This blog deals with the South African law relating to 'a stable, monogamous relationship where a couple who do not wish to, or are not allowed to, get married, lives together as spouses". The definition includes people of the same sex living together in a stable, exclusive relationship.
1. Property
The general rule of law is that cohabitation does not give rise to special legal consequences, no matter how long the relationship has lasted. Cohabitants may make use of the ordinary rules and remedies of the law, such as those relating to property and contract, but no family law consequences flow automatically from their relationship.
However, there are a number of legal actions that can possibly be used to create an enforceable legal right by one partner against the other:
• One is a remedy based on "unjust enrichment" where a party has been enriched at the expense of another without that other having received due value in exchange;
• Another remedy uses the concept of "universal partnership". It has been held that a universal partnership can exist between cohabitants if the requirements of such a partnership are present. These requirements are that • the aim must be to make a profit (it is sufficient in the case of cohabitation if the objective is to accumulate an appreciating joint estate); • both parties must contribute; • it must operate the benefit of both; and • the contract must be legitimate. It has also been held that a universal partnership can arise from an express or a tacit agreement. The consequences of such a partnership are that the partnership property is owned jointly;
• Finally, there may be an express or tacit cohabitation agreement. Given the presence of certain legal difficulties in this fast developing area of our law, it is highly advisable for the couple to commit their agreement to writing and sign it, so that there cannot be any doubt as to its terms.
In the absence of a universal partnership, private property acquired before cohabitation belongs to the partner separately. If there is no universal partnership, property bought by one of the parties during the relationship will belong to the purchaser.
2. Maintenance and loss of support
There is no reciprocal duty of support in our law between cohabiting parties either during their relationship or after its termination by death or otherwise. Neither party may bind the other in contract for household necessaries, unless the one has appointed the other as his or her agent. If the couple hold themselves out to be husband and wife, they will be bound by each other's contracts for household necessaries as if they were legally married because they will not be allowed to say that there was no contract of agency between them (estoppel).
There is also therefore no action for damages for loss of support against a third party who unlawfully causes the death of a cohabitant who has been supporting the surviving partner. This is so even if the deceased had a contractual obligation to support the other, because such an action only lies if the duty to support exists by operation of law. This is the case where compensation for occupational injury or disease is claimed under the Compensation for Occupational Injuries and Diseases Act 130 of 1993. A cohabitant has been included in the definition of 'dependant of an employee' provided that the employee does not also have a legal spouse.
3. The Common Home
A cohabitant who has an ownership interest in the home has a special right to occupy it. Co-owners are both entitled to share in the profits from the home and are also liable to share in the expenses and losses which the running and upkeep of the property involves. Each will be jointly and severally liable for the whole amount of the bond. If one of the cohabitees pays more than his share of the expenses, the difference can be recovered from the other.
Joint owners both have the right to occupy the home and therefore neither can evict or exclude the other from control of such property or compel the other to sell the property after termination of the relationship. Even if they have equal shares, the court will have to settle the matter if the parties cannot agree. The court may order that the home be awarded to one of the partners, subject to the payment of compensation to the other. One of the partners, however, can sell his share in the property to a third party without the other's permission if the cohabitees have not formed a partnership, expressly or impliedly.
If one of the co-owners dies, his share in the property will form part of his estate. The deceased may bequeath his share to the partner by means of a valid will. If the deceased dies intestate or bequeaths his share to someone else, the cohabiting partner will have no claim to the deceased's share in the property and will become co-owner along with the beneficiary. The surviving partner's remedy is to apply to court for an order that the home be awarded to him or her.
4. Children
A child born of a cohabitation relationship is illegitimate. The mother alone has parental power over it and even on her death, the father has no inherent right of guardianship or custody, although this can be remedied in appropriate cases by a court application.
Sexual orientation and marital status may no longer legally play a role when determining the best interests of a child with regard to custody or access of a parent to his/her children.
5. Succession
A cohabitant may leave his or her estate to the other partner even to the exclusion of any spouse to whom he may be married, although the latter will have the right to claim maintenance from the deceased. There is no right of intestate succession between cohabitants.
6. Insurance
Either cohabitant may name the other as a beneficiary under a life insurance policy, provided such nomination is clear and specific. For instance, the cohabitant will not be regarded as a member of the insured's 'family'.
7. Insolvency
If one of the partners becomes insolvent, the estate of both partners vests in the trustee in the same way as that of a married couple.
8. Other Consequences
8.1 Change of name: a cohabitant wishing to change his or her surname to that of the partner must approach the Director-General of Home Affairs for permission to do so, in the same way as any other person.
8.2 Evidence: Whereas a spouse cannot be compelled in civil or criminal proceedings to disclose communications made to him or her by the other spouse, such protection does not extend to cohabitants.
8.3 Legal actions: The matrimonial property system of community of property does not ensue from cohabitation. This means that they may sue each other for patrimonial and non-patrimonial damages.
8.4 Medical aid: s 24(2)(e) of the Medical Schemes Act 131 of 1998 requires medical aid schemes to show upon their registration that they will not arbitrarily discriminate against people on various grounds including marital status and sexual orientation.
8.5 Pension Funds: a cohabitant will enjoy the same rights as a spouse by virtue of the definition of spouse being widened to include a member of " a union of two adults, whether of the same or the opposite sex, in respect of whom the Board is satisfied that the parties cohabit as if married".
8.6 Immigration permits: the special provision made for the authorisation of the issue of an immigration permit to the spouse of a person who is permanently resident in South Africa now includes a party to a life partnership.
Roland Darroll
Cape Town
Wednesday, 30 May 2007
Wednesday, 30 May 2007
Friday, 09 February 2007
The following article appears in the January/February 2007 edition of "De Rebus" the national journal of the Law Society of South Africa:
Payment provisions for disputed sectional title debts when wishing to sell
By Roland Darroll
A sectional title unitholder wants to sell his unit. The body corporate won’t issue a clearance certificate. It says he owes it moneys due. He says he does not, but without that certificate the transfer is a non-starter.
Most, if not all, unitholders pay under protest, get the clearance certificate, and then claim the payment back (the ‘protest payment’ route).
However, the relevant section, s 15B(3)(a)(i)(aa) of the Sectional Titles Act 95 of 1986, provides another way –
‘The registrar shall not register a transfer of a unit or … undivided share …, unless there is produced … -
(a) a conveyancer’s certificate confirming that as at date of registration-
(i) (aa) … [the] body corporate … has certified that all moneys due to the body corporate by the transferor in respect of the … unit have been paid, or that provision has been made to the satisfaction of the body corporate for … payment…;’ (my emphasis)
The unitholder can therefore provide for payment (the ‘payment provision’ route) rather than actually pay and reclaim.
Christo Botha (Statutory Interpretation, Juta, Cape Town, 4th ed, 2005, at 69), points out ‘legislation should generally be interpreted [so]that no word or sentence is … redundant or superfluous’.
Payment provision could be made by, say, providing some sort of conditional guarantee or depositing it into the trust account of an attorney, accompanied by his undertaking to pay the body corporate the amount eventually found, or agreed, to be due.
What if the provision does not satisfy the body corporate? Section 15B(3)(a) (i)(aa) ensures that unitholders settle their outstanding commitments before selling their units. It assists the financial soundness of a sectional titles scheme. However, bodies corporate can be mistaken or unreasonable, like everybody else.
The body corporate’s discretion as to whether it should be satisfied with the unitholder’s payment provision is not unfettered. When a statute requires an act to be ‘to the satisfaction’ of some entity or authority, it confers a discretion. Where the payment provision is objectively reasonable and the unitholder’s dispute is bona fide, the law obliges the body corporate to be satisfied.
‘A discretion must be exercised according to the rules of reason and justice, not according to private opinion. It must not be arbitrary, vague and fanciful but legal and regular …’
[Sharp v Wakefield 1891 AC 173, at 179; Casser & Casser v Bellville Municipality 1958 (3) SA 318(C) at 325 and Pretoria North Town Council v A. I. Electric Ice-Cream Factory (Pty.) Ltd., 1953 (3) SA 1 (AD) at 12.]
Apart from being illogical, clumsy, costly and time-consuming, protest payments are unnecessarily litigious. Public policy eschews unnecessary litigation. In Lawyers for Human Rights and Another v Minister of Home Affairs and Another 2004 (4) SA 125 (CC), the Constitutional Court, per Madala J at 150 [75], commended inter alia the following legal principles:
‘(i)[to] avoid opening … the floodgates to unnecessary litigation;
(ii) to ration scarce judicial resources by applying them to real rather than hypothetical disputes;
(iii to place limits on the exercise of judicial power by precluding rulings … not needed to resolve disputes;… ’
There is also a duty on practitioners to avoid useless litigation, as Lewis on Legal Ethics stresses (Juta, 1982, at 106). Throughout the case law it is assumed axiomatically that unnecessary litigation is to be avoided (eg, Combustion Technology (Pty) Ltd v Technoburn (Pty) Ltd 2003 (1) SA 265 (C) at 269 [15]; South African Bureau of Standards v GGS/AU (Pty) Ltd 2003 (6) SA 588 (T) at 592 [8] referring to Ebrahim v Excelsior Shopfitters and Furnishers (Pty) Ltd (II) 1946 TPD 226 at 236).
Where practitioners advise their clients to make protest payments, they could even be violating this duty. Litigation is inevitably needed to recover such payments.
Litigation may, of course, be necessary either way. If the parties are not able to settle their dispute, either the unitholder will need to sue the body corporate (after a protest payment), or one of the parties will have to sue the other (after a payment provision).
There could be important differences, though. The matter will more likely be settled where the funds are held by a third party rather than a party itself, possession of the disputed funds being the self-encouraging factor that it is.
There is also the question of the onus of proof. Schwikkard & van der Merwe, Principles of Evidence, 2nd ed, Cape Town, Juta, 2002, at 538 point out that,
‘the guiding principle … is that the person who makes a positive assertion is generally called upon to prove it, with the effect that the burden of proof lies generally on the person who seeks to alter the status quo’.
If the unitholder ‘protest pays’, he will be seeking to alter the status quo. The onus will be on him to show that he is entitled to the return of the disputed amount. On the other hand, if the unitholder makes a payment provision and the body corporate sues for the amount it considers due, the onus is on the body corporate.
Zeffert et al, The South African Law of Evidence, Lexis Nexis Butterworths, 2003, chap 3 (pages 45 – 92) set out what they call ‘a sustained analytic questioning of almost everything’ about the onus of proof. They call the law in this area ‘mysterious, enigmatic, elusive…’ (page 46) ‘where obfuscation has been the norm’(page 59). Therefore Schwikkard & van der Merwe’s assertion may not hold. It is beyond this article to enter these mysteries, but if Schwikkard & van der Merwe’s assertion applies, whether the unitholder ‘protests’ or ‘provides’ could be crucial in deciding on where the onus lies.
For all the above reasons, unitholders obstructed from selling their units by monetary disputes with their bodies corporate should not be cowed into protest paying. Payment provision is an equally valid and otherwise better route. Bodies corporate cannot refuse a clearance certificate just because the unitholder takes the latter course. The unit seller will be in a much better position to resolve the remaining ‘moneys due’ dispute with the body corporate – without being blocked from passing transfer to the purchaser of his unit.
Roland Darroll BA(Unisa) BA LLB (UCT) is an attorney in Cape Town.
Payment provisions for disputed sectional title debts when wishing to sell
By Roland Darroll
A sectional title unitholder wants to sell his unit. The body corporate won’t issue a clearance certificate. It says he owes it moneys due. He says he does not, but without that certificate the transfer is a non-starter.
Most, if not all, unitholders pay under protest, get the clearance certificate, and then claim the payment back (the ‘protest payment’ route).
However, the relevant section, s 15B(3)(a)(i)(aa) of the Sectional Titles Act 95 of 1986, provides another way –
‘The registrar shall not register a transfer of a unit or … undivided share …, unless there is produced … -
(a) a conveyancer’s certificate confirming that as at date of registration-
(i) (aa) … [the] body corporate … has certified that all moneys due to the body corporate by the transferor in respect of the … unit have been paid, or that provision has been made to the satisfaction of the body corporate for … payment…;’ (my emphasis)
The unitholder can therefore provide for payment (the ‘payment provision’ route) rather than actually pay and reclaim.
Christo Botha (Statutory Interpretation, Juta, Cape Town, 4th ed, 2005, at 69), points out ‘legislation should generally be interpreted [so]that no word or sentence is … redundant or superfluous’.
Payment provision could be made by, say, providing some sort of conditional guarantee or depositing it into the trust account of an attorney, accompanied by his undertaking to pay the body corporate the amount eventually found, or agreed, to be due.
What if the provision does not satisfy the body corporate? Section 15B(3)(a) (i)(aa) ensures that unitholders settle their outstanding commitments before selling their units. It assists the financial soundness of a sectional titles scheme. However, bodies corporate can be mistaken or unreasonable, like everybody else.
The body corporate’s discretion as to whether it should be satisfied with the unitholder’s payment provision is not unfettered. When a statute requires an act to be ‘to the satisfaction’ of some entity or authority, it confers a discretion. Where the payment provision is objectively reasonable and the unitholder’s dispute is bona fide, the law obliges the body corporate to be satisfied.
‘A discretion must be exercised according to the rules of reason and justice, not according to private opinion. It must not be arbitrary, vague and fanciful but legal and regular …’
[Sharp v Wakefield 1891 AC 173, at 179; Casser & Casser v Bellville Municipality 1958 (3) SA 318(C) at 325 and Pretoria North Town Council v A. I. Electric Ice-Cream Factory (Pty.) Ltd., 1953 (3) SA 1 (AD) at 12.]
Apart from being illogical, clumsy, costly and time-consuming, protest payments are unnecessarily litigious. Public policy eschews unnecessary litigation. In Lawyers for Human Rights and Another v Minister of Home Affairs and Another 2004 (4) SA 125 (CC), the Constitutional Court, per Madala J at 150 [75], commended inter alia the following legal principles:
‘(i)[to] avoid opening … the floodgates to unnecessary litigation;
(ii) to ration scarce judicial resources by applying them to real rather than hypothetical disputes;
(iii to place limits on the exercise of judicial power by precluding rulings … not needed to resolve disputes;… ’
There is also a duty on practitioners to avoid useless litigation, as Lewis on Legal Ethics stresses (Juta, 1982, at 106). Throughout the case law it is assumed axiomatically that unnecessary litigation is to be avoided (eg, Combustion Technology (Pty) Ltd v Technoburn (Pty) Ltd 2003 (1) SA 265 (C) at 269 [15]; South African Bureau of Standards v GGS/AU (Pty) Ltd 2003 (6) SA 588 (T) at 592 [8] referring to Ebrahim v Excelsior Shopfitters and Furnishers (Pty) Ltd (II) 1946 TPD 226 at 236).
Where practitioners advise their clients to make protest payments, they could even be violating this duty. Litigation is inevitably needed to recover such payments.
Litigation may, of course, be necessary either way. If the parties are not able to settle their dispute, either the unitholder will need to sue the body corporate (after a protest payment), or one of the parties will have to sue the other (after a payment provision).
There could be important differences, though. The matter will more likely be settled where the funds are held by a third party rather than a party itself, possession of the disputed funds being the self-encouraging factor that it is.
There is also the question of the onus of proof. Schwikkard & van der Merwe, Principles of Evidence, 2nd ed, Cape Town, Juta, 2002, at 538 point out that,
‘the guiding principle … is that the person who makes a positive assertion is generally called upon to prove it, with the effect that the burden of proof lies generally on the person who seeks to alter the status quo’.
If the unitholder ‘protest pays’, he will be seeking to alter the status quo. The onus will be on him to show that he is entitled to the return of the disputed amount. On the other hand, if the unitholder makes a payment provision and the body corporate sues for the amount it considers due, the onus is on the body corporate.
Zeffert et al, The South African Law of Evidence, Lexis Nexis Butterworths, 2003, chap 3 (pages 45 – 92) set out what they call ‘a sustained analytic questioning of almost everything’ about the onus of proof. They call the law in this area ‘mysterious, enigmatic, elusive…’ (page 46) ‘where obfuscation has been the norm’(page 59). Therefore Schwikkard & van der Merwe’s assertion may not hold. It is beyond this article to enter these mysteries, but if Schwikkard & van der Merwe’s assertion applies, whether the unitholder ‘protests’ or ‘provides’ could be crucial in deciding on where the onus lies.
For all the above reasons, unitholders obstructed from selling their units by monetary disputes with their bodies corporate should not be cowed into protest paying. Payment provision is an equally valid and otherwise better route. Bodies corporate cannot refuse a clearance certificate just because the unitholder takes the latter course. The unit seller will be in a much better position to resolve the remaining ‘moneys due’ dispute with the body corporate – without being blocked from passing transfer to the purchaser of his unit.
Roland Darroll BA(Unisa) BA LLB (UCT) is an attorney in Cape Town.
Monday, 29 January 2007
Sectional Titles - the uppity owner
One problem with sectional titles schemes is that the law is not clear and authoritative when it comes to what the body corporate should or can do with an unco-operative owner. I have a current case where the owner in question is persisting in building a structure on an area abutting on his unit where it is by no means certain that it is for his exclusive use, even though he is the only person that has physical access to the area concerned. To be able to claim the right of exclusive use in any area, the unitholder must either have received it by virtue of a notarial cession or the rules must provide that particular area is for the exclusive use of the unitholder concerned.
The strategy of our uppity unitholder is to quietly and intermittently carry on adding to the unauthorised structure until it slowly becomes a fait accompli, something already done and beyond alteration. Numerous warnings have been issued by the body corporate, but to no avail. What is the remedy of the body corporate, in other words the other owners in the complex ?
One thing one can try is to persuade the building inspector of your local authority to issue a cease and desist order in terms of their bylaws. This will cost the body corporate nothing and should have the desired effect, providing you can get your local authority to co-operate.
Another possibility is to apply for what is called a mandatory interdict that, if granted by the court, will consist of an order that the recalcitrant unitholder not only cease further construction but also dismantle what has already been constructed without due authority. A problem is that one needs to show prejudice and the lack of an alternative remedy in order to succeed in obtaining an interdict of this kind. In certain circumstances this could be difficult for the body corporate to show: the additional construction might be ugly but does it really prejudice anyone ?
The other alternative is to resort to arbitration in terms of Management Rule 71 under the Sectional Titles Act 95 of 1986. This has plusses and minuses. One plus is its relative speed when compared to the courts. One authority [Prof C G v d Merwe, author of Sectional Titles, Butterworths, looseleaf (not the English equivalent of Loslyf), updated to 28 February 2006, p 9-19] maintains that cost-effectiveness is another. I am not so sure about that. The state pays for the judge in the courts – the parties have to pay for the arbitrator in arbitration and this can also be expensive.
The learned author (we lawyers use these old-fashioned courtesies towards each other) also says another plus is that arbitration "offers better safeguards against procedural irregulations [sic – I presume he means 'irregularities'] by virtue of the provisions of the Arbitration Act 42 of 1965, that will apply to any arbitration proceedings in terms of the Sectional Titles Act".
What should also be considered is an amendment to the conduct rules imposing fines on unitholders who break those rules and the power to request an amount as security for future transgressions. This is a speedy and inexpensive remedy but the rule must provide built-in safeguards to ensure that it is not abused, eg an enquiry to establish the breach of the rules before the sanction is imposed.
In any event: a word of advice to potential sectional titles unit buyers – read the "management" and "conduct" rules first. That will tell you what kind of a situation you are moving into.
The strategy of our uppity unitholder is to quietly and intermittently carry on adding to the unauthorised structure until it slowly becomes a fait accompli, something already done and beyond alteration. Numerous warnings have been issued by the body corporate, but to no avail. What is the remedy of the body corporate, in other words the other owners in the complex ?
One thing one can try is to persuade the building inspector of your local authority to issue a cease and desist order in terms of their bylaws. This will cost the body corporate nothing and should have the desired effect, providing you can get your local authority to co-operate.
Another possibility is to apply for what is called a mandatory interdict that, if granted by the court, will consist of an order that the recalcitrant unitholder not only cease further construction but also dismantle what has already been constructed without due authority. A problem is that one needs to show prejudice and the lack of an alternative remedy in order to succeed in obtaining an interdict of this kind. In certain circumstances this could be difficult for the body corporate to show: the additional construction might be ugly but does it really prejudice anyone ?
The other alternative is to resort to arbitration in terms of Management Rule 71 under the Sectional Titles Act 95 of 1986. This has plusses and minuses. One plus is its relative speed when compared to the courts. One authority [Prof C G v d Merwe, author of Sectional Titles, Butterworths, looseleaf (not the English equivalent of Loslyf), updated to 28 February 2006, p 9-19] maintains that cost-effectiveness is another. I am not so sure about that. The state pays for the judge in the courts – the parties have to pay for the arbitrator in arbitration and this can also be expensive.
The learned author (we lawyers use these old-fashioned courtesies towards each other) also says another plus is that arbitration "offers better safeguards against procedural irregulations [sic – I presume he means 'irregularities'] by virtue of the provisions of the Arbitration Act 42 of 1965, that will apply to any arbitration proceedings in terms of the Sectional Titles Act".
What should also be considered is an amendment to the conduct rules imposing fines on unitholders who break those rules and the power to request an amount as security for future transgressions. This is a speedy and inexpensive remedy but the rule must provide built-in safeguards to ensure that it is not abused, eg an enquiry to establish the breach of the rules before the sanction is imposed.
In any event: a word of advice to potential sectional titles unit buyers – read the "management" and "conduct" rules first. That will tell you what kind of a situation you are moving into.
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