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The Protection of Personal Information Act (POPI) deals specifically with the subject of direct marketing, and strict rules are in place to regulate this. This is what you need to know:

1. Direct marketing includes any direct approach to generate business. This approach could be by email or other electronic messaging system, by ordinary mail or in person. It therefore includes all email marketing, SMS’s and WhatsApp’s, newsletters, drops, tele-canvassing and cold calling.

2. The Act deals separately with direct marketing by means of electronic communication, and “other” direct marketing.

3. “Other” (non-electronic) direct marketing is dealt with very briefly and we are all given the right to object to having our personal information used for this type of direct marketing. Once such an objection has been raised, a Property Professional may no longer use the person’s personal information for direct marketing.

4. Direct marketing by means of electronic communication is dealt with in more detail and the rules are a bit more complicated. The default position is that this type of marketing is prohibited, unless it is done in accordance with the rules laid down in the Act.

5. A distinction is drawn between those people who you have already dealt with in the context of your business, whose personal details you collected during your previous dealings with them, let’s call them “existing client contacts”, and people who you are looking to generate new business from, let’s call them “new prospects”.

6. You may continue to include “existing client contacts” in your direct marketing on 2 conditions:

6.1 You only may market products and/or services to them that are similar to those that were provided when you acquired their personal details; and

6.2 The person must be given the option to opt out with each marketing communication sent.

7. For “new prospects” you may only carry out direct marketing to them by electronic means if the person has consented to receive such marketing. If such consent is refused, you may not ask for consent again. In addition, these “new prospects” must be also be given the option to opt out with each marketing message sent.

8. The Act prescribes a form that a “new prospect” needs to sign to give their consent to allow their personal information to be used for direct marketing, and this consent form can be found here. I have also prepared an amended consent form, to make it more user friendly for your business, and this can be found here. Feel free to make the form your own, but be careful not to move too far from the prescribed wording.

9. When sending direct marketing material you must include your details as the sender. You must also give the recipient an address or other contact details where they could send a request to unsubscribe.

10. The bottom line is that you need to give all recipients of digital marketing material the opportunity to “unsubscribe” from your marketing list/database every time that you send marketing material, and if a person does unsubscribe, you need to respect this decision and do the necessary.

Deon Welz
Miltons Matsemela Inc.

A MEASURED RESPONSE TO THE STARTLING VIDEO DOING THE ROUNDS ON SOCIAL MEDIA

I recently received a WhatsApp message with a startling video from an organization called IRR, setting out how South Africans could lose their property in 5 easy steps if the proposed law on expropriation was passed, and how this would irrevocably change property rights, our country and our economy. I felt the video was sensationalist and needed a response. Unfortunately to do a proper job required a little longer than a 3 minute 40 second video. But anyway, here goes.

False Proposition 1

If the proposed Expropriation Act becomes law, property rights in South Africa will never be the same again.

This is not true. The proposed Expropriation Act of 2020 is fully in line with our Constitution as it now stands and therefore changes nothing to the underlying position which has prevailed since 1994. It was always on the cards that an Act of this nature would be passed. It is remarkable that it has taken so long to happen.

Steps 1 & 2

The Expropriating Authority must investigate the property and negotiate to acquire the property with the owner.

If no agreement is reached between the Expropriation Authority and the owner, an expropriation notice is issued where the owner is invited to make representations as to why they should keep the property or what amount of compensation should be paid.

Summing up the pre-expropriation process in one or two sentences does not do it justice. The process is clearly laid out in the Bill and follows a transparent and logical path where everyone whose rights are affected are included.

An expropriating authority has to complete a substantial amount of preliminary work, which includes the instruction of a valuer to provide a valuation of the property, before starting the expropriation process.

An affected owner must then receive a “notice of intention to expropriate” which must set out, amongst other important details, the reason why and the purpose for which the property is required, along with the intended date of expropriation. These reasons and purposes must obviously be legitimate and in line with the requirements of the Constitution, i.e., for a public purpose and in the public interest.

The notice must give the affected owner 30 days to raise objections and to make submissions. It also calls upon the affected owner to furnish the details of the amount of compensation which he believes to be just and equitable and the details of the holders of any unregistered rights in the property (so that their rights can also be protected).

Within 20 days after receiving this notice from the owner the Expropriating Authority must reply on the issue of compensation, and if not agreed, the Expropriating Authority must make a counter-offer “furnishing full details and supporting documents in respect thereof”. This is a serious process in which the Expropriating Authority cannot just thumb suck a number or allege that no compensation should be paid.

A further period of 40 days is then given within which the parties can negotiate an agreement.

If no agreement is reached, and if the Expropriating Authority still wishes to proceed with the expropriation, it can then make a unilateral decision to expropriate. This decision to expropriate must be motivated and the reasons must be published with the notice. The amount of compensation must also be explained.

Such a decision to expropriate would be an “administrative act” and as South Africans, we all enjoy constitutional protection against unjust administrative actions.

In terms of section 33 of our Constitution we all have the right to administrative action that is lawful, reasonable, and procedurally fair, and if this is not the case, this administrative action can be taken under review by a court and set aside.

In addition, in terms of section 34 of our Constitution we all have the right to have any dispute that can be resolved by the application of law resolved by a court.

These are fundamental rights which are entrenched in the Constitution and both of these sections are highlighted in the preamble to the new Bill. An expropriated owner can therefore always approach the courts to set aside an unjust expropriation, and in certain circumstances there will be scope to approach the courts to stop the process before any final expropriation takes place.

Step 3

After this process the Expropriation Authority can issue a notice of expropriation which will set out a date on which ownership of the property will pass to the new owner. There is no time period stipulated for this.

This is also correct. One must however note that a fairly long period of time will have passed since the initial notice of intention to expropriate was given. There will also have been many attempts for the parties to reach agreement and for the parties to place their positions on record, substantiated with whatever documentary evidence they might have available.

Furthermore, in this notice the Expropriating Authority must set out their offer of compensation and explain how the amount (if any) was decided upon. All supporting documentation relating to this decision must also be attached.

The process is accordingly transparent. Should an Expropriating Authority be acting in bad faith or unreasonably this should be able to be demonstrated on the basis of the submissions already on record.

Step 4 & 5

Property owners with means can seek mediation or approach the courts to challenge the validity of the expropriation. Such a dispossessed owner will bear the onus of proof. This will leave people without the means to fight the matter. In addition, if the property owner is unsuccessful, they will have to pay the legal costs of the state.

This is partially correct. Mediation is specifically provided for because this is a cheaper process with less formality, and the purpose is to encourage the parties to reach agreement between themselves. If mediation fails, the parties can approach the courts.

It is true that the onus to prove their case will be on the expropriated owner and that these proceedings can be expensive. There is however no doubt that there will be many human rights and public interest organizations who will assist expropriated owners with these cases until such time as the courts have passed judgments and created precedents which will be able to be applied to other cases. These precedents will give us guidance as to how the courts view these matters, and this will assist parties to reach agreement.

In addition to this, on the issue of costs, the courts always have a discretion, and because of the political sensitivity and importance of these judgments, and provided that the expropriated owner has not acted unreasonably, I would not be surprised to see a court making an order in terms of which each party should pay their own costs, even if the landowner fails.

In Conclusion…

The fairness of the expropriation process depends on the state acting reasonably and honestly, and on the courts upholding our constitutional rights. For this process to turn into a plunder of assets, both of these attributes must be lacking. While there might be a question mark over the motives of certain highly placed politicians, our courts have thus far carried out their civic duty and upheld our constitution admirably.

Throughout the world, countries have laws which entitle the government to take assets from their citizens for the public benefit and South Africa is no different. The current expropriation laws that we have in place date back to 1975 and are long overdue for an update. Having regard to the specific provisions of our Constitution which deal with expropriation, this proposed Act was to be expected.

Finally, if one looks at the sections of the Act which deal with the calculation of compensation, it is clear that expropriation without compensation is intended to take place only in exceptional circumstances. If one needs more evidence of the government’s current policy towards land redistribution you need look no further than the budgeting of R9.3 billion to finalize 1409 Land Restitution claims over the next 3 years. Why would the government be budgeting to pay for land if they intended to pass a law that would entitle them to take it away without paying for it? It is therefore highly unlikely that this piece of legislation will change the nature of our economy or our country.

Deon Welz
Miltons Matsemela Inc.

THE FIRST STEPS TOWARDS COMPLIANCE

During the next few weeks we will be focussing on the implementation of POPI in the businesses of estate agencies. This is to ensure we are all ready for full compliance when the period of grace ends on 30 June 2021.

While we do so we need to keep in mind the intention behind POPI, which is to balance 2 competing interests. These are our individual constitutional rights to privacy (which requires our personal information to be protected); and the needs of our society to have access to and to process (work with) our personal information for legitimate purposes, including the purpose of doing business. While the implementation of the new laws will require some effort from everybody, if we all play by the rules this will be a worthwhile exercise.

In certain circumstances POPI does allow us to access and work with the personal information of people without their consent, but this is the exception. The golden rule is that all businesses need to obtain consent from their customers to use their personal information in the context of their business relationship at the time that the customer’s personal information is collected.

For estate agencies, this could be done by the signature of a stand-alone generic blanket type consent, or, if the client is a seller or a landlord who is signing a written mandate, by the inclusion of such a consent in the mandate. We would also recommend the inclusion of such a consent as a standard clause in your deed of sale/offer to purchase and in your lease.

The generic blanket written consent in the form of a stand-alone document is available on our website. You can access it by clicking this LINK. You are welcome to download it and customise it to make it your own. Please exercise caution if you change the wording, as the document has been drafted to give maximum compliance with the minimum of words.

The standard clauses we suggest including in your mandates, deeds of sale and leases are set out below. You will note we have extended the consent to allow you to discuss matters arising from your mandate with your trusted legal advisors.

CLAUSE TO INSERT IN SALE OR LEASE MANDATE:

I/we hereby give AGENCY NAME consent to process my/our personal information, in accordance with the provisions of the Protection of Personal Information Act, for all purposes related to the carrying out of this mandate. Such consent shall extend to the sharing of my/our personal information with your trusted legal advisors who you may approach for advice or assistance during the provision of your services to me/us.

CLAUSE TO INSERT IN DEEDS OF SALE:

The Seller/s and the Purchaser/s hereby give their consent to the estate agency/ies involved in the sale, and to the Conveyancing Attorneys who will register the transfer of the property, to process our personal information for all purposes related to this sale, in accordance with the provisions of the Protection of Personal Information Act.

CLAUSE TO INSERT IN LEASES:

The Landlord/s and the Tenant/s hereby give their consent to the estate agency/ies involved in the lease, to process our personal information for all purposes related to this lease, in accordance with the provisions of the Protection of Personal Information Act. Such consent specifically includes the consent to work with and disclose our bank account details to facilitate the payment of the deposit and the monthly rent to the Landlord/s, and for the refund of the deposit to the Tenant/s.

You will note that we have included a specific consent to process information related to the clients’ bank account in the clause suggested for leases. This is in compliance with section 106 of POPI.

We hope that this will assist you with your efforts in complying with the new laws. Our next instalment of POPI compliance will follow in a few days.

Kind regards

Deon Welz
Miltons Matsemela Inc.

When you buy or sell your “Home Sweet Home”, particularly for the first time, the process can seem complicated, the terminology confusing, and the risks of making a costly mistake intimidating. You are after all dealing with quite possibly your most important asset!

To help you navigate the process, as either seller or buyer, here are some common questions, with answers.

1. Where can I get a simple guide to the process?

When you come down to the details it certainly is important to get everything right, but a simple, broad overview to start with will go a long way to de-mystifying the process and to setting you safely onto the right path.

Have a look at the Law Society of South Africa’s “Buying or Selling a House: What You Need to Know”. Download it in any of four languages here.

Simply and clearly written, the guide is full of really important information and advice, both practical and legal – take the time to read it in depth!

Turning now to a few of the other more common questions you will no doubt have…

2. Do I really need legal advice?

Our law reports are full of court disputes that could have been avoided with a simple upfront request for legal advice. The danger of not doing so is that many pitfalls await the unwary and you will be held to anything you agree to. It’s only sensible therefore to take advice early – well before you appoint an agent, start looking for a house, or get involved in submitting offers and negotiating sale agreements.

Not having your “offer to purchase” or “agreement of sale” legally checked is a recipe for disaster. Once you sign on the dotted line you are on the hook for everything in the document. With very limited exceptions our law holds you to your signature and it is no good saying later “But I didn’t read the document, it all looked like the normal standard stuff” or “I had no idea I was agreeing to term x or condition y” – tough, you are bound.

Bottom line – chat to your attorney before you do anything else!

3. Whose name/s should I put the property in?

Should you buy the house in your name or in your spouse’s name? Should you buy jointly? Does it matter what marital regime applies to your marriage? What if you are in a permanent cohabitation arrangement rather than a formal marriage? Or perhaps you are wondering whether you should put the house into the name of a company or family trust.

Your choice now will have far-reaching legal, tax and practical consequences; and with some complex areas of law involved, specialist upfront advice is a no-brainer.

4. What else should I ask my attorney?

Common areas of dispute and litigation include “bond clauses” and “72-hour clauses” in sale agreements, confusion over the need to identify or disclose both visible and invisible defects, disagreements over what is a “fixture” that comes with the house and what isn’t, misunderstandings over neighbours’ rights to build and encroach on views and the like, not checking for building plans and municipal Certificates of Occupancy (you will have a problem if a previous owner built or extended without proper plans), not checking the zoning and title deed restrictions (which could put a damper on any plans you have to extend, go up a storey, build a home office, or the like), servitudes or other rights of use over the property, limited “home business” options and so on.

(Tip: Take lots of “before and after” photos of the house and property with your cell phone – a dated picture is hard to argue with!)

Other “homework” items to ask about – what paperwork you will need (do you know where your title deed is?), how long your particular transfer is likely to take (and a linked question “what date of occupation should we agree on?”), to whom deposits and any occupational rental must be paid (and who gets paid the interest earned on monies held in trust), what compliance certificates you need, how to find the best bond rates, whether you might qualify for a FLISP (Finance Linked Individual Subsidy Program) subsidy, how to cancel and open municipal service accounts, the rights of any occupiers (not just tenants, also “unlawful occupiers”), and so on – you will have your own list.

5. What about planning my finances?

Ask your lawyer for a breakdown of who will pay what and when. Think deposits, bond and transfer costs, transfer duty, agent’s commission, bond settlement balances and so on. Cash flow forecasting, and a clear understanding of the timelines involved, are critical here to avoid unpleasant surprises down the line.

As a buyer, factor into your “affordability budget” not only bond repayments and your projected regular monthly costs (rates, services, insurance premiums, security costs etc) but also an emergency fund to cover any unexpected costs that may crop up.

On the subject of finances, cyber-fraud is a growing issue when it comes to electronic communications and payments so agree with your lawyer on measures to ensure that neither of you falls victim. Fraudulent “here are my new bank account details” emails are flavour of the month, but the scams are constantly evolving.

6. Should I buy-to-let in the current market?

Buying-to-let can be an excellent investment channel, and for a whole host of reasons this time of pandemic and disruption has opened up an abundance of opportunities to prospective landlords. Just don’t rush in blind – choose the right property in the right area, go into the process with your eyes fully open, and in particular beware the common pitfall of failing to minimise your risk of having to fight a difficult, destructive or non-paying tenant. Residential property occupiers enjoy strong protections against eviction even in normal times, and these protections are even stronger for the duration of the National State of Disaster.

It is essential also to understand the impact of the Rental Housing Act on the landlord/tenant relationship – do you know for example the specific requirements around rental deposits and joint property inspections? “Ignorance of the law” is no excuse, and non-compliance could cost you dearly.

7. Who appoints the conveyancer and why do I need one?

In a nutshell, you need to appoint a specialist lawyer (a “conveyancer”) to pass transfer of ownership from the seller to the buyer in the Deeds Office. That’s because only on registration of the transfer does the buyer become the legal owner of the property.

As a seller, insist on choosing the conveyancer – pick a firm you can trust to act with professionalism, integrity and speed.

8. What about buying into a complex?

Owing a house and living in a community scheme come with substantial benefits, just understand exactly what you are letting yourself in for both on a practical level and in regard to the various rules and regulations you will be agreeing to.

Our courts regularly have to sort out bitter (and unnecessary) disputes around owners desperately – and almost always unsuccessfully – trying to get out of complying with body corporate and Home Owners Association rules. Common areas of complaint are home businesses, pet ownership and control, vehicle parking, noise, nuisance objections and the like.

9. What records and paperwork should I keep?

One thing is certain – the document you don’t keep on file is the one you will be desperately searching for in 10 or 20 years’ time! So when in doubt about a particular item keep it, but at the very least have a file (backed up electronically) with –

• Your title deed (also called a “deed of transfer”) from the conveyancer. If your property is bonded the bank will keep the original in which event keep a copy plus a note as to which bank has the original. If you lose your title deed you can get a copy but there are delays and costs attached which you really want to avoid when you come to sell again down the line.
• The full signed agreement of sale and annexures,
• The conveyancer’s final statement of account and associated invoices,
• All bank loan and bond documents,
• Your municipal Certificate of Occupancy if you undertook any building work (construction, renovations, extensions etc),
• A running list with supporting documents of all tax-relevant expenses. For example, keep a running Capital Gains Tax schedule with –
  • A list of expenses relevant to the house’s “base cost” (purchase price, transfer costs and legal fees, bond costs, agent’s commission, costs related to the sale or purchase like advertising, architect’s fees etc) and
  • Ongoing capital expenses i.e. improvements and renovations (but not repairs or maintenance).
• “Before and after” photos of the house and property,
• Ask your lawyer if there is anything else you should keep relevant to your particular property and transfer.

This article was published recently by LawDotNews. We credit the original author.

There is not much to report on for the property sector following today’s budget speech by Minister Mboweni. Transfer duties will remain unchanged.

It was nice to hear that R9.3 billion had been allocated to finance 1409 land restitution claims, as this means that land will be redistributed, and owners will be compensated. It was however disappointing that R7 billion had to be allocated to bail out the Landbank.

Other general points of interest were:

• the shift of the personal tax brackets upwards by 5%. This will mean that all of us who are taxpayers will pay slightly less tax;
• the reduction of company tax by 1% to 27% (but this will be partially offset by a limitation in interest deductions and assessed losses);
• an increase in the fuel levy by 27c per litre; and
• (as usual) an 8% increase in excise duties on alcohol and tobacco.

Warmest regards
Miltons Matsemela

We have received reports from literally hundreds of clients who have recently sold their properties in Cape Town advising that, months after the transfer was registered, they are still receiving a municipal account. More alarmingly, the account now reflected a substantial amount owing by themselves to the municipality.

We have now received a communication from the City clarifying the position. According to their media release they have identified the source of the problem and they believe the situation will be rectified by the end of February.

We assume this means that by March the municipal accounts will be opened in the name of the new owners who will then receive their first (large) bill for the period from date of transfer until now. The previous owner will then also be refunded the amount paid to obtain the rates clearance certificate for the period beyond the date of the transfer.

While this process plays out, the municipality will not be wasting their time trying to collect the outstanding amounts from the previous owners. In addition, the municipality say they have sent SMS notifications to all the buyers and sellers who are affected advising that there would be no disconnection of services while this matter was being resolved.

Our advice to our clients therefore remains the same. Sellers must not pay anything to the municipality to settle these accounts, and neither should the buyers, as any payments on the seller’s account will be refunded to the seller when the change over takes place.  Furthermore, parties must just be patient with the process, the municipality will resolve the issue as soon as possible, as they can’t afford to carry on without this source of income.

Warmest regards
Miltons Matsemela

No one wants to contemplate their own passing, but the reality is that sooner or later it is inevitable, and particularly in these dangerous times we need always to be prepared.

The loss of a loved one is always distressing. It can however be compounded by the challenge of dealing with their assets.

Few people appreciate all the costs involved in settling an estate. Understanding these expenses and planning for how to deal with them can make a big difference to those left behind.

Executor’s fees and costs

Every estate must be wound up by an executor. Ensure that in your will you nominate an executor you can trust to act with integrity, professionalism and speed.

An executor can charge a maximum fee of 3.5% plus VAT. That equals 4.025% of the value of the estate. Depending on the size and complexity of your estate this fee may be negotiable.

The executor will also incur costs such as advertising to find any outstanding creditors, bank charges, accounting fees, conveyancing on the transfer of property and paying the fees due to the Master of the High Court. Together, these could run into tens of thousands of rands.

Taxes and estate duties

The South African Revenue Service (SARS) levies 20% estate duty on the value of any estate, but there is no estate duty payable on an estate with a net value below the R3.5 million abatement (allowable deduction). Any amount above R30 million will be taxed at 25%. An estate worth R40 million will therefore have to pay estate duties of R7.8 million (R5.3 million on the first R30 million, after the R3.5 million abatement, and R2.5 million on the next R10 million).

These taxes will not, however, be paid on any assets left to a surviving spouse. In that case they effectively ‘roll-over’ and will only be charged upon the spouse’s death.

The estate will also have to pay capital gains tax on any assets that are sold. SARS will also conduct a final income tax assessment.

In addition, South Africans need to consider that if they have assets in other parts of the world, they may be liable to pay estate taxes in those countries as well. There are double taxation agreements in place with many countries that prevent most assets from being taxed twice, but where taxes elsewhere are higher than in South Africa, the estate will still have to pay the difference. Inheritance tax in the UK, for instance, is 40%.

Outstanding debt

The estate will have to settle any debt such as credit cards, loans, or bonds on property. Interest on these debts does not stop accruing when someone passes away, so it is best to deal with them as early as possible.

It is most critical to consider how to handle home loans, especially if they are held over a property in which surviving family members are still living. Sometimes these individuals may not qualify to take over the bond due to their own financial position, which means that the house may have to be sold if the debt can’t be settled.

Being prepared – check what cash the estate will have

Even though an estate may have sufficient assets to meet all of these expenses, it can still be a problem if it doesn’t have enough available cash. That is because the executor may have to sell assets to free up money.

This not only leads to potential extra costs and taxes but can be traumatic if something like a house where a loved one is living or a car that someone needs for transport has to be disposed of. This is why it is important to prepare an estate to make sure that there is enough cash available.

One way of doing this is to take out a life insurance policy that will pay cash into the estate. This will ensure that your family members aren’t left with a potentially major financial burden and face additional stress after your death.

The above is of necessity just a summary of the cost considerations involved, so speak to your attorney about how your will and estate are structured and how you can plan to meet all the costs.

This article was published recently by LawDotNews. We credit the original author.

If you are taking advantage of our current low interest rates and reduced selling prices to buy a property, make sure that you establish the seller’s marital status with something more than what the seller tells you.

Your risk comes in if the seller is married in community of property. That’s because, whilst our law generally allows spouses in such a marriage to “perform any juristic act with regard to the joint estate without the consent of the other spouse”, there are exceptions.

And one exception relates to immovable property. A spouse needs the written consent of the other to sell, mortgage or burden the property (by granting a servitude over it for example). Without that written consent the transaction is void, unlawful and unenforceable.

Which is where the danger comes in. Consider this scenario – you pay for and take transfer of a property from a seller who you think is unmarried, but a spouse suddenly appears and says “I never consented to that sale so it’s void. The transfer to you is cancelled so out you go and good luck getting your money back”. What now?

Competing rights and a balancing act

There is of course a fine balancing act for courts involved here – on the one hand, the rights of the non-consenting spouse and on the other hand your rights as a good-faith buyer from a seller who you believed to be unmarried.

A recent Supreme Court of Appeal (SCA) judgment addressed exactly that situation.

“But I thought I was buying from an unmarried seller”

• A husband married in community of property sold and transferred a house to a buyer in 2009. At the time, his wife was not living in the house, having moved to another part of the country due to old age.
• When the seller passed away in 2013 his wife was appointed executrix of his deceased estate. Some four years later she successfully applied to the High Court for cancellation of the deed of transfer on the basis that the sale had been without her knowledge or consent.
• The buyer appealed to the SCA on the basis that the wife’s consent to the sale should be “deemed” to have been given in that the relevant legislation provides for such deemed consent where a buyer “does not know and cannot reasonably know that the transaction is being entered into contrary to [the requirement for written consent]”.
• He had, said the buyer, acted bona fide (in good faith) as he had not known of the marriage: “At the time I purchased the property from the deceased/seller, he was staying alone in the said property and he also confirmed to me that he was not married. He signed the deed of sale and also the transfer documents alone as unmarried.”

What the buyer must prove

The buyer had to prove that he did not know, and could not reasonably have known, that consent was needed but lacking.

What the Court here needed to decide was whether the buyer should at the time of the sale have known of the marriage and the lack of written consent. “A duty is cast on a party seeking to rely on the deemed consent provision” held the Court “… to make the enquiries that a reasonable person would make in the circumstances as to whether the other contracting party is married, if so, in terms of which marriage regime, whether the consent of the non-contracting spouse is required and, if so, whether it has been given.”

Finding that the buyer had indeed proved (1) that he did not know that the deceased was married and (2) that he could not reasonably have known this, the SCA allowed the appeal and the transfer to the buyer stands on the basis of deemed consent by the spouse.

The facts of each case will be different, and it is important to bear in mind that in this particular matter the husband’s claim to be unmarried was supported not only by the absence of any sign of a wife but also by two official documents – the deed of transfer and the power of attorney to pass transfer.

The bottom line is that as buyer you must make “reasonable enquiries” as to the seller’s marital status and as to whether the other spouse’s written consent to the sale is needed.

This article was published recently by LawDotNews. We credit the original author.

A recent High Court decision has been widely viewed as an important victory for the rights of unmarried opposite-sex life partners. Until now, if one such partner died intestate (without making a will), the other could not inherit on the same basis as could a married spouse. Nor could the surviving life partner claim maintenance from the deceased estate (whilst a surviving spouse can claim).

The High Court’s pronouncement that the relevant legislation was unconstitutional and invalid in this regard must still be confirmed by the Constitutional Court, but it certainly is a clear indication that our courts want to see our laws amended to protect the rights of such couples.

The life partner who will now inherit

• An unmarried 57-year-old man died leaving substantial assets. Both the executor of his deceased estate and the Master of the High Court rejected, primarily on the basis of existing law, his surviving (female) partner’s claim to inherit from the estate.
• She approached the High Court with her claim, and the Court found on the facts that the couple had been “partners in a permanent opposite-sex life partnership, with the same or similar characteristics as a marriage, in which they had undertaken reciprocal duties of support”.
• The provisions of the Intestate Succession Act and the Maintenance of Surviving Spouses Act were, held the Court, unconstitutional to the extent that they excluded opposite-sex permanent life partners from their provisions.
• The practical effect is that the surviving partner will inherit as though she was a spouse.

But, if you are in an opposite-sex life partnership –

1. You should still make a will

There’s no guarantee that the Constitutional Court will confirm the declaration of invalidity, but more importantly there are very sound reasons for everyone – married or not – to leave behind a valid and properly-drafted will.

It is quite possibly the most important document you will ever sign. Without a will, you lose your right to choose who inherits what (your spouse for example will get only a “child’s share” on intestacy), you have no say in who will be appointed as the executor of your deceased estate, and you risk exposing your surviving loved ones to the trauma and expense of family dispute and litigation.

In the context of life partners, perhaps you want your surviving partner to inherit everything, or perhaps you don’t. The only way to ensure your desired outcome is to specifically provide for it in your will.

2. You should still have a cohabitation agreement

An enduring myth in our society is that our law recognises the concept of a “common law marriage”. There is no such thing in South African law and whilst there are some limited statutory protections for life partners, if and when you part ways you could well find yourselves embroiled in a prolonged and bitter dispute. Quite possibly one of you will be left destitute after many years of “living as man and wife”.

The quick and easy solution is to enter into a cohabitation agreement, it’s the best way to safeguard both of your rights (personal as well as financial).

This article was published recently by LawDotNews. We credit the original author.