Monday, 20 December 2010


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



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.


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


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


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

“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;
“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:

Friday, 27 August 2010

When a neighbour builds on your land

Good walls make good neighbours - or not
Barry Washkansky
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.

Thursday, 26 August 2010



1. Although the Matrimonial Property Act 88 of 1984 lays down the basic principles regarding the accrual system, the spouses themselves can also reach agreement as to certain aspects of its functioning. The initial value of a spouse’s estate at the time of marriage can be declared in an ante-nuptial contract. Spouses may also stipulate that the accrual system is to be excluded altogether or that the percentage of the accrual will be other than 50%.

2. Only when the marriage is dissolved will the accrual (increase) be determined. If the one spouse’s estate has shown no accrual or a smaller accrual than the other, the former spouse receives the right to payment of (normally) half the difference between the accrual of the respective estates of the spouses.

3. The starting point is the monetary value of all the assets of a spouse at the commencement of marriage less the monetary liabilities of such spouse. However the spouses are entitled to stipulate in their ante-nuptial contract that certain assets are to be excluded in calculating the initial value of the estate. The values indicated are provisional proof of the commencement value of an estate and are taken to be correct unless the contrary is proved.

4. Because of the principle in paragraph 3 and because often the commencement value needs to be proved ,often many years after the commencement of the marriage, the stipulation of an initial commencement value is to some extent a policy decision by the spouse declaring that value. In other words, spouses will declare their commencement values according to the values of assets presently owned by them that they wish to exclude from the accrual at the termination of the marriage by death or divorce.

5. When a spouse-to-be already owns minor assets such as odd bits of jewellery, furniture, clothing, other personal possessions, small savings accounts and bank balances and even a car of moderate value, not much significance is attached to them and the commencement value is often declared as “NIL”. However, when assets of some significance are owned and the owner spouse-to-be wishes to exclude them from the operation of accrual he will assess their present value and declare that as being the commencement value of his estate. Such assets could be things like immovable property, specialised and significant photographic or hi-fi equipment, a major investment in shares or a business and so on.

6. Therefore, when a party about to enter into an ante-nuptial contract asks the question “should this figure include furniture, jewellery, car etc..?” the answer is: it depends. If the value of the item is significant and the party wishes to exclude it from the operation of accrual, then its value should be included in the declared commencement value of that party's estate. Conversely, if the value is insignificant and it does not really matter at the end of the day as to whether it is included in the accrual or not, then that value may safely be ignored. Even if the value of an asset is substantial, if the party owning that asset does not mind if it forms part of the accrual, then it need not be declared.

7. From the above we can see that although the law does not specifically say so, in practice it is a question of the way in which the owner of the asset feels about the prospect of it being included in an accrual or not. Even then, this would not preclude the owner of the asset concerned who declared the commencement value of his estate as “nil”, from proving at the termination of the marriage that in fact he did own, say, a property worth, say, R 2 million at the time of the commencement of the marriage. The effect of this would be that the property would be excluded from the accrual even though it was not included in the assessment of the commencement value of that party's estate in the ante-nuptial contract itself. This is the effect of the principle that the commencement value stated in the ante-nuptial contract is merely provisional and the real commencement value stands to be proved at the time the marriage comes to an end.

Thursday, 13 May 2010

You can't fire someone at will any more

It's amazing how many employers run into trouble because they think they can still fire someone just by giving them a letter of dismissal. The real picture is far more complicated.

Every employee has the right not to be unfairly dismissed. He is protected against arbitrary dismissal, being dismissal without substantive grounds and/or in a procedurally unfair manner.

There are three - and only three - legitimate categories of “Substantive Grounds”,

(a) Misconduct,
(b) Incapacity (itself divided into ‘inadequate performance’, ‘ill-health and injury’ and ‘incompatibility’) and
(c) ‘operational reasons’ (retrenchment).

Every dismissal, if it is to stand up to challenge, must be procedurally fair and substantively fair. What does this mean ?

Procedural Fairness: The holding of a disciplinary hearing (pre-dismissal hearing) is the most important procedure with which the employer must comply with to achieve procedural fairness, in instances of misconduct but also in cases of incapacity.

Prior to the disciplinary hearing, the employer should conduct an informal investigation to see if there is merit in the charges against the employee. If they are serious, the employee may be suspended on full pay during the investigation and until a disciplinary committee arrives at a decision.

The hearing must in general comply with ten basic requirements to satisfy the essential element of procedural fairness:

1 the employee must be fully and timeously informed about the charges prior to the hearing;

2 he must be informed as to when and where the hearing will take place so that he has a fair opportunity to prepare his case;

3 the hearing must be held within a reasonable time after the alleged misconduct or incapacity;

4 the employee must be allowed to be present at the hearing at all times - unless, of course, he refuses to attend. Where necessary, he must have an interpreter;

5 the employee is entitled to be represented by a co-employee or trade union official and, in serious and/or complex cases, by a legal representative;

6 the employee must be afforded a fair opportunity to state his case after the employer has presented its case. This means he is entitled to:

(i) full access to all evidence (including documents) to be used against him;

(ii) cross-examine the persons testifying against him;

(iii) give evidence and put forward his defence;

(iv) call witnesses in his defence; and

(v) make concluding representations;

7 the chairperson and the disciplinary committee must be unbiased and consider all relevant circumstances and facts objectively with a just and open mind;

8 should there be a finding of guilty, then before the imposition of a penalty, the employee must be able to lead evidence in mitigation of sentence; similarly the employer may adduce aggravating circumstances (previous warnings, disciplinary record etc.);

9 the decision and the reasons for the decision must be disclosed to the employee; and

10 the employee must be reminded that he may appeal, or refer the dispute to the CCMA or a bargaining council.

Retrenchment for Operational Requirements Requires a Different Procedure

Operational Requirements are those based on economic, technological, and structural or similar needs of the employer (ie a bona fide economic rationale) and are a legitimate grounds for dismissal, provided a fair procedure is followed;

Without into the details, it is sufficient to say that an exhaustive consultation with staff must take place in order to provide the employees affected with a fair opportunity to suggest ways in which job losses might be avoided or the effects of retrenchment as a whole be minimised.