumer is given a right to cancel their booking under the CPA, the Act does also provide some relief to suppliers by allowing them to charge a deposit or ‘reasonable’ cancellation fee. The word ‘reasonable’ imposes a rather broad and subjective standard on suppliers – and it is often difficult to lay down hard and fast rules as to what exactly constitutes ‘reasonableness’. Our courts have, however, suggested a common sense approach as to what would constitute a ‘reasonable’ cancellation fee, based on the particular circumstances of each individual case.

Another important provision in light of the current circumstances, is section 17(5) of the CPA. This section stipulates that if a consumer is unable to fulfil his obligations due to hospitalization or death, he/she is entitled to a full refund from the supplier.

Section 14 of the CPA is of great importance, particularly in relation to commercial and rental agreements. This section deals with the renewal of fixed term agreements and provides consumers with the right to cancel a fixed term agreement by giving suppliers 20 business days written notice. Once again, caution must be given in that the CPA does allow suppliers to charge a ‘reasonable’ cancellation fee, should this provision be exercised by the consumer.

Practical implications: Obligations under lease agreements

During the COVID-19 pandemic and lockdown, there are measures that can be used by parties in a lease agreement to relieve the financial pressures caused by the pandemic:

Landlords may sign a waiver so that the lessee’s deposit can be used as rent instead of it being held in trust. To affect this change, an amendment to the rental memorandum by inserting a clause should be made. This clause should include a provision reinstating the deposit in instalments by a certain date
Parties may also agree to a reduction in rent for a temporary period

Further, these times do bring up the questions of tenants’ obligation to pay rent. The tenant’s obligation will probably depend on weighing their history of payment (if they are a good tenant who pays rent on time) against the impact of the force majeure event. It is only when a tenant’s beneficial use of the property is directly affected that they will be legally entitled to a remission of rent. In the situation where a tenant cannot earn an income, the effect is only indirect and the tenant generally won’t, therefore, be released from their obligation to pay rent.

In the context of residential rental agreements, the tenants will be enjoying full use and enjoyment of the leased property. This means that, despite the fact the tenant may not be earning their full income, their obligation to pay rental is unaffected. However, a commercial tenant who cannot use the property could be entitled to remission of rental. However, Judicial Officers will evaluate these situations on a case by case basis.

In terms of evictions, the position established by the Regulations is that Courts may grant evictions orders, but they shall be suspended until the last day of the Alert Level 4 period unless the court states otherwise.

Practical implications: The functioning of parental contact

The effects of the national COVID19 shutdown have had serious impacts on the movement of children and parental custody during the country’s 21-day lockdown period.

The current Regulations now permit the movement of children between co-holders of parental responsibilities in the same metropolitan area of district municipality, provided the parents are in possession of a court order, existing parenting plan (registered with the Family Advocate) or Form 3 of Annexure A of the Regulations (issued by a magistrate). Parents need to keep these documents on them when transporting children, in case they are stopped at a police roadblock during the lockdown period. Movement will not be allowed if one of the child’s households has recently been infected, or has reasonably suspected to be infected, by COVID-19, or if there is a reasonable suspicion that a member of his/her household has been in contact with an individual infected with the virus.

For more information please contact Stephen Koen on skoen@bissets.com or via:

Switchboard: 021-441 9800

Website: www.bissets.com

Bissets Whatsapp: 072 370 0416 – our Client Liaison, Tracy, will put you in contact with the relevant professional.

Time for Change

“The secret to change is to focus all of your energy not on fighting the old but on building the new.” – Socrates

Welcome to our new-look Newsletter, the launch of which has come at a time where the world we live and work in is vastly different from what we knew a few weeks ago.

Thankfully, technology has made it possible for many aspects of business and schooling to continue to operate. At Bissets, we have systems that are in place to ensure that our attorneys and staff are available, that they have the necessary tools, and are able to work remotely and that we continue to provide our services to you with as little disruption as possible.

Our homes have become offices and schools with meetings and lessons taking place by way of video conferencing. Whatsapp and email communications have become a vital tool both in business and in our personal lives. Working parents have become teachers and are having to juggle facilitating school work with managing their professional life. Social media is an ever-increasing way in which to connect with clients, friends, and family. We are seeing innovation in the way in which business and life is conducted and many have been forced into a steep learning curve and adapt very quickly in this ever-changing situation.

We are truly together in this pandemic.

The partners and staff are in constant communication and monitoring matters and ways within which to navigate the way forward as each situation or announcement requires changes. We are, as always, striving to keep our clients informed where there are changes in the law and providing the highest level of service and efficiency.

The Deeds Office, Master’s Office, and the CCMA were closed during the lockdown period (Level 5). As of 1 May 2020, South Africa moves to Alert Level 4 and various parts of our economy will reopen.

Our offices reopened on 4 May 2020 to perform an essential service as provided for in terms of the Regulations of 29 April 2020 issued by the Minister of Cooperative Governance and Traditional Affairs.

We are implementing additional standards of hygiene and health protocols relating to Covid-19 at our offices and the majority of our staff are continuing to work from home. The Deeds Office and Master’s Office will also resume operations and we await directions/guidelines with regard to the procedures and functioning of their offices.

The Chief Justice has stated that the Courts will be open for “urgent” matters involving: any urgent matter or bail application, maintenance and domestic violence matters, cases involving “children issues” and urgent matters arising out of or from the activities associated with disaster management.

I would like to, on behalf of the partners, extend our thank you to our staff for the manner in which they have risen to the challenge in carrying out their work in these difficult circumstances. Their commitment and support is greatly valued.

It remains to be seen how Covid-19 will affect our business and individual lives in the future and what the new “normal” will be. In the meanwhile, please stay safe and take care of yourselves.

Stay safe, regards

Clint Van Aswegen
Managing Partner

Life Under Lockdown – Covid-19 And The Enforceability Of Contracts

The lockdown has had alarming consequences for the providers of all goods and services not deemed to be “essential”. The regulations issued by Minister Dlamini Zuma on 25 March 2020 require every non-essential business to close. Yet salaries and wages need to be paid, rent needs to be paid, electricity bills need to be paid – just about every expense associated with such a business continues to be incurred. However, as a direct consequence of compliance with the lockdown laws, the ability to generate income of many who trade in non-essential goods and services has all but dried up completely. Does our law have any answers in these circumstances?

It is necessary, firstly, to understand the distinction between the validity of a contract, and its enforceability. It has long been the position in our law that contracts which are contrary to public policy are invalid. An agreement to commit a crime, for example, is contrary to public policy and invalid on this ground. Any attempt by a party to such a contract to enforce it will not get off the ground, because the contract – on account of its invalidity – does not confer rights or obligations upon any of the parties. Invalid agreements simply cannot be enforced. However, once an agreement is found to be valid the next question which arises is whether its enforcement is contrary to public policy. If it is then a Court will not enforce the terms of such a contract. Restraint of trade agreements are an example of agreements which are not contrary to public policy, and therefore valid, which Courts nonetheless refuse to enforce if, on the facts, it is shown that enforcement is against public policy. For example, a restraint of trade agreement which is purely anti-competitive in nature will not be enforced by a Court, even though restraint of trade agreements are valid in law.

In Barkhuizen v Napier the Constitutional Court had to consider the question whether a term in a contract of insurance requiring the insured to institute legal proceedings against the insurer within 90 days of the claim being repudiated was against public policy and, accordingly, valid.

In considering the question before it the Court considered separately the issue of validity and the issue of enforcement. Firstly, was the agreement that the insured had to institute proceedings within 90 days of his claim being rejected constitutionally valid? And secondly, if the agreement was constitutionally valid, was it unconstitutional to insist on compliance with the clause? Ultimately, the Court held that the agreement was valid and that, on the facts before it, its enforcement was not against public policy. Let’s examine, briefly, the notion of “public policy”. It is important to understand what is meant by this. In Barkhuizen the Constitutional Court said this:

“[73] Public policy imports the notions of fairness, justice and reasonableness. Public policy would preclude the enforcement of a contractual term if its enforcement would be unjust or unfair. Public policy, it should be recalled “is the general sense of justice of the community, the boni mores, manifested in public opinion.” Thus where a claimant seeks to avoid the enforcement of a time limitation clause on the basis that non-compliance with it was caused by factors beyond his or her control, it is inconceivable that a court would hold the claimant to such a clause. The enforcement of the time limitation clause in such circumstances would result in an injustice and would no doubt be contrary to public policy. As has been observed, while public policy endorses the freedom of contract, it nevertheless recognises the need to do simple justice between the contracting parties. To hold that a court would be powerless in these circumstances would be to suggest that the hands of justice can be tied; in my view, the hands of justice can never be tied under our constitutional order.”

These principles have not been tested in circumstances such as those confronting us today. Never before have providers of non-essential goods and services been legally prevented from trading and earning an income in order to prevent the spread of a lethal virus in an attempt to prevent the massive loss of life.

However, it is a question of applying the legal principles set out above to the facts. We think that an attempt by a landlord to enforce a lease, for example, by insisting on payment of rent, or cancelling on account of non-payment, may be met by the defence that for a Court to order compliance by a tenant in the circumstances of the present COVID-19 pandemic is against public policy. In other words, the enforcement of the agreement may be against public policy and not therefore be lawful. Evidence, however, is crucial. The tenant would need to show that his or her inability to pay rent was, as a matter of fact, directly a consequence of an inability to trade because of the Regulations prohibiting trade issued by Minister Dlamini Zuma, and not a matter over which he or she had any control.

It remains to be seen whether our law will be developed along these lines. We think that there is every chance that the point canvassed above will be taken and that our courts will be required to pronounce upon it.

Written by:
Stephen Koen – Partner
Savanna Kanzler – Candidate Attorney

For more information please contact Stephen Koen on skoen@bissets.com or via:

Switchboard: 021-441 9800
Website: www.bissets.com
Bissets WhatsApp: 072 370 0416 – our Client Liaison, Tracy, will put you in contact with the relevant professional.

Immovable Property Update

IMMOVABLE PROPERTY UPDATE

BUDGET 2020

Please take note that during the National Budget Speech that took place on 26 February 2020, it was announced that for the first time in 3 years, the transfer duty exemption threshold for the sale of immovable property has increased to R 1 million. This will be effective for all deeds of sale signed after 1 March 2020.

How does the law provide you with protection in your relationship?

There are a growing number of people, in South Africa and around the world, that live in long-term, intimate relationships that are akin to marriage without this relationship being formalised in law. This may be a conscious decision on behalf of the parties to avoid the consequences of marriage or it may be because the law does not provide recognition for their type of relationship. Often, the people living in these relationships expect that their relationship will have the same consequences as marriage, because of the substantive similarities, but currently in South Africa no legislation provides for this protection. The question then arises: how does the law protect potentially economically vulnerable members of these life-partnerships in a way that promotes fairness and equality?

What protection might be required?

Dividing communal property

One difficulty is determining how to divide communal property amassed during the course of the life partnership, especially when one party has been economically reliant on the other. In a marriage this situation is provided for in the type of matrimonial property system the couple agreed upon. For people involved in a life partnership, deciding how to divide the property, or whether to divide it at all, is more complicated.

Maintenance

When a marriage comes to an end, a party to the marriage can apply to court for a post-divorce maintenance order as a means of, inter alia, compensating a partner their “career sacrifice and [their] non-remunerated contribution to the family”. In a life partnership, the position in relation to an entitlement to maintenance is not as clear. A lack of protection in this regard could mean that a partner who sacrificed his career to stay at home and look after the family is left economically vulnerable at the end of his life partnership.

Intestate succession

When a person dies without a will, their estate is administrated in terms of the laws of intestate succession. Currently in South Africa, when a party to a heterosexual life partnership dies without a will, the surviving partner is not entitled to inherit. Until there is significant legal development is this regard, it is important for heterosexual partners in a life partnership to draw up a will if they wish to ensure that their partner will inherit from them.

What protection currently exists?

At the outset, it is important to note that South African law does not recognize a so-called ‘common law marriage’ that comes in being after parties have been living together after a certain period of time. In an attempt to fill the lacuna in the law for protection for people in life partnerships the South African Law Reform Commission has produced a draft of the Domestic Partnerships Bill. This Bill aims to provide the legal protection to people living in life-partnerships. Unfortunately, the legislature has yet to consider this Bill and it has not been passed or, indeed, notably progressed since it was produced in 2006.

Contract

Partners can always conclude a formal contract regulating the ownership of their property and providing protection for the situation where one partner is financially dependent on the other. It is questionable, however, to what extent a person who is already in a vulnerable position would be able to ensure sufficient protection is contracted for.

Tacit universal partnerships

Recently, the Supreme Court of Appeal (“SCA”) has been willing to infer tacit contracts between persons living in life-partnerships which allow the court to provide some protection to these individuals. These inferences are based on a strong presumption that the parties intended to deal fairly with each other. In 2012, a landmark judgement in the SCA found that a court can infer from the conduct of the parties that they tacitly concluded a universal partnership. A universal partnership is a partnership in which “the parties agree to put in common all their property, present and future”. The court described how a universal partnership must be understood in a holistic way. It noted how a partner could validly contribute to the partnership by dedicating themselves to non-commercial aspects of the partnership, like building a home and caring for the family. This means that if one partner was the breadwinner and the other provided domestic support at home, both are entitled to share in the overall value of the partnership. This ‘tacit universal partnership’ could be used for the court to make maintenance orders for parties to a life partnership and to ensure that communal property is equitably divided between the partners.

Please contact Kobus Pieterse on kpieterse@bissets.com for further information.

Savanna Kanzler | Candidate Attorney

E: skanzler@bissets.com

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)

Notaries: How do they differ from other attorneys?

While most legal matters can be attended to by attorneys, some matters can only be dealt with by notaries. A notary is also an attorney, but has undertaken certain further studies, passed further exams and brought an application to the High Court to be admitted as a notary.

A notary is subject to strict norms in respect of the duties involved, and is also subject to the highest degree of good faith and a standard of action and conduct which will justify the trust placed in the notary. A notary must be impartial, credible, responsible and independent.

Other attorneys make use of the services of notaries for a variety of things, such as for notarial cessions of Exclusive Use Areas, but the public will usually only require the services of a notary in very specific cases, the most notable ones being Antenuptial Contracts and the authentication of a signature or document for use abroad.

Most married couples will have an Antenuptial Contract in place. For those soon to get married, an Antenuptial Contract is an agreement that you and your fiancé enter into to arrange your matrimonial property system in such a way to suit your circumstances and to protect yourselves from creditors. This is signed by both parties in the presence of a notary, and then registered at the Deeds Office. (Click here to find out more).

The other instance when you may require the services of a notary is when documents, such as a copy of an ID or a Power of Attorney, must be sent abroad. These will usually only be accepted abroad if they have been notarised. A commissioner’s certification will in these instances not suffice. A notary, however, can prepare a certificate in which the notary confirms the authenticity of the document or the signature. In other words, the notary confirms that he saw the original document, or confirms that he verified the signatory’s identity as well as saw the signatory sign the document.

The notary’s signature is then in turn verified by the High Court by way of an apostille, and the documents are ready to be sent abroad.

As was said by Justice Solomon in 1909: “The presumption is that every statement in a notarial deed is true and that all proper solemnities have been observed by the notary.”

Lili Von Geyso | Senior Associate

E: l.vongeyso@bissets.com

Areas of Expertise: Litigation, Deceased Estates, Contractual Law, Labour Law, Notarial, Immigration Law

Update: Lost title deeds

In February 2019 the Chief Registrar of Deeds issued a circular to announce that the Deeds Registries Regulations Board (the Board) had decided to suspend the implementation of the amendments to regulation 68 of the Deeds Registries Act 47 of 1937 announced in February 2019. However on 1 November 2019 the Minister of Rural Development and Land Reform published amended regulations dealing with lost or destroyed title deeds of fixed property. The amended regulations will commence 1 January 2020.

An advertisement regarding the intention of the property owner to apply for a copy to replace the lost or destroyed title deed will also, in terms of these changes, have to be placed in a newspaper circulating in the area in which the land is situated affording affected parties two weeks from date of publication to object. In case of a notarial bond the advertisement will have to be placed in an issue of one or more newspapers circulating in the area of every deeds registry in which such notarial bond is registered.

Copies of the above-mentioned deeds will also be open for inspection in the deeds registry free of charge by any interested person during the two week period. If an affected party wants to object, the objection must be lodged in writing with the relevant Registrar of Deeds within the two week period.

This will certainly cause a delay in any property transaction and there will also be additional costs for the property owner.

We therefore urge all property owners to ensure that they know the whereabouts of their title deeds. If your property is mortgaged to a bank under a mortgage bond then the bank would usually hold the title deed. If your property is un-bonded and you cannot locate your title deed we urge you to contact us immediately to assist with the replacement thereof before the implementation of the new regulations.

If you would like a more in-depth analysis or legal advice regarding the new regulations please do not hesitate to contact us.

Purchase of immovable property by a company to be formed

Section 21 of the Companies Act 71 of 2008 (“the Act”) provides for an exception to the common law rule that a person cannot bind a non-existent principal.

The Act provides in Section 21(1) that a person may enter into a written agreement on behalf of a company not yet in existence at the time. However, the Act sets out various formalities that must be adhered to for a pre-incorporation contract to be valid and enforceable.

The above exception is qualified by Section 21(4) which sets out strict timelines for ratification of the pre-incorporation contract by the company, as well as a default rule in the event that the company neither ratifies nor rejects the contract. In particular, the Act provides that the board of directors may within three months after the date on which a company was incorporated, completely, partially or conditionally ratify or reject any pre-incorporation contract. Failure to do so, will result in the company being deemed to have ratified the pre-incorporation contract.

Should the company ratify the pre-incorporation contract, then the person who represented the company will be released from all legal liability. However, should the company not be incorporated, or after its incorporation, rejects any part of the contract, the person who entered into the pre-incorporation contract on behalf of the company will be held personally liable on a joint and several basis (together with the company, if incorporated) for the liabilities under the contract.

The common law is not excluded by the Act. Therefore, parties can still conclude a contract on behalf of a company to be formed by making use of the common law stipilatio alteri (contract for the benefit of a third party). The only difference between the above methods is that the common law does not provide for deemed ratification of the contract and does not impose personal liability on the person contracting on behalf of the company. If the company is not incorporated or the pre-incorporation contract is rejected by the company, the contract simply falls away.

It is important to note that the Act does not specifically deal with the rights and obligations of the parties in the interim period, i.e. the period between conclusion and ratification of the contract by the company. Therefore, and in order to avoid uncertainty, it would be prudent to structure the contract in such a way so as to clearly reflect the intentions of the parties. In particular, it is advisable to indicate whether the contract is a S21 pre-incorporation contract or a common law stipilatio alteri. Furthermore, and based on the judgement handed down in the case of Venalex (Pty) Ltd v Vigraha Property CC and Others (2015) 2 All SA 645 (KZD), where the court held that the words “a company to be formed” can be construed as to include a shelf company, it is recommended that the contract clearly specify whether the company will be a shelf company or a newly incorporated company.

In conclusion, considering the implications of personal liability, it is advisable to consult an attorney before entering into such pre-incorporation contracts.

For more information, please contact our Alison Caron Fortuin at afortuin@bissets.com or call our offices on 021 441 9800.

Alison Caron Fortuin | Senior Associate

E: afortuin@bissets.com

Areas of Expertise: Conveyancing | Property Law

The age old question surrounding fixtures and fittings: What stays and what goes?

When selling their properties, sellers are not always aware of the rules around fixtures and fittings and what should stay and what may be removed.

The “golden” rule in South African property law is that everything built on or attaching to the land, forms part of the land. The rule aims to protect land ownership and dates back to the Roman Law principle, superficies solo cedit, meaning that what is on the surface yields to the land. That means whatever is on the land, belongs to the owner of the land.

Unfortunately, there are many instances where a property is sold without any reference to fixtures and fittings. The general rule is that when a buyer purchases a property and becomes the owner of it, the permanent physical improvements such as any buildings erected on the land, along with all items that are permanently attached to the improvements or buildings are purchased as well. This includes (but is not limited to) upgrades and fixtures and fittings of a permanent nature. It is therefore important to define what is regarded as “permanent nature”.

When trying to establish whether a fixture or fitting is of a permanent nature, the following should be taken into consideration:

The nature of the item. Is its intended purpose to serve the land permanently?
The manner and degree of the attachment of the item. Can the item be removed without causing damage to the structure or land to which it is attached? If not, the item should not be removed and should be considered as permanent.
The intention of the owner when attaching the item. If the intention of the owner was to attach the item permanently, then that should be given consideration.

A seller should therefore prepare a list itemising what is to be included in the sale of the house or flat prior to listing the property with an agent and the property being viewed by potential buyers. There may also need to be an agreement in regard to replacing some of the items. This too should be included in the agreement.

Fittings and fixtures that the seller wishes to remove must specifically be stipulated in the agreement of sale between the buyer and seller. Even if the item is regarded as a fixture, a seller is within his rights to remove the item, provided the buyer is aware of the fact, and agrees, normally with the requirement that the seller make good any damage which may be caused by its removal.

For more information, please contact our Leanne Williams at lwilliams@bissets.com or call our offices on 021 441 9800.

Leanne Williams | Associate

E: lwilliams@bissets.com

Areas of Expertise: Conveyancing | Property Law

Antenuptial contracts: Financially safeguarding yourselves

Getting married is more than just saying “I do” and choosing a wedding cake: you must also choose a marital property regime. This is not planning for divorce, but rather, planning for one’s future!

There are three marital regimes to choose from, each with their own advantages and disadvantages:

Marriage in community of property: your and your partner’s estates become a “joint estate” and you share all assets and liabilities, barring a few automatically excluded assets. You also have to have each other’s permission to, for instance, open an account or obtain a bond.

Should one party become insolvent, the entire joint estate can be attached by creditors to settle debts and the parties can lose everything.

Marriage in community of property is the default position if you do not have and antenuptial agreement, although this can be changed later through an application to the High Court.

Marriage out of community of property: each spouse retains a separate estate and the freedom to deal therewith as that spouse sees fit. In this instance, spouses may also be protected from one another’s creditors.

If one chooses to be married out of community of property, both partners must sign the antenuptial agreement in front of a notary before getting married. This is registered at the Deeds Office and becomes a public record.

Should you decide to marry out of community of property, you can elect whether the accrual system will apply or not.

2.1. Without the accrual system, the estates of the spouses remain separate from the beginning to the dissolution of the marriage, i.e. on death or divorce. The spouses have no claim to the increase in the other spouse’s estate.

2.2. If the accrual system applies, the gains of the spouses’ respective estates are compared on the dissolution of the marriage, and an adjustment is made. In other words, the increases in the estates from the date of the marriage are compared, and the difference is divided in two.

It is important to consult a notary timeously before entering into a marriage.

Lili Von Geyso | Senior Associate

E: l.vongeyso@bissets.com

Areas of Expertise: Litigation, Deceased Estates, Contractual Law, Labour Law, Notarial, Immigration Law

Property Practitioners Bill

The Property Practitioners Bill has officially been signed by the President on 2 October 2019, however, the commencement date has not yet been decided.
The Act will replace the 43-year-old Estate Agency Affairs Act and provide for the continuation of the Estate Agency Affairs Board, to be known as the Property Practitioners Regulatory Authority (“the Authority”).

The objective of the Authority is to regulate the way Property Practitioners deal with consumers, market, manage, finance, let, and the sale and purchase of property.
Furthermore, the Authority is tasked with the education and protection of consumers from undesirable practices. Should the need arise, the Authority may appoint inspectors with powers to enter and inspect business premises and seize documents, in some instances, even without a warrant.

The Act provides for a wide definition of the word “Property Practitioner” and apart from those listed in the Estate Agency Affairs Act, now includes many other role players such as:

Commercial brokers who sell businesses;
Mortgage bond brokers;
Providers of bridging finance (unless they work for registered financial institutions);
Property valuers;
Persons doing home inspections for purchasers before a sale;
Property managers;
Agents involved in the selling of timeshare and fractional ownership;
Anyone else who facilitates or acts as intermediary with the primary purpose of bringing about a sale of a property or a business;
Employees of attorneys who act as estate agents, even though they are also covered under the Attorneys Fidelity Fund;
Persons who were Property Practitioners at the time when they committed an offence under the Act (the purpose of this is to ensure that a person is sanctioned under the Act, even after the person has left the industry).
Digital portals that publicly exhibit properties (or businesses) for sale or for rent using electronic means;
Companies that receive rentals on behalf of others.

The only exclusions from this definition are attorneys and candidate attorneys, sheriffs of the court, a person offering property practitioner services, but not in the normal course of his business, and a person selling his own property (but excluding a property developer).

In terms of the Act, a Property Practitioners Ombud will be established to consider and resolve complaints and disputes.
Complaints are to be handled in a procedurally and substantively fair, informal, economical and expeditious manner.

The current Estate Agents Fidelity Fund will continue to operate, but will now be referred to as the Property Practitioners Fidelity Fund.

In terms of the Act, a Property Practitioner who is not in possession of a valid Fidelity Fund Certificate, will not be entitled to any remuneration.
Any remuneration earned by a Property Practitioner whilst not in possession of a valid Fidelity Fund Certificate, must be returned to the person who provided the remuneration, on demand. The Fidelity Fund Certificate must be displayed in every place of business where a Property Practitioner operates. In addition, the letterheads and marketing materials of the Property Practitioner must include the prescribed sentence confirming their possession and the validity of the certificate.

The Act stipulates that a conveyancer may not pay over commission to a Property Practitioner if the conveyancer does not have a copy of the Property Practitioner’s valid Fidelity Fund Certificate on their file.
Should an agent practice without this certificate, any commission payable to such agent flowing from the conclusion of a sale agreement, must be refunded to the seller.

A further new requirement for the issue of the abovementioned certificate, is the requirement to provide a BBBEE certificate.
Apart from the costs related to procuring these certificates, there are other concerns relating to the provisions of the BBBEE Act that deem an enterprise with an annual turnover of less than R10 million to be an exempt micro-enterprise. Many smaller estate agencies fall within this category and won’t be obliged to furnish such a certificate.

All Property Practitioners must have one or more trust accounts into which their client’s money must be deposited.
Details of these accounts must be provided to the Authority as well as the details of the auditor to the accounts, if account audits are applicable.

The Act also requires that correspondence, legal agreements, copies of advertising and marketing materials must be retained for 10 years.
Fortunately, these documents may be stored electronically.

With regard to defects, a mandatory disclosure form will have to be completed by the seller/lessor and attached to all sale or lease agreements.
This applies to both commercial and residential properties. If a written mandatory disclosure form is not included, the agreement will be interpreted as if no defects or deficiencies were disclosed. Failure to comply with this requirement will result in liability towards an effected consumer and possibly a sanction by the Authority.

Shariah compliant Wills in South Africa

In Islam, it is obligatory for Muslim persons to have a Will to ensure that one’s estate is administered in terms of Shariah Law. This is especially necessary where the Islamic laws of inheritance is not the law of the land. In South Africa, Shariah law is not automatically implemented and regulated. It is therefore important to have your estate in order and to have your Will drafted in accordance and in compliance with Shariah law, so that on death your estate will be administered in terms of Shariah law.

South African law of succession vs Islamic Law of Succession

Shariah law of inheritance differs considerably from South African law of succession. In South Africa, if a person dies without leaving a Will, he/she dies intestate and his/her estate would be administered in terms of the Law of Intestate Succession, which is regulated by the Intestate Succession Act 81 of 1987 and which will dictate who may inherit from the deceased and what share of the estate the heir should inherit.

This would impact Muslim persons who die without a Will, as their heirs, who should inherit, may not and those, who should not, may inherit. The estate will not be administered in accordance with Shariah law, but rather in accordance with South African Law of Intestate Succession.

In Islam, the issue of whom and how one inherits are prescribed by the Quran. In South Africa, the law recognises the freedom of testation, which means that the testator decides how his/her estate will be wound up after death. In order to execute a valid Will in South Africa, whether it is a Shariah compliant Will or not, any Will drafted must comply with the provisions of the Wills Act 7 of 1953 as amended. South African law does permit a Muslim person to specify in the Will that his/her estate must be distributed in accordance with Shariah law.

Shariah law in respect of inheritance

Inheritance is considered as an integral part of Shariah law. Muslim persons inherit from one another as stated in the Quran. Upon death of a Muslim person, there are certain matters that must be attended to before the heirs can inherit from the estate. These are the funeral expenses and debts of the deceased which must be taken care of before any heir can inherit. It is only once these matters have been taken care of can the remainder of the estate be distributed in terms of Shariah law.

The Quran fixes the shares of each individual. In accordance with Shariah law only relatives with a legitimate blood relationship to the deceased are entitled to inherit. The testator is however allowed to bequeath one-third of his estate to anyone he/she wishes. This is called a wasiyaah, which can only be bequeathed to a person/charity that would not ordinarily inherit from the remaining two-thirds of the estate in terms of Shariah law. If the bequest is however made to an heir, it will be subject to the approval of the remaining heirs and it is important to note that the Quran provides a rule that a son’s share must be twice that of the daughter’s share.

For more information on Islamic law of inheritance, the drafting of Wills and Shariah compliant Wills, please contact our Rifqah Omar at r.omar@bissets.com or call our offices on 021 441 9800.

Rifqah Omar | Partner

E: r.omar@bissets.com

Areas of Expertise: Litigation / Dispute Resolution | Professional Discipline Law | Muslim Personal Law | Curatorship applications and administration |
Administration of estates

Why do I need a valid will?

In South Africa, a person can leave his / her assets to whoever he /she likes. This is called “freedom of testation“.

For your will to be valid it will need to be drawn up in the correct way to comply with the formalities provided for in our law.

The following are some of the more important requirements of the Wills Act 7 of 1953:

Anyone 16 years or older can make a will, provided that the person is mentally capable of appreciating the effect of what he or she is doing. The will must be in writing and must be signed by the testator or testatrix or by both in case of a joint will.

The will must be signed in the presence of two or more competent witnesses, who must be 14 years or older. The witnesses must sign the will in the presence of the testator or testatrix and of each other. A beneficiary, trustees and Executors or their spouse can’t be witnesses to a will from which they benefit.

Each page of the will must be signed by the testator/testatrix and witnesses.

Although it is not necessary to date a will for it to be valid, dating it is important to determine if it is the last will.

Oral wills and family arrangements are not recognised in our law and are not enforceable and can merely be used as guideline regarding the testator’s wishes.

Handwritten wills

In the case of a handwritten will in full or in part, it is required to be in the testator’s own handwriting. In the event that an heir or nominated executor writes the will, it will trigger intestacy and will result in an heir or executor being disqualified form inheriting or being appointed. In a case where an heir is disqualified from inheriting as a result of handwriting the testator’s will, such a beneficiary will only be able to inherit as much as they would have been entitled to in terms of intestate succession.

Must I amend my will after divorce?

If a person dies within 3 months after his or her marriage was dissolved by divorce and the deceased drafted a will before the marriage was dissolved, the ex-spouse will not inherit unless it is clear that the deceased intended to allocate a benefit to his/her ex-spouse.

What is a codicil?

A codicil is an annexure to an existing will, which is made to supplement or amend an existing will. The codicil must comply with the same requirements for a valid will.

What does an Executor do and who can I appoint as Executor?

The Executor is the person who’ll make sure that your assets are divided to your wishes according to your will. The Executor also evaluates the estate and its debts. The Executor can be your spouse, child, parent, family friend or an attorney.

The person or company so nominated will have to apply to the Master of the High Court after your death to be formally appointed by the Master to act in this capacity. If the person you choose is not a professional estate administrator then the Master will insist that the person concerned utilise the services of a professional estate administrator to attend to the work which needs to be done.

Where do I keep my will?

It is important that your original will is kept safe with a responsible person or institution, as a copy or certified copy of a will is not considered a valid will, which will result in your estate being wound up according to intestate succession.

What happens if I die without a will?

If you die without leaving a valid will, the assets in your estate will be divided according to the provisions set out by law in terms of the Intestate Succession Act. These provisions are generally fair and ensure your possessions are transferred to your spouse and children, and where applicable, to siblings, parents, and if required, then to the extended family in terms of degrees of relationship, which may not be what you want.

For more information on the drafting of Wills, please contact our Elke Herbst at e.herbst@bissets.com or call our offices on 021 441 9800.

Elke Herbst | Associate

E: e.herbst@bissets.com

Areas of Expertise: Wills | Deceased Estates | Curatorships

What is a power of attorney?

A Power of Attorney is a notice that gives a third party the permission to act on your behalf and/or make decisions for you. It can be restricted to specific matters (“special power of attorney”) or without restrictions for all matters (“general power of attorney”), and is considered a valuable tool when the decisions are made eg: when overseas or when a person becomes too frail to physically sign documents.

The most common instance where is power of attorney is used is with the elderly, especially when someone becomes too frail to physically sign documents. In a situation like this, a power of attorney can be considered a practical solution for convenience.

For how long does a power of attorney stay valid?

It may come as a surprise that it is not possible under South African law to sign over a power of attorney when becoming mentally incapacitated. When a person becomes mentally incapacitated and is no longer able to conduct their own affairs, the power of attorney ceases and professional assistance needs to be brought in. The reasoning behind this is that since the person signing over the power of attorney can no longer act personally, the agent can’t act on his or her behalf. If a person becomes mentally incapacitated after executing the power of attorney, the power of attorney is invalid and terminates. It becomes irrelevant that the person had full mental capacity at the time of signing the power of attorney. If someone acts on an invalid power of attorney, it can be considered fraud and they can expose themselves to personal liability for personal losses by a third party.

If someone becomes incapacitated their family can apply to the High Court to place such person under Curatorship and all authority in terms of the incapacitated person is transferred to the curator.

In addition to the above, a power of attorney will also terminate on death of the person signing over the power of attorney if the person becomes insolvent or on completion of the period for which the power of attorney was originally granted. In the case of a special power of attorney, the power granted will terminate on execution of the mandate.

For advice on this topic or assistance in any matters relating to legal matters, please contact our law specialist Elke Herbst at e.herbst@bissets.comm.

Elke Herbst | Associate

E: e.herbst@bissets.comm

Areas of Expertise: Wills | Deceased Estates | Curatorships

Do employees have the right to practice their religion?

In a matter that was heard before the Labour Court, the employer dismissed the employee for incapacity after the employee had refused to work on Saturdays on account of her being a member of the Seventh Day Adventist Church.

The employer, who conducts business as a logistics and transport service provider, required stock-taking to be done once a month on a Saturday. The employee was employed as part of the employer’s graduate management training programme. The employer argued that it was an inherent job requirement of the employee to be able to work on Saturdays.

In considering whether something qualifies as a legitimate inherent requirement of a job, the Court stated that “[t]he test for whether a requirement is inherent or inescapable in the performance of the job is essentially a proportionality enquiry” and that “[i]n general, the requirement must be rationally connected to the performance of the job.”

The Court furthermore stated that “[t]his means that the requirement should have been adopted in a genuine and good faith belief”, that it is necessary for the “fulfilment of a legitimate work-related purpose and… [that the requirement is] reasonably necessary… [for] the accomplishment of that purpose.” The Court went further and stated that it is “the employer [who] bears the burden of proving that it is impossible to accommodate the individual employee without imposing undue hardship or insurmountable operational difficulty.”

In applying this test the Court stated that it was not persuaded that the employer could not fulfil the object of stock-taking without accommodating the employee’s religious beliefs. The Court furthermore found that “there [was] no evidence that the employer suffered any hardship at all by [the employee] being absent” during stock taking on Saturdays. The Court based this conclusion on the fact that the employee in question did not attend the Saturday stocktaking sessions for a period of twelve months and that there was no evidence before the Court that the employee’s absence in any way impacted the employer’s ability to successfully conduct the stocktaking exercise. The Court accordingly found that the dismissal was automatically unfair since the employer could not prove that the discrimination was fair in terms of the Labour Relations Act.

The Labour Appeal Court upheld the order of the Labour Court and awarded the employee the equivalent of twelve months’ compensation for the automatically unfair dismissal.

It is important for employers to be aware that dismissing an employee for incapacity due to religious reasons will not often be deemed fair in terms of the Labour Relations Act and the Constitution, even if such dismissal is motivated by a legitimate commercial rationale. It would be potentially fair if the employer can show that it would incur undue hardship in accommodating such an employee.

For advice on this topic or assistance in any matters relating to labour matters, please contact our labour law specialist Clint van Aswegen at c.vanaswegen@bissets.com.

Clint van Aswegen | Partner

E: c.vanaswegen@bissets.com

Areas of Expertise: Commercial Litigation, Civil Litigation, Property Litigation, Employment Law, Insolvency Law, Litigation / Dispute Resolution

Who will take care of your children after your death?

The Children’s Act allows a parent who is the sole guardian or who has the sole care of a child to appoint a fit and proper person as the guardian or person or to be vested with the care of the child in the event of the death of the parent. This appointment must be contained in a will made by the parent.

A person appointed in a will acquires guardianship or care, as the case may be, in respect of a child after the death of the parent, provided that the person concerned expressly or by impliedly accepts the appointment.

If two or more persons are appointed as guardians or caregiver of the child, any one or more or all of them may accept the appointment except if the parent’s will provides otherwise.

The final decision concerning the appointment of a caregiver or guardian for a minor, whether nominated in a will or otherwise, rests with the High Court which is the upper guardian of all minor children. The guiding principle is the best interest of the child.

The child’s views must also be considered in any decision regarding the appointment of a caregiver or guardian. The Children’s Act states that every child of an age, maturity and stage of development able to participate in any matter concerning him or her has the right to do so in an appropriate way. There is no set age at which children can make their own decisions, but the older and more mature they are, the more their wishes will be considered.

For advice on the appointment of a caregiver or guardian for your minor children in your will and other issues relating to wills and succession planning, please contact our estates department professionals Roald Besselaar at r.besselaar@bissets.com or Elke Herbst at e.herbst@bissets.com.

Roald Besselaar | Partner

E: r.besselaar@bissets.com

Areas of Expertise: Conveyancing, Estate Law, Wills, Trusts, Curatorships, Property Law

Elke Herbst | Associate

E: e.herbst@bissets.com

Areas of Expertise: Wills, Deceased Estates, Curatorships

Residential Lease Agreements

Are you considering renting out your house or flat, or perhaps just a room? Investing in a well-drafted lease agreement and knowing your rights and obligations can save you a lot of trouble in the long term.

Why you need a well-drafted lease agreement:

In order to keep costs down, many landlords resort to making use of lease agreement templates which they find online or have been recycling for many years. These templates can create a false sense of security for those using them, when in actual fact many of the provisions they contain are not legally enforceable. Often the unenforceability of certain clauses in these contracts only become apparent when the relationship sours and either party to the agreement seeks to rely on them.

A well-drafted agreement is to the benefit of both parties (i.e. the landlord and the tenant) in that it will set out each party’s rights and obligations and regulate important matters that are often forgotten such as deposits and the investment thereof, notice periods, escalations, and what constitutes breach.

We are often approached by a party to a lease agreement to resolve a costly legal issue which could have been avoided if a well-drafted lease agreement was in place from the start.

What to do if you are already leasing out your property:

Should you already be renting out your property without a written lease agreement or using an externally-sourced template agreement, the Rental Housing Act provides that certain terms are deemed to apply to the lease regardless of what may otherwise have been agreed upon by the parties. For instance, the Rental Housing Act prescribes the procedure for incoming and outgoing inspections. Failure to adhere to these provisions may result in the landlord being unable to prove or claim for damage to the property caused by the tenant.

It is also possible to reduce an oral agreement to writing or to amend an existing agreement, provided that the amendments are in accordance with the law and both parties to the agreement agree thereto.

If your current lease agreement is coming to an end or is up for renewal, it is suggested that you review the current version of your agreement and update it, where necessary.

For advice on tenancy-related issues, including the drafting and review of lease agreements, or legal representation in evictions and associated matters, contact one of our skilled attorneys today to assist you.

Clint van Aswegen | Partner

E: c.vanaswegen@bissets.com

Areas of Expertise: Commercial Litigation, Civil Litigation, Property Litigation, Employment Law, Insolvency Law, Litigation / Dispute Resolution

Lili Von Geyso | Senior Associate

E: l.vongeyso@bissets.com

Areas of Expertise: Litigation / Dispute Resolution, Deceased Estates, Contractual Law, Labour Law, Notarial, Immigration Law

Amy Van Dyk | Associate

E: a.vandyk@bissets.com

Area of Expertise: Litigation / Dispute Resolution, Deceased Estates

Relocating to South Africa

Moving to a new country entails more than just packing your bags and boarding a plane. If you are contemplating a more permanent move to South Africa, applying for the correct visa should be at the top of your list of priorities.

If you are merely visiting South Africa, a Visitor’s Visa will be required and this type of visa is relatively easy to obtain. However, should you fall head over heels for the beauty of South Africa or a South African, you will require a longer-term visa.

A Visitor’s Visa affords you only three months in the country, although this can be extended, on application, by a maximum of three months. Unless you are comfortable with flying back and forth between your country of residence and South Africa on a regular basis, you will have to apply for a longer-term visa, or even permanent residency.

These longer-term visas each has its own specific set of requirements and hoops to jump through.

A Business Visa or Permit, for instance, can be applied for if you want to invest, or already have invested, in a business in South Africa. One of the requirements is that you invest R5 million in the business, either in the form of cash or new machinery or equipment. This is often enough to frighten off many entrepreneurs.

However, you can apply to the Department of Trade and Industry to have this requirement waived, if you can show that your business employs South Africans, creates work and will benefit the South African economy.

Alternatively, if you are in the fortunate position of already having a nest egg, you can apply for a Retirement Visa. This can be either on a temporary or permanent basis. Naturally, the requirements for permanent residency are stricter than those for a temporary permit. For instance, in order to obtain permanent residency based on retirement, you will need to prove that your monthly income is guaranteed life-long and is not capital-based. Capital-based income can be relied upon if applying for a temporary residency permit.

Should you fall in love, with a South African citizen and decide to get married, you will be able to apply for a Spousal Visa and, eventually, permanent residency as a result of your union.

Whether you want to retire in South Africa, work or start a business here, we will be able to assist you with the correct visa or permanent residency application.

In addition to this, our team of commercial and tax attorneys will assist you in complying with South Africa’s regulations in order to ensure that your business can thrive, you are tax compliant and that your financial immigration and exchange control issues are dealt with quickly and efficiently.

Lili Von Geyso |Senior Associate

E: l.vongeyso@bissets.com

Areas of Expertise: Litigation, Deceased Estates, Contractual Law, Labour Law, Notarial, Immigration Law

Henning Pieterse | Partner

E: h.pieterse@bissets.com

Areas of Expertise: Corporate & Commercial Law

Erlise Loots | Partner

E: e.loots@bissets.com

Areas of Expertise: Tax (Income Tax, Capital Gains Tax, Tax Directives re Capital Gains Withholding Taxes, Tax Clearances, and Estate Duty), Curatorships, Trusts, Estates, Exchange Control (involving remittance of funds abroad, formal emigrations, foreign investment allowances and the endorsement of title deeds), Non-resident services and advice