Jessica Schwenn

What makes a will valid according to the law of succession?

A will is meant to be a voluntary and unilateral document which expresses the wishes of the Testator.

The will usually contains three things:

  1. The bequeathed assets;
  2. The extent of interest bequeathed in the assets; and
  3. The identity of the beneficiaries who would inherit such assets.

No will is valid however, unless it contains the following:

  • The will MUST be signed by the Testator or by a person in the Testator’s presence and by his direction;
  • If there is more than one page of the will, each page must be signed at the end by the Testator;
  • The signature must be done in the presence of two or more competent witnesses present at the same time of each other and the Testator;
  • If the Testator cannot sign the will and can only leave a mark it must be in the presence of a commissioner of oaths who certifies that he is satisfied to the identity of the Testator and that the will is that of the Testators and the commissioner must sign each page.
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Jessica Schwenn

The Summons

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Many people do not know what a summons is and if they do they do now know the full extent of details for which it should hold.

 

There are two main types of Summons namely:

  1. A Combined Summons: this is mainly used where one is not suing on a liquidated demand or debt; and
  2. A Simple Summons: this is used when one is suing another based on a liquidated debt.

It is important to note that certain things MUST be on the summons for same to be valid, same would include:

  • Where the Plaintiff is represented by an attorney the attorneys address and contact details must be listed on the summons (this is the same if the Plaintiff is representing him/herself).
  • The Plaintiff and/ or his representative must be within 15km of the court out of which they are suing out of.
  • The Summons must be signed by the Plaintiff/ his attorney as well as the clerk of the court who will allocate a stamp that must bear the address and name of the court and the date which the case number was allocated to the summons.
  • The Summons must include a Notice of Intention to Defend and a Consent to Judgment (unless it is a divorce than a consent to judgment is not needed).
  • The Jurisdiction of the court must be mentioned and explained in the summons as to why the court has the rights to hear this matter.
  • There must be a proper statement of facts and a proper relief sought within the summons including the prayer of interest.

Contact us today to assist you in reclaiming money back or issuing a summons on 0310030630 or email us on Jessica@schwenninc.co.za

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Jessica Schwenn

Alert level 3 regulations as amended in January 2021.

Many of us are so confused as to what our rights under these various alert levels are especially when they keep changing. This blog is a list of the regulations as newly amended in January 2021.

 

  • Curfew has been changed to the hours of 21:00pm – 05:00am. This curfew however does not apply where there is a security or medical emergency or where one is working as an essential worker;
  • Failure to abide by any of the regulations will result in a fine or imprisonment not exceeding six months;
  • All establishments whether they are indoor or outdoor must close at 20:00 hours;
  • Face masks covering the nose and mouth must be worn in a public place with exception of a child under the age of 6 years old;
  • Employees must at all times perform their duties wearing a mask;
  • Employers must according to the space in square metres, determine the number of customers and employees in the building and ensure proper social distancing and hygiene conditions are adhered to;
  • All banks must ensure that ATM’s have hand sanitizers available and that social distancing is being adhered to;
  • Funerals are limited to 50 people with a distance of one and a half metres required. No night vigils or after funeral gatherings are allowed and the duration of funerals are a maximum of two hours during which face masks must be worn at all times;
  • All social, faith based, political and traditional council meetings are prohibited;
  • Gatherings at cinemas, casinos, museums and libraries are limited to 50 persons at a time;
  • Gatherings at sports grounds, beaches, lakes, dams, rivers or any recreational facilities are prohibited but game parks, aquariums, botanical gardens and zoos are open between the hours of 9:00am and 18:00pm;
  • Gyms are open for 50 people at a time;
  • Evictions and demolitions can only take place by way of a court order and a court can decide to suspend or stay an order depending on various guidelines;
  • Visits to correctional centres are prohibited;
  • All ports and entry into South Africa are closed (with the exception of certain goods);
  • International travel is restricted;
  • Public transport can only hold 70% of its licensed capacity for long distance travel (200km);
  • The distribution, transportation, tasting or consumption of liquor is all prohibited.

 

For more information on any of the regulations please do not hesitate to contact us at Schwenn Incorporated Attorneys on 031 003 0630 or email us on Jessica@schwenninc.co.za.

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Jessica Schwenn

Quick steps for the Executor to follow in an estate

  • The Deceased’s Estate must be reported in the jurisdiction where he/she lived at the time of death;
  • The Executors duties arise as soon as the Master of the High Court issues them with a Letter of Executorship and will only terminate should he/she dies or where the Master or the Court relieves them;
  • The Executor must meet with the family of the deceased and get certain documentation such as the Death Certificate, a list of assets and liabilities and a Marriage Certificate or Antenuptial Contract if the deceased was married in community of property;
  • A notice must go out to the creditors to inform them of the deceased’s death and allow them the chance to institute claims against the estate. This notice is published in the Government Gazette and the local newspaper where the deceased lived at the time of death;
  • All bank accounts that are open at the time of death are closed and the funds are transferred into a separate bank account called an estate late bank account;
  • Thereafter a Liquidation and Distribution account needs to be drafted to discover who gets paid, who gets what assets and which liabilities are outstanding. This needs to be advertised and once approved by the master creditors needs to be paid and assets distributed. This has to be done six months after the date of appointment;
  • Proof of distribution needs to be lodged with the master after which the master will issue you with a filing notice from which you will be relieved from your duties.
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Jessica Schwenn

What does the Companies Act say about delinquent Directors?

The Companies Act gives certain persons the right to apply for a court order to declare a Director as delinquent and whereafter imposing restrictive conditions on said Director.

 

According to Section 162(2) those who may apply for an order to declare a Director delinquent are:

  1. A shareholder;
  2. A Director;
  3. A company Secretary;
  4. Prescribed officer;
  5. A registered Trade Union;
  6. An Organ of State or;
  7. CIPC itself.

 

There are certain reasons or categories of behaviour in which the Director must act to classify himself/herself as a delinquent this would be one of the following but not limited to:

  1. Where the Director consented to act when he/ she was disqualified;
  2. When he/she was under an order of probation;
  3. Where a Director grossly abused their position;
  4. Where they took personal advantage of information or by intentional or by gross negligence caused harm to the company;
  5. Has been convicted of the same offence twice before or subjected to an administrative penalty before

 

In the event where the court finds that an order of delinquency is too harsh then the court may rather declare an order of probation. Some of the grounds of probation are but are not limited to:

  1. Where the Director was present at a meeting and failed to vote;
  2. Acting in such a way that is inconsistent with their duties; or
  3. Where the director acts oppressively or unfairly.

 

A director who has been declared a delinquent may have an order that is conditional or unconditional and the conditions may last from 7 years or longer depending on the nature of the conduct of the director. Certain conditions could include a payment of damages or being supervised by a mentor or alternatively being disqualified as a director altogether.

According to the Act if a Director has been qualified as a delinquent Director then after a period of three years he/she can apply to the court to suspend the order or apply to substitute same to an order of probation.

 

What is the public register?

In many cases people are not honest about their past history with those they get into business with. This is the reason why the Companies Act requires CIPC to have and maintain a public register of disqualified persons from serving as Directors.

 

In Conclusion

It matters not what type of business is created the Companies Act allows for liability of Directors in all businesses and although the Act has allowed many freedoms it makes sure that misconduct is dealt with strictly.

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Jessica Schwenn

What are the parental rights and responsibilities of an unmarried father?

A father will have his parental rights and responsibilities in respect of the child if at the time of the birth he was living with the mother in a permanent life partnership or :

  1. Consents to be identified as the father;
  2. Contributes to the child’s upbringing for a reasonable period; and
  3. Contributed towards expenses with the maintenance of the child for a reasonable period.

 

These rights and responsibilities are in accordance with Section 21 of the Children’s Act and whether or not the father has rights and responsibilities does not affect his duties to contribute towards the maintenance of the child.

 

A court can terminate a parents rights and responsibilities but according to section  to Section 28 of the Act, the court will have to take into consideration:

  1. The best interests of the child;
  2. The relationship between the child and the person whose rights are challenged;
  3. The degree of commitment the parent has shown toward the child and;
  4. Any other relevant factor the court may find important.
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Jessica Schwenn

What is the Compensation Fund and who can benefit from compensation fund?

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The Compensation Fund provides compensation to employees who are injured or contract diseases through the course of their employment. This includes an assessment of the industry structure, the claims process, coverage and how employer contributions are determined.

Who is a pensioner for purposes of the Compensation Fund?

  1. An employee
  2. A spouse who has lost a partner
  3. Surviving children of the deceased on duty below 18 years and if still furthering studies should provide sufficient proof
  4. A wholly dependent family member such as a sister, brother, mother or father (only stop receiving the fund once they marry).

What happens if an employee contracts a disease on duty?

The employer has a duty to report the injury or the contraction within a period of 7 days from the date of knowledge of contraction.

The process then begins where the Compensation Fund registers the claim. The Compensation Fund team will gather and discuss the level of the injury and assess it. On a scale of 30% an employee qualifies for a lump sum as compensation paid out to the employee by the Compensation Fund. However, if the degrees of the injury are 31% and above the employee is deemed to be a pensioner and is entitled to receive pension till death.

Is there a deadline date put in place for submission of the application for compensation?

No, there is no deadline the Compensation Fund. The Compensation Fund deals it on a case by case basis until all particulars required for the registration process of the claim is completed. It must also be noted that the turnaround time also varies from case to case.

What happens in a case where the employer is negligent and not paying attention to the employees’ injury?

It often happens that employers are hesitant or neglect an employee who has sustained an injury on duty or contract a disease while in the scope of his/ her employment. The Compensation Fund permits an employee to approach them directly and lodge the claim in case where the employer refuses or neglects reporting and lodging a claim with the Compensation Fund. The Compensation Fund will then approach the employer about reporting and registration of the claim. Claims registered by employees personally are accepted.

In summary this means that if you are injured on duty or a family member dies while in the scope of employment you entitled to lodge a claim for compensation or loss of support and should the employer not stand up to reporting and registration of the injury on duty an employee is permitted to report personally and the Compensation Fund will then deal with the employer.

Written by Portia Dlamini

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