Monday 25 June 2012

Judge warns: "Don't use untrained advisers to draft your will"

The cost of getting your will wrong


Monique Vanek

24 June 2012


Judge warns against using untrained advisers to draft your will.


JOHANNESBURG - Dealing with the death of a loved one isn't easy but it can be made harder if they never drafted their will or drafted it incorrectly.

Judge Leach in his June 1 ruling over a contested will warned: "It is a never-ending source of amazement that so many people rely on untrained advisors when preparing their wills, one of the most important documents they are ever likely to sign. This is by no means a recent phenomenon. Some 60 years ago, in Ex Parte Kock NO,1 a High Court decried the number of instances in which wills had to be rejected as invalid due to a lack of compliance with prescribed formalities and the regularity with which the courts were being approached to construe badly drafted wills, before urging intending testators ‘in their own interests as well as in the interests of those whom they intend to benefit when they die . . . to consult only persons who are suitably trained in the drafting and execution of wills and other deeds containing testamentary dispositions'. Despite this, the courts continue all too often to be called on to deal with disputed wills which are the product of shoddy drafting or incompetent advice. This is another such case".

In this case the testator - the deceased Dr Raubenheimer - made two mistakes in drawing up his will in which he bequeathed his estate to his spouse, Piet Nel, project director: Tax Suite at Saica told MoneywebTax in this month's Integritax Podcast.

Dr Raubenheimer did not sign his last will (testament) in the presence of two witnesses as required by the Wills Act and he did not attach a list of assets referred to in his will together with the persons meant to inherit it, says Nel.

As a result Dr Raubenheimer's children were able to contest that their father's will was invalid and claim he died intestate - without a legal will. A view the Gauteng High Court supported.

This meant that Raubenheimer's surviving spouse had to appeal the court's decision to order the master to accept the will as her husband's last will and testament.  To do this she had to prove (and was successful in doing so) to the Supreme Court of Appeal that the document was intended to be her husband's last will.

Nel says the Raubenheimer case demonstrates the importance of following the correct legal procedures when drawing up your last will and testament as failure to do so could lead to a long and costly court battle - the Raubenheimer case took five years to settle.

It could also lead to huge estate duty implications and trigger capital gains tax. For example, in the Raubenheimer case if the estate had gone to the spouse no tax would have been payable, if it went to his children there would have been capital gains tax payable by the estate.

Nel suggests if you don't know what the correct procedures are make use of professionals.

He also recommends you get a second and third opinion and read as much as you can about wills before drawing up your own.

Know what the Wills Act says about the minimum requirements needed in drawing up a will, he adds.

For those wanting to keep abreast of these and other developments, Saica recently launched a web-based Tax Suite available for an annual subscription fee of R1 499 to non-members and R899 for existing members.

Write to Monique Vanek: monique@moneywebtax.co.za
For weekly tax advice subscribe to MoneywebTax.co.za's FREE newsletter.

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Tuesday 03 May 2011

HOW EMPLOYEES SHOULD PREPARE FOR A DISCIPLINARY HEARING

A. INTRODUCTION

1. Many employees find themselves faced with the prospect of appearing at a disciplinary hearing. Unless they are members of a trade union that is present in the workplace, they find themselves without any professional assistance and have to rely on information gained before the hearing and at best the support of a colleague at the hearing itself.

2. A disciplinary hearing can be a make-or-break situation for many an employee. It can mean the difference between continued employment or searching the market for months, even years, looking for another job. It is not a process to be taken lightly. You must prepare for the hearing like a professional. When you enter the room in which the hearing is to take place, you must be thoroughly equipped for what you need to do. In a sense, what this article attempts to do is to make you your own lawyer to the extent that it is possible in such a short time.

3. Many employees have approached me for assistance in this situation. Their dilemma is that unless they have a trade union representative or colleague with experience of these things, they cannot have any expert representation. They are vulnerable - Daniel facing the lions. That is why I have prepared this guide to assist them in the absence of an attorney or labour expert at their side when appearing before a disciplinary hearing.

4. Please do not be put off by what you might think are a complicated set of requirements. I have simplified these requirements and, in their essence, the requirements themselves are not complicated. The hearing is not a high court trial and no one expects you to conduct yourself as a professional advocate. On the other hand it can only be to your benefit if you acquaint yourself with the way disciplinary hearings work. That will enable you to present your case in the strongest way you can.

B. WHAT SHOULD HAPPEN BEFORE A DISCIPLINARY HEARING ?

1. Your employer needs to properly investigate the allegations against you to satisfy itself that there is a reasonable amount of evidence against you;
2. you then need to receive an official written notification of the disciplinary enquiry. This notification should indicate the time, date and place of the hearing.
3. You should have at least three business days to prepare your defence;
4. the notification needs to set out the charges against you. The charges should be clearly phrased to ensure an understanding of the exact allegation against you. It should also refer to the clause of the employer's code of conduct that creates that offence, unless the offence is one which all reasonable persons would recognise as such;
5. the notification must also set out your other rights, namely –

5.1 your right to be present and to state your case;
5.2 your right to representation by a trade union representative or a colleague;
5.3 your right to present evidence in your defence;
5.4 your right to call witnesses;
5.5 your right to respond to and cross-examine the employer's evidence and witnesses;
5.6 your right to an interpreter, if required.

C. WHAT HAPPENS AT A DISCIPLINARY HEARING ?

[Notes:
1. The description below is a procedure that should be followed in medium to large organisations. In smaller organisations, it is impractical to comply with all these guidelines but the spirit of a fair hearing in which you receive full opportunity to state your case should nevertheless be satisfied.
2. It is not for you to prove your innocence. The employer bears the burden of proof to establish your guilt. Within the constraints of integrity, do not voluntarily offer evidence of your innocence until the employer has provided evidence that strongly indicates evidence of your guilt.]

1. The major parties at a disciplinary hearing consist of –

1.1 an impartial chairman. He should not have been involved in any dispute between yourself and your employer;
1.2 the employer's representative - usually the human resources representative or a senior and uninvolved line manager; and
1.3 you, the employee, and preferably also your trade union representative or colleague to assist you.

2. The Chairman should -

2.1 introduce himself and the parties present;
2.2 ensure that the time, place and persons present are duly recorded;
2.3 state the purpose of the enquiry;
2.4 ensure that a record of the proceedings is kept during the hearing (you could do well to bring along your own tape recorder so that you have your own independent record of the proceedings;
2.5 satisfy himself that all your rights have been recognised;
2.6 request you to indicate whether you believe you are guilty or not guilty of the charges.

3. If you plead guilty (not advisable except in the clearest of cases), the chairman will have to decide what sanction (punishment) to apply and therefore should –

3.1 satisfy himself that you understand the consequences of the guilty plea;
3.2 ask the employer's representative to offer facts or reasons why you should receive a heavy sanction (aggravating factors);
3.3 ask you to offer facts or reasons (mitigating factors – see Section H below) why you should receive a light sanction (eg a warning);
3.4 have a copy of the disciplinary code and procedure and be provided with your disciplinary and service records;
3.5 either announce the sanction immediately or adjourn the hearing to a predetermined time in order to do so;
3.6 if the sanction is dismissal, the chairman needs to remind you of your right to appeal either in terms of the internal disciplinary procedure or else, if this does not exist, to the CCMA;
3.7 advise you to obtain your written dismissal notice and certificate of service from Human Resources. You should also tie up any other loose ends with your Employer at this time;
3.8 draw up a disciplinary enquiry record and report & date it before providing a copy of it to the employer and yourself.

4. If you plead not guilty, the chairman should follow the procedure below –

4.1 You should be asked to hand in your “bundle of documents” (ie all the documents, emails etc relevant to the issue, with page numbers and a contents page giving the name of the specific document as well as its page number) to both the chairman and the employer’s representative.

4.2 After the employer’s representative has given its opening statement (if it chooses to do so) you should present your own opening statement, in which you outline your case briefly. It is important for you to do this. I outline in paragraph D below what you need to do to prepare it.

4.3 The employer and then you will in turn present your substantive cases by way of the evidence of as many witnesses as you each intend to call. I outline below in section F what you need to do to prepare for this.

4.4 You will be able to cross-examine each of the employer's witnesses (See section E). They will have the same opportunity when you call your witnesses.

4.5 Once all the witnesses have given evidence in turn, the employer will be given a chance to make a closing statement after which you will be able to do the same. The employer will again be able to address the hearing, but only concerning new points that you have raised in your closing statement. I outline below in section G what you need to do to prepare this.

4.6 The chairman should then –

4.6.1 ensure that the parties are satisfied with the manner in which the enquiry has been held;
4.6.2 ensure that there is no further evidence to be presented or questions to be raised;
4.6.3 either announce his verdict immediately or adjourn the hearing and said a time for recommencement to give him a chance to consider his verdict;
4.6.4 if the latter, recommence the hearing and announce his verdict;
4.6.5 if the verdict is not guilty, that is the end of the matter;
4.6.6 If the verdict is guilty, the chairman should follow the steps described in clause 3 above.

D. PREPARING AN OPENING STATEMENT

1. The Importance of an Opening Statement:

The opening statement is often neglected. Its tactical value is under-estimated. The opportunity to use an opening statement begin the process of persuasion is often not exploited fully. It can play an important role in that process. It introduces to the chairman the issues and the evidence to be led on the issues, making the chairman's task easier and more focused. You have a right to make an opening statement. Insist on being able to exercise that right.

2. The Purpose of the Opening Statement:

This is to explain what the case is about. It enables the chairman to place the details of the evidence given in the context of your case as you have already explained it. You give him an indication of what case you intend to establish and how you intend to do so with the evidence at your disposal. Failing this, the chairman will not know beforehand the facts that will be proved and the evidence available to establish them. If he receives the evidence piecemeal, he can easily obtain a skewed view of the overall picture. Your opening address will enable him to have a better grasp of the issues so that the significance of each item of evidence will be apparent.

The opening address is not an argument. It is an opportunity to outline the facts that you hope to prove. It must be brief (± 5 mins). State the facts simply, without adornment, so that they speak for themselves. Deal candidly with any weaknesses in your case while coupling it with a compensating fact that diminishes the damage and gives the chairman a context in which to place the weakness servitude has less of an impact on your case. Avoid argument and exaggeration. Use a moderate - even understated - tone.

3. The Structure and Content of an Opening Statement

An opening statement must have a logical structure. It needs to explain a plain story in clear language. It must also put all the important part of the story in a proper context. There must be order and clarity. I suggest the following –

3.1 State what the issue is: eg “Mr Chairman, this hearing is about my alleged misconduct in that I am supposed to have…… [here describe the central allegation/s against you]”.
3.2 Summarise the material facts of what your employer is alleging and point out that it is your employer’s responsibility to prove those facts “on a balance of probabilities”. This means that your employer’s allegations must be at least 51% more likely than that your explanation of what happened.
3.3 Summarise the material facts you are alleging. Consider setting out the timeline of the relevant events. If you like, do it in a written schedule and hand this to both the chairman and your employer’s representative.
3.4 Identify the witnesses you will call and summarise the evidence that each will give.
3.5 Finally, state to the chairman your relief sought. In other words, what you would like the chairman’s findings to be. I presume it would be a finding of not guilty.

E. PREPARING YOUR QUESTIONS FOR THE EMPLOYER'S WITNESSES (Cross- Examination)

1. This phase of the hearing takes place after your employer has finished asking the questions of its witness. He will have done this in order to enable the witness to provide the facts of which he has knowledge to the disciplinary hearing. You now have a chance to ask that witness questions that will serve to challenge the truth of what he has been saying or to evoke answers to issues that he has failed to mention. This is known as cross-examination.

2. You cross-examine opposing witnesses in order to make your own case better.

3. The purposes of cross-examination are pursued through questions which –

3.1 encourage or oblige the witness to provide favourable evidence for you;
3.2 test and even hopefully discredit the reliability of the evidence the witness gave when being questioned by the employer's representative (eg contradictions);
3.3 put your version of the disputed facts to the witness so that the witness may comment. It is important to do this because, if you do not, the fact that you have not allowed the employer's witnesses to comment on allegations and/or evidence that you intend to present, will count against you.

4. Cross-examination, like an opening statement, is a tool of persuasion. It is used to try and have your evidence accepted and the employer's evidence rejected. It is a tough assignment. Few witnesses are suddenly likely to give you a gift of agreeing to the submissions that you put to him in support of your own case. This is especially true if his change of evidence will be against his own employer.

5. While the employer’s witness is giving his “evidence-in-chief”, you should take notes. Create a margin down the side of the page (most professionals prefer the right side for some reason) so that you can mark any part of the witness’s evidence that you want to challenge in cross-examination.

6. Your first priority in cross-examination should be to entice favourable evidence from an opposing witness. At the least you will need to –

6.1 be courteous to the witnesses;
6.2 lead the witness to the answers by asking questions that suggest the answer you are seeking;
6.3 be satisfied with a significantly favourable answer. Don’t push things too far. You might lose the advantage by doing so. A bird in the hand is worth two in the bush. Do not flatter the witness by continuing an unrewarding cross-examination. Many a good cross-examination has been ruined by a question too many;
6.4 keep the questions short, asking for, or suggesting, one fact at a time.
6.5 avoid arguments with the witness. Ask questions in such a way that you invite facts rather than arguments or explanations.




F. PREPARING YOUR QUESTIONS FOR YOUR OWN WITNESSES (Evidence-in-Chief)

1. This is the most important phase of the hearing for you. It enables you to put forward your own version of the facts, answer the employer's version and strengthen your own witnesses.

2. The biggest danger in this phase of questioning is asking what is called a “leading question”. This is simply a question that indicates the answer that you are seeking from the witness. The facts have to be provided by the witness not you. You must not therefore suggest what he should say in reply to your question. The absence of leading questions enables the chairman to evaluate the evidence of your witness on its own merits instead of in response to your own suggestions. If you start your questions with where? When? What? Who? Which? How? or Why? you will avoid leading questions.

Another way of avoiding leading questions is to present the witness with an alternative. Instead of asking “you saw him drive away didn’t you ?” ask “did you or did you not see him drive away?”

3. You must plan the following carefully –

3.1 be clear in your mind what facts you want to establish with each witness;
3.2 plan a structure for the questions to put each witness. (Do a rehearsal with your witness if you can.) This normally involves –
3.2.1 introducing the witness. (ie give some easy questions – name? address? Etc) ;
3.2.2 have the witness explain why he/she can testify to the facts you want to submit to the hearing (eg she was at the scene, works in the same department, etc.);
3.2.3 deal with the subjects you have hopefully previously agreed with the witness;
3.2.4 lead the evidence on each topic in chronological order (exhaust the evidence on a given topic before moving onto the next; ie keep each topic in a separate category);
3.2.5 if necessary, deal with the employer's version (if you want to take the sting out of the anticipated cross-examination of your witness by the employer’s representative, ask your witness questions dealing with the other side's version);
3.2.6 anticipate topics of cross-examination by your employer and discuss these with your witness without actually telling her what to say.
3.3 If you can, obtain a statement from the witness that sets out all the evidence that witness will be providing. You can then use this as a guide for the questions that you ask that witness.
3.4 If necessary, inform the witness that he or she should address the chairman not yourself.

4. Some tips to apply during examination-in-chief

4.1 do not ask loose or vague questions rather than those that are simple and short and which elicit only one fact at a time;
4.2 use simple everyday language rather than clich├ęs or slang;
4.3 make eye contact with the witness;
4.4 where possible or useful, supply visual aids, demonstrations or documents

G. PREPARING YOUR CLOSING ADDRESS

1. The purpose of your closing address is to persuade the chairman to accept your submissions regarding the case and to reject those of your employer. You want the chairman to agree that -

1.1 your view of the case is supported by the facts; and
1.2 your opponents view is either not supported at all or is less probable than yours.

2. Your planning for the closing argument should start long before the hearing. If you're not ready to give your closing statement before the hearing begins you are not ready for the hearing During the preparation, and the hearing itself if necessary, you should collect and organise the facts to support your case.

3. You need to –

3.1 identify your objectives for the hearing and the obstacles you need to overcome to achieve them;
3.2 identify the relevant and helpful facts;
3.3 anticipate your employer’s goals;
3.4 anticipate your employer’s factual material;
3.5 draft a skeleton giving structure to your closing argument. If necessary, adapt it as the hearing unfolds.

4. The employer’s representative will generally address the chairman first. You then have the opportunity of replying. After that the employer’s representative can then briefly address any new material that you may have dealt with in your address.

5. A suggested structure for your closing address is the following –
5.1 state the issues;
5.2 point out that the employer needs to make a case against you on a balance of probabilities;
5.3 list the evidence in support of your case;
5.4 deal briefly with the employer's case – eg its weakness, its lack of credibility, its lack of proof and other defects. If necessary, compare the two cases to point out why your case should be preferred;
5.5 if there are any relevant rules or legal principles that you are aware of, apply these to the facts and the verdict you are claiming;
5.6 explain the reasons for the actions of the employer - why their actions were consistent with their self-interest, announced intentions, past behaviour, lifestyle or other understandable motivations;
5.7 state clearly the decision you want the chairman to make and why he should do so.

6. Style and Tactics in your Closing Address
6.1 be natural; be yourself;
6.2 be confident and competent, which you will be if you prepare yourself well;
6.3 speak without emotion but not without some passion;
6.4 use an orderly presentation;
6.5 have a clear view of what you are going to say;
6.6 keep your strong points for the beginning and the end;
6.7 make concessions where appropriate;
6.8 deal with the other side's case briefly;
6.9 be honest, be brief.

H. ADDRESS IN MITIGATION

1. Mitigating Factors are any evidence presented regarding your character or the circumstances of the offence, which would cause the chairman to decide on a lesser sanction. You can call witnesses if you think it necessary for them to support your allegations.

Mitigating factors can be divided into the following -
1.1 Factors affecting you personally, such as
1.1.1 age;
1.1.2 personal circumstances;
1.1.3 length of service;
1.1.4 disciplinary history;
1.1.5 state of health;
1.1.6 how close to retirement;
1.1.7 financial circumstances;
1.1.8 level of education;
1.1.9 attitude to the offence (eg remorse);
1.1.10 willingness to make amends, if relevant.

1.2 Factors relating to the offence itself-
1.2.1 the circumstances surrounding the breach of the rule;
1.2.2 urged on by others ?

1.3 Factors relating to the employer
1.3.1 would the sanction imposed be consistent with previous similar cases involving other employees ?
1.3.2 your position with the employer.

2. Aggravating Circumstances

Aggravating Circumstances are those circumstances that count against you, eg the seriousness of the offence seen in the light of your length of service, your position in the company, to what degree did any element of trust exist in this employment relationship, etc.) These will be submitted to the chairman by the employer's representative

I. FINALLY

Before you hear the verdict, and perhaps even more so afterwards, you might be inclined to experience regrets the moment the hearing ends. The point you forgot to make, the question you forgot to ask, the preparation you didn't have time to perfect, can come rushing to your mind.

At least you will be able to say, “no matter the outcome, I know that I did everything I could to present my case as strongly as possible”. I hope this guide will have helped you to do so.

Friday 15 April 2011

How to apply for a bond

Doing it the lazy way this week - see below


PART OF THE MONEYWEB NETWORK
Friday, 15 April 2011


How to apply for a bond
Marius Crook*
06 April 2011

A simple step by step guide.

Applying for a bond is often one of the most important and daunting processes one can go through. In order to successfully secure a bond, it is essential for potential home buyers to ensure that they take the correct steps. Marius Crook, regional sales manager for ooba, South Africa's leading bond originator, supplies an easy to follow step by step guide to applying for a bond.
Step 1: Know your bond limitations
Ensure that you know what you can afford. Contact your bond originator consultant, complete the interview form and provide the necessary supporting documentation to receive the pre-approval certificate. With this in place you are now in a position to officially enter the property market.
Step 2: Find your dream home
A good tip for finding your ideal home is to narrow your search to a particular area, learn about its history, schools, security measures and other unique selling points. Once you have found your dream home ensure that it is within your price bracket.
Step 3: Sign offer to purchase
Once you have selected your home, put in an offer to purchase (sometimes called a sale agreement or deed of sale) with the real estate agent and seller and await acceptance from the seller. Once the seller accepts the offer the bond process can begin.
Step 4: Submit to banks
Contact your bond originator representative and provide a copy of the signed and accepted offer to purchase. The consultant will then proceed to submit your application to various banks.
Step 5: Bank assessment
Once the bond has reached the bank(s), the bank will then will assess the application and respond with a quotation or decline notice. One of the advantages of applying for a loan through a bond originator is that the purchaser only submits the information and documentation once. The consultant will then forward it to the bank(s) of the purchaser's choice.
Step 6: Accept or decline
The purchaser will then have five days in which to accept or decline the bank's quotation.
Step 7: Registration
Once the bond offer has been accepted by the purchaser, the bank will instruct attorneys to proceed with the registration of the bond. At the same time, the estate agent or seller will instruct the transferring attorney to proceed with the transfer of the property from the sellers name to the purchasers name. The transfer of the property and the registration of the bond will take place simultaneously.
Step 8: Deeds office
The documents will then need to be send to the deeds officer in order for the transfer to take place.
Step 9: Enjoy your new home!
*Marius Crook is the regional sales manager for ooba

Monday 07 March 2011

Shameful Panic Campaign against Equity Act Amendments

Recent weeks have seen a spate of ‘swart gevaar’-type tactics against the Employment Equity Bill due to come before Parliament soon.

Listen to the hysterical tirades: “the job-killing demographic provision”; “existing jobs in jeopardy … stifles the creation of new ones”; “massive racial realignment of employment quotas”; “huge and unfeasible social engineering”; “would require massive population shifts” and so on ad nauseam.

All of this is hyperbolic rubbish.

The only thing that is massive about this proposed amendment is the ignorance of many critics who have been spouting their mouths off about it.

What is the real position?

The section the polemics refer to is section 42(a)(i) of the Employment Equity Act. At present, it provides that, when the Director General of Labour assesses whether an employer is complying with the Act, he “must” take into account the demographic profile of the “national and regional” economically active population.

The controversial proposed amendment is to remove the words “national and regional”.

According to the critics this has the effect of “replacing the regional criterion with a national benchmark”, an allegation that is simply incorrect.

Following on from this, they argue, Western Cape employers will not be able to employ coloureds above the group’s national average as opposed to their 54.8% representation in the Western Cape. The remainder of coloured employees will have to move to the rest of the country to be employable. Indians and even blacks will be similarly affected. Massive population shifts will result.

Why is this line of reasoning perverted and misinformed?

First, note that the proposed amendment will delete both “national” and “regional” as criteria. If the government wishes to replace regional demographics with national demographics, why does it propose deleting “national”? That they are proposing this deletion indicates quite the opposite of wanting to make national demographics the criterion. If the amendment goes through, the employer will be able to apply any area’s demographics, provided it is relevant, as the Labour Department has confirmed.

Secondly, the Director General will be given a discretion as to whether to pay attention to this criterion at all. The existing act says he “must” consider demographics. The proposed amendment says he “may” consider demographics. So he can ignore the whole issue if he deems it appropriate.

Thirdly, the definition of a “designated group” in the Act is “black people, women and people with disabilities”. One critic has declared that “the proposals invalidate the concept of ‘black’ as defined in the Act”. He says that coloured and Indian South Africans are “written out of the group”. But the definition of “black people”, if he had cared to read it, is and will remain “a generic term meaning Africans, Coloureds and Indians” in both the Act and the proposed amendments.

This fact also gives the lie to picking on Coloureds and Indians. One critic completely misreads section 42 where it refers to “different designated groups” by assuming that this means Blacks, Coloureds and Indians. However, applying the definitions given in the Act, the phrase refers to “black people (including Africans, Coloureds and Indians), women and people with disabilities”.

This means that in assessing BEE quotas, there is no distinction between “Africans Coloureds and Indians” (ACI). The balance that needs to be struck with reference to various factors including, in the Director General's discretion, the demographics of the economically active public population, is between ACI, women and disabled people on the one hand and non-blacks, men and the non-disabled on the other.

Fourthly, the critics have lambasted the proposed amendments to section 42 (as interpreted by them of course) by saying that they are absurd, unfeasible and unrealistic.

Precisely. And that is why no court will interpret the amended section in the way that the hysterical critics are claiming. It is a fundamental principle of the interpretation of statutes that if a provision would lead to an absurdity the court should adopt a construction, if possible (and it is probable), that would avoid the absurdity.

As the above makes clear, the fact that the legislator is proposing to delete “national” as well as “regional” shows clearly that it could not have been the intention of the legislator to make national demographics the obligatory criterion.

All this misguided criticism has had a pernicious effect. They are bound to create a sense of unease amongst Coloureds. Memories of District Six and other travesties will resurface. Needless and unnecessary worry and concern will have been sown in the hearts of other citizens as well.

That’s what makes all this irresponsible clamour so shameful.

Monday 20 December 2010

SOME COMMON ANTE-NUPTIAL CONTRACT QUESTIONS ANSWERED

1. As we live in England, will the contract be binding here in the event of a divorce?

In England, the terms of an antenuptial contract cannot limit or oust the divorce court’s power to make property and financial orders. However, the general approach of these courts, especially recently is that agreements freely negotiated between the parties to a marriage should be upheld, unless they were unfairly entered into or create injustice. The court is also more likely to uphold an agreement if one or both of the parties has come from a jurisdiction where prenuptial agreements are commonplace and enforceable. In the light of this, I think you would be justified to consider that it would be highly unlikely for an English divorce court to rule that your antenuptial contract would not be binding.


2. Please could you explain the concept of accrual? I think this is South African legal terminology so I am not familiar with it myself.

The basic concept of accrual is that, during the marriage, there is no change in the property rights and obligations of the parties, ie the situation remains exactly the same as it was before they married. Accrual only comes into effect on the termination of the marriage by death or divorce. On termination, the increases during the marriage in the respective estates of the parties are compared with each other. The difference between the largest increase and the smallest increase is determined. That difference is then divided between the parties either equally or in a proportion agreed to by them, with the highest-increase-party paying the appropriate amount to the lowest-increase-party.

3. All we want the contract to say is that anything that we bring to the marriage is separate, anything either of us gain during the course of the marriage is joint and anything either of us receive by way of gift or inheritance will also be separate. Is this possible?

Your contract can certainly provide for the terms you set out. You should compare what you propose with what the accrual system offers and decide which one you prefer.

Friday 15 October 2010

Writing Tips for Lawyers

WRITING TIPS FOR LAWYERS

A. PRINCIPLES

1. Use the active rather than the passive voice:

Active: the subject of the sentence performs the action, eg Mary ate the peach.
Passive: the subject is acted on: eg the peach was eaten by Mary

There are three drawbacks to using the passive voice:

1.1 it unnecessarily adds extra words;
1.2 it obscures who the actor is;
1.3 it disrupts the normal subject-verb-object order of the sentence.
In legal prose, the consequences of obscuring who the actor is can be drastic. So always use the active voice unless it is clear that the passive voice represents an improvement.

2. Don't make sentences too long – 20 to 25 words are recommended for general legal writing. If a sentence is too long, break it down into its constituent parts and make separate sentences. The effect is greater clarity and ease of understanding.

3. Keep subject, verb and object closer together:

Before: Acme shall not without the prior written consent of Excelsior which Excelsior may not unreasonably withhold transfer the shares to any person.

After: Acme shall not transfer the shares to any person without the prior written consent of Excelsior which Excelsior may not unreasonably withhold








4. Don't bury verbs:

Using buried verbs is a a description of using abstract nouns or adjectives instead of a verb. This deadens contract prose rather than allowing you to use strong or action verbs rather than weaker verbs.

Before: Immediately following issuance of the notes...

After: Immediately after Acme issues the notes...

5. Include both the number and heading of a clause when you refer to it

Usual cross reference: subject to clause 8...

Preferred cross reference: subject to clause 8 (Indemnity)...

6. Prefer the singular above the plural

In many sentences a plural noun can lead to ambiguity. For instance, it can be unclear as to whether the persons or things constituting the subject are to act individually or collectively.

Examples:

6.1 the shareholders shall notify Acme;
6.2 each shareholder shall notify Acme;
6.3 the shareholders, acting collectively, shall notify Acme.











B. HEADS OF ARGUMENT

1. Style
1.1 Try to be as brief as your argument will allow;
1.2 Avoid repetition;
1.3 avoid verbosity - expressed in or using too many words;
1.4 don’t quote long passages from your authorities;
1.5 deal with matters chronologically;
1.6 Start strong and end strong;
1.7 Tell a persuasive story;
1.8 Deal candidly with your case’s weaknesses and answer them;
1.9 Prepare a diagrammatic representation of your argument to
1.9.1 help you control the material;
1.9.2 focus on the important components of your argument.

2. Preparation Process

2.1 Identify the issues;
2.2 Select the evidence relevant to each issue
2.3 Construct the argument relevant to each issue

3. Structure of Heads of Argument

3.1 Ultimate conclusion desired from the court;
3.2 State main submission;
3.3 State main reasons for it;
3.4 State arguments for each reason


C. EXAMPLES

Inferior Terminology Suggested Alternative
shall be entitled to .... May
X shall be liable to pay ... X shall pay ...
Utilised Used
X is not allowed to .. may not ...
The tenant shall not undertake any alterations The tenant shall not alter
The Tenant agrees to have the carpets cleaned The tenant shall have the carpets cleaned
To provide the landlord with written proof that he has done so, on demand on demand to provide the landlord with written proof that he has done so,
This will be for the account of the tenant and will be payable on demand by the landlord This will be for the account of the tenant who shall pay such account whenever the landlord requires it
The tenant has no pets the tenant may not admit any domestic animals to the premises
Should the premises only be partly damaged Should the premises be partly damaged only
An independent third party will be used to decide an independent third party shall decide
The provisions of clause .... Clause ....
The tenant shall ensure that the premises shall be vacant at the time of such inspection the tenant shall ensure that all his belongings and furnishings have been removed from the premises at the time of such inspection
This acceptance shall not in any way whatsoever affect the landlord's claim for cancellation This acceptance shall not affect the landlord's cancellation claim.
Execute (ambiguous – can mean to perform or complete a contract or duty, ie to carry it out) Sign

All annexures are part of this agreement
Redundant. Any reference to the attachment will suffice to bring it within the scope of the contract.
... as amended Compliance with a statute or contract can only be measured against the current version anyway.
Automatically Can almost always be eliminated without changing the meaning.
Daily basis, pro rata basis, etc Try simply “daily”, “pro rata”.
During the term of this agreement When else ?
For the avoidance of doubt Delete it and nothing will change
Hereby, herein, hereof, hereanent, hereinbefore (above), hereinafter (below) etc Here-words deaden prose
Mutatis mutandis Together with any changes needed for the different circumstances
It’s (it is) & its (belonging to it) Use correctly

D. REFERENCES
“Technique in Litigation”, Morris, 5th edition by Judge H Daniels, Juta, 2003, Chapter 13, Argument.
“Effective Trial Advocacy” Willem H Gravett, 1st edition, Juta 2009, in particular Chapter 7 Final Argument
“Legal Drafting”, Peter van Blerk, 1st edition, Juta 1998, Chapter 15, Heads of Argument. (Good example on page 82)
“Litigation Skills for South African Lawyers”, C G Marnewick, 2nd edition, Lexis Nexis. (In 1st edition: § 25.6 page 513: Preparing Heads of Argument.)
“Preparing an Argument: a Quick and Easy Model”, C G Marnewick, The Advocate magazine, December 2004; www.sabar.co.za/PHP/sabardata.php?page=48
“A Manual of Style for Contract Drafting”, Kenneth A Adams, 2nd edition, American Bar Association section of Business Law, Chicago, Illinois. This book is a major source of the material contained in this paper.
Darrolls Attorneys blogsite: http://darrollsattorneys.blogspot.com

Friday 27 August 2010

When a neighbour builds on your land

Good walls make good neighbours - or not
Barry Washkansky
Realestateweb.co.za
27 August 2010

What recourse do you have if someone infringes building plans?

It is often said that it is easier to ask for forgiveness then permission. This seems particularly true in the property industry where homeowners often build and infringe on their neighbour's rights or property, usually both. Builders of new homes and renovators of existing ones often flout building regulations safe in the knowledge that either they won't be caught or that the possibility of being told to undo what is already done is slim at best.

There have been examples in the past when building has been stopped but this is more the exception then the rule. Sometimes residents get wind of the plans and do object in time, delaying or stopping the development /construction or at least getting the builder to amend the plans.

But what happens when someone infringes building plans and what recourse do residents have?

According to property attorney, Roland Darroll of Darrolls Attorneys (021 671 6408) there are three legal remedies available to the victim of invasive illicit building. He can apply for an interdict ordering removal of the encroachment, unless he knowingly allowed it. Secondly, he can claim damages, although any ‘knowing allowance' of the encroachment will reduce these.

Thirdly, he can offer (or the court in its discretion may order) transfer of, and claim compensation for, the land encroached upon in return for market-related compensation. This option is usually chosen where the results of removal would be more destructive or costly than the alternative.

This compensation normally consists of an amount for the land itself as well as a solatium. This is a fancy word for damages designed to ‘comfort' the injured party. This remedy began when the Roman Emperor allowed a childless mother to adopt, a practice that Roman Law at that time generally prohibited. In our case, it is for hapless landowners, understandably upset by the invasion of their land.

The above rules apply equally where the results of illegal building encroach on the vertical space above any adjacent land, i.e. in the case of roofs, beams etc.

Where the encroaching building stands on its own or can easily be split away from anything else, the victim can eject his neighbour and keep it. However, he will generally have to compensate the encroacher for value received."

When an alleged illegal construction is already underway, says Arno Watson, property lawyer from Mansons Inc (021 425 3822) the first option is a simple but not necessarily effective one. Report the infringement to the building inspector for that particular area. They will take it up and advise whether it is a "legal" structure or not i.e. whether the plans are approved or not and whether the work done is according to the plans. If it is not approved they will take it from there. If they regard it as legal, the only option would be to go to the High Court and ask for appropriate orders - this is only advisable if we are looking at damages of millions of rands and you have a good case. The costs alone will be hundreds of thousands of rands.

"Neighbours cannot just build without approval from the Municipality, which most cases would require the neighbours' consent, so they will know what is going to happen," says Watson.

The fact is that once built it can be a logistical and legal nightmare to undo work already completed. And, says Watson, it is still within the powers of the building inspectorate to order such demolition if there is no other option. Sometimes they may impose fines if they do not regard it as serious enough to order it to be taken down.