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?

Schwenn-Inc-logo

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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Jessica Schwenn

OWNING A FIREARM

A couple of years ago it was much easier to apply for a firearm license than today. The buyer was able to purchase the firearm and submit the SAPS documentation for their application to possess a firearm. Upon the approval of the firearm license, you were then able to collect the purchased firearm from the dealer.

 

Nowadays, there are various criteria’s you have to meet before applying for your firearm license.

  • You must be 21 years of age;
  • You must be a South African citizen or permanent residence permit holder;
  • You must pass a thorough background check by the SAPS;
  • You must be declared mentally stable and fit;
  • You may not be addicted to any drugs or alcohol;
  • You may not be convicted criminal or have a criminal record.
  • You must know how to use a firearm (you must have successfully be found competent in a basic training course at an accredited training institution).

 

HOW TO APPLY

 

Firstly, you have to attend prescribed training at an accredited facility which will thereafter issue you with the relevant certificate upon the completion of a theoretical and practical examination to be found competent in either a handgun, shot gun or rifle.

 

Secondly, you apply for a competency certificate to state that you are competent to own a firearm.

  • You need to complete the relevant SAPS application form and submit it to the Designated Firearms Officer (DFO) at your nearest police station.
  • You will need to have a certified copy of your training certificate and ID document/card;
  • You will need x2 passport photos;
  • You would also be required to provide three motivational letters from family/friends about your character / the kind of person you are.
  • You would also need to provide a letter of motivation as to why you require the competency certificate.
  • You must pay the prescribed fees.
  • You will need to have your fingerprints taken at your Police Station where you are applying for the competency to determine whether you have a criminal record or not in order for the competency to be approved.

This process can take up to 90 working days for approval.

 

Thirdly, you apply for your firearm license.

  • You will need submit your application form for the respective firearm that was purchased from the firearm dealer at the police station nearest to your home.
  • You must provide 2 passport size color photographs not older than 3 months.
  • You’ll need to provide a certified copy of your ID.
  • You must present the original competency certificate and a certified copy for the firearm license.
  • You must provide a certified copy of your permanent residence permit in the case of a non-SA citizen.
  • You must provide a copy of a recent utility account reflecting your residential address (cannot be older than 3 months old).
  • You’ll be asked to give proper motivation indicating why you need a firearm for the respective section (S13, 15 and/or 16).
  • You must pay the prescribed fees.

 

This process takes approximately 90 working days.

 

 

Renewing your firearm license

 

All firearms licenses must be renewed every:

  • 5 years for business purposes (S13).
  • 5 years for self-defence (S13).
  • 10 years for hunting or sports-related shooting (S15 & 16).

 

If you own a firearm you need to renew your license and competency certificate at least 90 days before the expiry date of your license. If you don’t you’ll have to dispose of the firearm or hand it over to the SAPS. It’s important to keep in mind that it’s illegal to be in possession of a firearm without a valid license.

What are my responsibilities if I own or want to own a firearm?

 

  • Ensure that the firearm doesn’t land in the wrong hands and that it’s not used for crime.
  • Stay away from drugs and alcohol.
  • Comply with the Domestic Violence Act.
  • You can only buy a firearm from a registered dealer.
  • You need to report a lost, stolen firearm or damaged documents to the police within 24 hours.
  • You may only own 200 rounds of ammunition for each firearm.
  • You can only have ammunition that’s suitable for that firearm.
  • Never leave another person in possession of your firearm unless authorized to do so by SAPS.

 

 

Written by Petricia Martin.

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Jessica Schwenn

RIGHT TO INHERIT BY OPPOSITE SEX LIFE PARTNER ORDERED BY CAPE TOWN HIGH COURT

Ms Bwanya and Mr Ruch were involved in a long term romantic relationship, supporting each other financially and living together like a married couple. They intended to marry and were engaged but did not have the opportunity before Mr Ruch passed away.

 

Mr Ruch left a will and his only heir was his mother who was recently deceased. Ms Bwanya submitted a claim to the Executor and Master for a Universal Partnership in order to inherit from Mr Ruch’s estate. This was rejected by the Master and she was directed to approach the courts to prove her claim.

 

The Cape Town High Court declared that part of the Intestate Succession Act is unconstitutional as it excludes opposite sex persons in a permanent life partnership. Ms Bwanya has been granted the right to inherit from Mr Ruch’s estate as a permanent life partner.

 

This issue may still be tested by the Constitutional Court and the Intestate Succession Act will have to be amended to include permanent life partners. This is a very interesting development in our law!

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Jessica Schwenn

Dear clients and colleagues

What a difficult year it has been and for us at Schwenn Incorporated the past few months have been incredibly difficult after loosing our founder Charmaine.

Charmaine was a force to be reckoned with, a woman that could truly light up a room with her smile, she is irreplaceable and will forever be missed and it is because of her inspiring vision for Schwenn Inc that is the reason I had decided to keep the doors open and continue trading. I wanted to keep her legacy alive.

I write to you today to thank each and everyone of you for your overwhelming support throughout this time whether it be a phone call or message to check up on us, to passing a lead our way or a new client instruction – we are just beyond blessed and grateful.

The shoes of Charmaine’s are big shoes to fill out indeed and as I said before she is irreplaceable. However as director of Schwenn Inc I would like to assure you that the service provided is and always will be of a good quality as we try and go above and beyond for our clients.

If this year has taught me anything is that we need our people to get through tough times because the only way to get through them is together – by leaning on each other. To “our people” I really want to extend a big thank you because you are the reason we are still open today.

With gratitude from Jessica Schwenn and the Schwenn Inc team.

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Jessica Schwenn

CANCELLATION OF AN EXISTING BOND.

 Are you Confused and don’t know what to do or what the process entails of transferring the property from yourself to the purchaser? 

Please do not stress as we are here to hold your hand.

If the Seller has an existing bond on his/her property (which means he/she has taken a bond to purchase the existing property or further bond for renovations) and is deciding to sell his/her property, then the following has to be done:-

  • The seller will have to notify the bank that he/she has taken the bond with and tell them that the property is in the process of being sold.
  • If you cancel your bond early either within a year or two of purchasing your property, the bank is allowed to levy a 1% penalty on the outstanding bond amount which is deducted on date of registration. This means that on a R500 000.00 bond, the penalty fee is R5 000.00.
  • The bank will appoint an attorney to attend to the cancellation of the bond. The bank decides which conveyancing attorney will attend to the cancellation of the bond as they will know which attorneys are on the bond cancellation panel. The original title deed and mortgage bond will be forwarded to the cancellation attorneys.
  • The cancellation attorneys will prepare a consent to cancellation and will enclose the original title deed when proceeding with lodgment to the deed’s office.
  • The bank will forward the “cancellation figures” i.e. The exact amount still owing by the seller on his bond to the cancellation attorneys.
  • When the property is registered in the name of the purchaser and the seller’s bond is cancelled, the bank will be paid the outstanding amount owing to the bond on date of registration from the purchase price and the balance of the purchase price will be paid to the seller.
  • The seller is liable for the cancellation cost which gets paid to the cancellation attorneys on date of registration and this amount gets deducted from the purchase price before the seller receives the balance.
  • Should the attorneys not be same to attend to the transfer and cancellation of the bond, then the transferring attorneys must correspond closely with the cancellation attorney to ensure that the transfer documents and the cancellations documents are lodged in the Deeds Office simultaneously.
  • Please note that although your bond is paid up and it’s a NILL balance, you still have to cancel the existing mortgage bond at the Deeds Office and this is included in the cancellation attorneys fees.

 

HOPE THIS BLOG HELPED YOU.  DON’T STRESS – WE ARE HERE TO HELP YOU TO HAVE A FREE-FLOWING TRANSFER OF YOUR PROPERTY

Written by Annette Pillay.

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