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  • If I am married in community of property, what can I leave in my will?

    A client asked: What are the implications when folks get married in community of property after a property was purchased in any one’s name, draw up a will and one passes away?

    If a couple get married in community of property, they share equally in the assets and liabilities of their joint estate (whether acquired or incurred before or during the marriage).

    So, if the husband owned a property before the marriage, on death or divorce, the wife becomes entitled to half the net value of the joint estate (i.e. half of all their combined assets less all its joint liabilities).

    What that means is that a spouse can only leave his or her half share of the joint estate, in a will. If a will says “I leave my estate to my mother”, “my estate” means his or her net half of the joint estate.

     


  • Must I amend my will after a divorce?

    In the aftermath of a divorce, a person often forgets to amend his or her will. A bequest to your divorced spouse in your will, which was made prior to your divorce, will not necessary fall away after divorce.

    The Wills Act provides that if you die within three months of the divorce, a bequest to your divorced spouse will be deemed cancelled (except where you expressly provide otherwise). Basically, this provision allows a divorced person a period of three months to amend his/her will, after the trauma of a divorce. Should you fail to amend your will within three months after your divorce, your divorced spouse will benefit as indicated in the will.

    So, be warned, if you don’t want your ex to benefit any longer, change your will.


  • Non compos mentis

    A client asked me if she could still act on a power of attorney that her mom signed in her favour, now that her mom had been diagnosed with dementia.

    At law, a power of attorney terminates on the incapacity of person (who becomes incompetent in law and is deemed “to be of unsound mind and as such incapable of managing his affairs”).

    Once the power of attorney becomes invalid, the family must apply for administration or curatorship.

    Curatorship

    On behalf of the family, a lawyer applies to the High court for three things:

    • to declare the patient of unsound mind and incapable of managing his/her affairs;
    • to appoint a curator ad litem;
    • to appoint a curator bonis or curator personae or both;

    The curator ad litem is usually an advocate, who interviews two specialists regarding the patient’s mental facilities, and then reports back to the court whether the patient is of unsound mind and incapable of managing his/her affairs.

    If so, the court will appoint a curator. There are two forms of curatorship and one or both may be appointed:

    • the curator bonis administers the person’s property, including his finances;
    • the curator personae takes personal decisions for the person. This involves serious curtailment of the person’s rights and freedoms and the court is therefore not easily persuaded to grant such an appointment.

    Administration

    The Mental Health Care Act provides for the appointment of an administrator to manage the patient’s property.  This Act applies only to the mentally ill and to those with severe or profound intellectual disability.

    It is not necessary to go to the high court for this as you can apply direct to the Master of the High Court.  A mental health care practitioner who could be a general practitioner and not necessarily a psychiatrist – certifies that the person suffers from an illness or disability relating to mental health.

    The administration applies only if the capital assets of the patient’s estate is under R200,000 or earns an income of up to R24,000 per year.

    The Master appoints an interim administrator to investigate the patient’s finances, etc. and makes a recommendation to the Master.  In this case the costs payable to the investigator are negotiated by the Master, and are payable out of the estate.


  • What to do after an accident

    By Roy Bregman

    Bregman Moodley Attorneys


    What are your duties after a crash? What are your rights if you are injured or your car is damaged?

    Y0UR RIGHTS AND OBLIGATIONS AFTER A COLLISION

    If you are involved in involved in or contribute to an accident on a public road in which another person is killed or injured or suffers damages in respect of any property or animal, in terms of the Road Traffic Ordinances there are clear duties imposed on you. Here is what you should do:

    • Stop your vehicle immediately. Of course, you do not need to stop at an accident if, for example, you hit a tree and only damage your own car or injure yourself. There is a legal and, indeed, a moral obligation on you to report a collision to your nearest police station if you hit a lamp standard or say a stationary vehicle and the accident is not witnessed.
    • Check the nature and extent of any injury to another person.
    • If the person has been hurt, do all you can to help by administering first aid, (if you know how), summons the police and, if necessary, an ambulance. If you know nothing about first aid, please do not try to render assistance as this may do more harm than good!
    • Determine the nature and extent of any damage suffered.
    • If you are required to do so by any person entitled to such information, provide and obtain the following information:
    • name, address and telephone number of both drivers name, address and telephone number of the owners of the vehicles
    • registration numbers of both vehicles
    • names of the driver’sowner’s insurance companyinsurance broker
    • full details of the place and time of the collision and the road conditions and visibility at the time
    • make a short note (to jog your memory) of what you recall occurred immediately before and at the time of the collision (including a description of what happened, the speed at which the vehicles were travelling, whether the lights were on or off, whether the other driver was indicating etc)
    • if you are fortunate enough to have a camera with you at the time of the collision, take photographs of the scene of the collision from various angles. If not, it is always a good idea to return to the scene as soon as possible thereafter, to take the necessary photographs
    • measure distances from the point of the collision to identifiable landmarks such as traffic lights, lamp standards, stop signs and the like and make a rough sketch showing the position of the vehicles immediately before and after the collision
    • if you are fortunate enough to have witnesses, make sure to take down their full names, addresses and telephone numbers
    • do not admit liability for the collision, whether to the driver of the other car, a bystander or to the Police, as this may prejudice any claim that you may have either against the other driver or in respect of your policy of insurance . On the other hand, if the other driver apologizes for the collision ...
    • Customary Marriages: I think I’m married, but am i?

      The Recognition of Customary Marriages Act, 120 of 1998, that came into operation on 15 November 2000, gives full legal recognition to customary marriages in South Africa. The following summarises the position:

      • The law recognises your customary marriage if:
        • you and your spouse are both older than 18;
        • You have both agreed to be married under customary law;
        • You negotiated and celebrated your marriage following the rules set out in customary law.
      • Even though the husband does not need pay Lobola for the marriage to be recognised by the law, payment of Lobola helps to show that you followed the traditions of customary marriage (the customs and usages traditionally observed among the indigenous African peoples of South Africa and which forms part of the culture of those people);
      • If you are married under customary law, you should (but don’t have to) register your marriage with the Department of Home Affairs;

      So what proof do you have that you are married under customary law if you haven’t registered the marriage at the Department of home affairs? Do you have a written contract in place, formalising the agreement between the parties?

      There have been several cases where parties had to go to court to ask for an order declaring that they had been married. For example, in the case of Motsoatsoa v Roro and Others the ‘wife’ asked for an order declaring that a customary marriage existed between her and her late ‘husband’. The court found that, in fact, no customary marriage was entered into between the applicant and the deceased.

      In the matter of Southon v Moropane the applicant sought an order that she was married to the respondent. The court agreed and found:

      Having considered all of the factual matrix, the testimony of the witnesses, the experts’ testimony, the academic writings, case law, practices in the community and the authorities, in my view the essentials of a customary marriage between the plaintiff and the defendant in terms of s 3(1) of the Recognition Act were fulfilled. Both parties consented to marry each other according to customary law, and their marriage was negotiated, celebrated and entered into in accordance with customary law.

      Why should it be necessary to go to court, at huge expense and at great risk, to prove that you are married? If you haven’t registered the marriage at Home Affairs, do so. Alternatively, put together a Lobola agreement.

      We believe that this will help thousands of people who have entered into a customary marriage but now do not have any proof. This would secure the future of their children in case anything happens to the breadwinner and will also prevent family conflict as the assets of the deceased would automatically be the assets of the surviving spouse and the children.

      The agreement would record the intention of the parties about their traditional wedding. The document would be a simple contract which would reflect:

      1. The names of the parties ;
      2. The date of the traditional marriage ;
      • The intention of the parties with regards to the joint estate in the ...
      • Are You Being Abused?

        You can apply for a Protection Order which can protect you from further abuse.

        How are you being abused?

        Physical abuse: pushing, slapping, punching, kicking, burning, biting, stabbing.

        Verbal abuse: putting you down, name- calling, yelling, and belittling you.

        Sexual abuse: having sex with you against your will, making you do sexual things you don’t want to do.

        Controlling your movement: or keeping you locked in the house, isolating you from family and friends, monitoring your phone calls.

        Economic abuse: taking away your money, refusing to provide enough money for household expenses, not paying maintenance when he can afford to do so.

        Abusing power: always claiming to be right, telling you what to do, and making decisions without consulting you.

        Threat with guns or knives: attempting to scare or kill you or your children.

        Forced entry: making uninvited calls and visit, refusing to leave when asked.

        Stalking you: following you wherever you go, phoning you all the time to check where you are?

        Saying the abuse is your fault: pretending that he never hurt you, blaming all his problems on you.

        Abusing your children: verbal and physical abuse, sexual abuse, forcing your children to monitor your telephone calls or who visit you, using your children to steal.

        Damaging your property: tearing your clothes, burning your belongings, destroying important documents, e.g. ID book/ passport, damaging your furniture.

        Who do I contact?

        If you need more information or help with a problem of domestic violence you can:

        • Talk to a health worker at your local clinic
        • Talk to a counselor from your local NGO or welfare office
        • Phone the national toll-free Stop Women Abuse hotline – 0800150150

        How can the police help me with a problem of domestic violence?

        If you report a case of domestic violence to the police:

        • They will tell you about your rights and how to get a protection order
        • They can send a police officer to your home to protect you from further abuse. They can also take away the abuser’s weapons if he is threatening you.
        • They can help you find a shelter and a counseling service.
        • They can also help you get medical care.
        • They must arrest the abuser if he does not obey the protection order.

        If a police officer does not help you, you can report him or her to the Station Commissioner. You can also contact your local police Area Commissioner, or the offices of the Independent Complaints Directorate (ICD).

        ICD HEAD OFFICE: Maphetang Foolo 012 320-0434
        GAUTENG 011 838 2875/6
        MPUMALANGA 013 752 4316
        NORTHERN PROVINCE 015 295 5561/5
        NORTH WEST PROVINCE 018 381 1490
        FREE STATE 051 522 9856
        KWAZULU/ NATAL 031 305 8370
        EASTERN CAPE 043 642 1667
        NORTHERN CAPE 053 831 7390
        WESTERN CAPE 021 426 0700

         


      • How To Get A Protection Order

        Domestic violence is the term used when a person in a household abuses another person with whom he or she is living. It occurs between people who are in a relationship with each other. These relationships include married couples, dating couples, ex-partners, children, and members of the same household.

        Domestic violence occurs on a daily basis but people are still afraid to talk about it. There are also many wrong perceptions regarding domestic violence. These include the perception that domestic violence is a family problem and should be treated as a private matter.

        There is also a perception that domestic violence happens only to certain kinds of people. The truth is that domestic violence can happen to anyone.

        Forms of domestic violence include physical violence, sexual abuse, emotional and psychological abuse and economic abuse.

        How to get out of an abusive relationship

        1. An abused person needs to acknowledge that he or she is in an abusive relationship and that it is not his or her fault.
        2. Get help. Talk to family members or friends or go to the police.
        3. Contact advisory centres or support groups in your area. You can get their details at the police station.
        4. If you have no place to go to, you can apply to move into a shelter.
        5. Get a protection order.

        Protection order

        To get a protection order, an abused person must apply at the magistrate’s court nearest where he or she lives or works or where the abuser lives or works. You go to court on two separate days. The first time is when you make an application for a protection order. The magistrate will give you a temporary order. A return date will be set and you have to go back to the court for the second time. The abuser is also called to appear in court on this day.

        The process is as follows:

        Step 1

        • You go to the magistrate’s court and apply for a protection order.
        • Take with you any documents like medical reports, photographs of the injuries, supporting affidavits from family members, neighbours or children who know about the abuse. You must also take your Identity Document and details of the abuser, such as his or her work address and home address.

        Step 2

        • The magistrate will listen to your story and read any affidavits that you have brought with you. The magistrate will then give you a temporary protection order, if he or she considers this appropriate.
        • You can also ask the magistrate:

        –          To have the abuser’s firearm taken away if he or she has threatened you with it.

        –          For the police to come with you to collect your belongings at your home.

        –          For the abuser to be evicted from the home you share.

        Step 3

        • The sheriff of the court or the police will serve the protection order on the abuser.
        • The protection order tells the abuser that he or she must be at court on a date written on the protection order.

        Step 4

        • You must go to court on the date written on the protection order. The abuser should also be there.
        • Both of you will get an opportunity to tell ...
        • Booze at work – An Employer’s Liability For Alcohol In The Workplace

          With Christmas just around the corner, this article may be appropriate to employers who host Friday afternoon office parties

          Your employees relax in the office pub on a Friday afternoon. They get a bit tipsy and one employee has a car accident on the way home. Are you, as the employer, liable for damage caused to a third party by an intoxicated employee?

          In South Africa, employers can be held responsible for damage caused to others by an employee acting within the course and scope of their employment. This is called vicarious liability. Our courts have not yet pronounced on whether an employer is liable for damage caused by an employee who has consumed alcohol above the prescribed legal limit, but who is not acting in the course and scope of his employment. According to the AA of SA:

          In South Africa, the legal limit is a breath alcohol content of 0.24mg per 1,000ml, or a blood alcohol limit of 0.05g per 100ml, a fact that should be burnt into every motorist’s memory. This begs the question: ‘What does this mean for me, and what specifically constitutes being over the limit?”

          The rule of thumb is a maximum of one unit of alcohol per hour, which constitutes 10ml of pure alcohol, based on an adult weighing 68kg. Our bodies can process only one unit of alcohol each hour. However, it is important to be aware that if you weigh less than 68kg your body will need more time to process the same amount of alcohol.

          In Canada, courts have held employers liable for harm sustained by employees involved in accidents following work functions from which they drove home over the legal limit. In Jacobson v Nike Canada, the court held that if the employer had at least attempted to prevent its employee from driving home by confiscating his keys or calling a taxi for him it would have been absolved of a considerable amount of its liability.

          Although this specific issue has not yet been dealt with by South African courts, it is likely that when faced with such a matter a South African court would probably decide the matter in much the same way as the Canadian courts did.

          The rationale behind the decision is that an employer hosting a function owes a duty to its employees. After a function, an employer should, at least, confiscate the keys of drunken employees and offer them a ride home


           

        • Thinking of getting divorced?

          How divorce works

          Once a married couple (whether married according to civil or customary law) has decided to get divorced, the person suing for divorce (the “Plaintiff”) needs to prepare a divorce summons, either through the High Court or the Family Court at a local Magistrates’ Court, suing the other spouse (“the Defendant”).

          The person suing for divorce needs to show the court that the marriage has irretrievably   broken down. Evidence to support this could be that the parties don’t love each other any longer, that they have been living apart for a long time, one partner has cheated, or that there was physical or mental abuse involved in the relationship. Other grounds of divorce are that one party is in a coma or is permanently mentally ill.

          The summons

          The summons would include details such as how you split assets, who the kids live with, maintenance, visitation rights and responsibilities and rights of the parents regarding the kids.

          Ideally, the parties will enter into a written agreement of settlement, recording these issues, that is made a court order. In this way, the marriage will proceed on an unopposed basis. This is much cheaper and reduces conflict.

          The Sheriff of the Court will serve the summons on the Defendant. In some cases, the Defendant may decide to oppose the summons, in which case his or her attorney will send back a Plea (answer to the summons).

          If the matter is unopposed, the Plaintiff applies for a court date, and sets the matter down.

          If the matter is opposed, the lawyers for each side will exchange ‘pleadings’ and will set the matter down once the matter is ripe for hearing. This could take years and will cost a fortune. Unless you have limitless funds, rather settle, with help from a friend, mediator, priest or pastor.

          Using a lawyer

          The most frightening aspect of instructing an attorney is the prospect of high legal fees. Relax. We charge an agreed fee with you, up front, and will not bill you for every phone call or by the hour.

          We’ll meet with you and hold your hand throughout the process, help you decide on how to divide your assets fairly and work out what is best for your children. We’ll help you to minimize the cost and stress of a divorce. Our fee includes all consultations and putting together a settlement agreement that will be made a court order. If money is tight, we will accept reasonable instalments.

          Interested? Email roy@bregmans.co.za for more information.


           

        • How to get that noisy neighbour to shut up

          I am often asked what a person can do about excessive noise coming from a neighbour’s property.

          The term ‘nuisance’ is derived from the Latin word nocere which means ‘to harm’.

          A person may sue his neighbour for damages suffered as a result of excessive noise caused by the neighbour. The person must show that that the noise has detrimentally affected his quality of life, his health, comfort or well-being. An interdict is also available in these instances and can be granted if the neighbour’s conduct is unlawful or threatens to be unlawful. The factors that are normally considered in determining whether the defendant’s conduct was unlawful include the type of noise, the degree of its persistence, the locality involved and the times when the noise is heard. No fixed standard is available to determine the unlawfulness of the defendant’s conduct, the criterion being ‘not the individual reaction of a delicate or highly sensitive person who truthfully complains that he finds the noise to be intolerable is to be decisive, but the reaction of the ‘reasonable man’, one who, according to ordinary standards of comfort and convenience, and without any peculiar sensitivity to the particular noise, would find it, if not quite intolerable, a serious impediment to the ordinary and reasonable enjoyment of his property’.

          In Prinsloo v Shaw 1938 AD 570 575 the court stated: ‘A resident in a town, and more particularly a resident in a residential neighbourhood, is entitled to the ordinary comfort and convenience of his home, and if owing to the actions of his neighbour he is subjected to annoyance or inconvenience greater than that to which a normal person must be expected to submit in contact with his fellow-men, then he has a legal remedy’.


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