ARE YOU OR SOMEONE YOU KNOW A VICTIM OF SEXUAL HARASSMENT?

 

What is sexual harassment?

Sexual harassment can be defined as any conduct of a sexual nature that is unwanted and that makes another person feel uncomfortable.

Sexual harassment can take many other forms such as:

  • Verbal;
  • Physical;
  • Sexual favouritism; and
  • Quid pro quo.

What are some examples of Sexual harassment?

If you are unsure what could constitute as sexual harassment some examples are:

  1. Any unwanted sexual statements: this would include any dirty jokes, explicit drawings, rating ones sexual performance, comments about one’s body. This can take the form by being verbal or written.
  2. Unwanted personal attention: this includes any phone calls, letters and any pressure of dates and unwanted sexual favour offers.
  3. Unwanted physical advances: This is the most obvious type. This includes hugging, touching, kissing, sexual assault and fondling.

 

Who can conduct an act of sexual harassment?

It is a myth that only fellow employees or supervisors are the only ones that commit acts of sexual harassment and that the rest cannot be claimed against. In reality the list includes but is not limited to the following people:

  1. Owners;
  2. Employers;
  3. Managers;
  4. Supervisors;
  5. Employee’s;
  6. Job applicants;
  7. Clients;
  8. Suppliers; and
  9. Contractors.

This list then shows that an act can be committed by anyone who has any dealings with the company or business.

 

What is my responsibility as an employee if I am a victim of sexual harassment?

This would be according to the code of good practice of your work place. The consensus between most codes of good practice and the Labour Relations Act states that an employee who either witnessed or is a victim of sexual harassment must report this to the human resources department of their workplace.

This report depending on the severity should usually be done in writing as proof where an investigation can take place wherein the perpetrator can go through a disciplinary hearing where his or her actions are proved.

The consequences of an incident going unreported gives the perpetrator power to continue their actions where it can escalate either on the current or new victim.

 

What are the employer’s responsibilities?

Once the supervisor or employer has become aware of any complaint of sexual harassment must immediately open an investigation to establish the liability of the accused. The employer also needs to ensure the victim that their matter has been taken seriously and that something is being done to establish the accused’s conduct and that if any that the necessary punishment will be given.

The employer usually sits and consults with both the victim and the accused to ascertain the problem and try to find out if there is a way to resolve the issue between the parties.

If it has been established that the employee has indeed committed such an offence then the employer must conduct a disciplinary hearing and depending on the severity the employer must fire the employee.

 

What are my other options?

If a matter has not been resolved in 30 days after the complaint is lodged then a case may be lodged at the CCMA whereby the usual proceedings of Conciliation, Arbitration and Mediation will take place. If the employer has found to be negligent in not resolving the dispute the employer and the accused can be found guilty jointly and severally.

One may also however lay a criminal charge against the accused.

What can Schwenn Incorporated do for me?

Schwenn Incorporated prides itself in helping both individuals and companies so whether you are an employee or employer who needs help whether it is looking at contracts, litigation, holding a mediation or arbitration or drafting a solid code of practice we can help you. You can contact Schwenn Incorporated at 031 003 0630 or contact Charmaine Schwenn on Charmaine@schwenninc.co.za.

 

 

DEBT RELIEF BILL: LOW-INCOME CONSUMERS TO HAVE THEIR DEBTS WRITTEN-OFF

The portfolio committee on trade and industry proposed an amendment to the National Credit Act in order to provide debt relief to South Africans struggling with debts.

The Draft National Amendment Bill was published in the Government Gazzette on 24 November 2017 and has received much attention from different industries, including business, banking and government. Of concern is the possible effects the proposed amendment will have on these industries and how it will impact our economy.

In terms of the Bill, poor and low-income consumers who earn less than R7.500.00 per month and who have a total of not more than R50 000.00 of unsecured debts may apply, only once, to the National Credit Regulator (NCR) for debt intervention. This application is done by the consumer personally and is only for debts incurred up to 24 November 2017.

Once the consumer has made the application, the NCR will make a determination of whether the applicant requires the intervention or not. If the NCR is of the view that the applicant does require the assistance, a member of the National Credit Tribunal can suspend all credit agreements in part or in full. Further, if it appears that the financial situation of the consumer is not improving, the consumer can have his debts written off.

In terms of the World Bank report, South Africans are the world’s ‘biggest borrowers’ and cannot manage their debts responsibly. About half of credit-active consumers have impaired records. With so many people struggling with debts and qualifying for debt intervention in terms of the Bill, it raises concerns about the impact this will have for businesses and credit providers who followed the right procedures in granting credit.

Essentially what the Bill says is that if you once bought a Television set and a washing machine under credit when you could afford it but later lost your job or got more responsibilities, you can have your debts under those credit agreements extinguished but still keep the goods purchased in terms of the agreement. This differs entirely from what the NCA seeks to achieve, which is promoting fair, competitive, sustainable, responsible, efficient, effective and accessible credit market and industry; and to protect consumers while balancing the rights of suppliers.

The Bill also has the potential of deterring credit providers from giving credit to low-income consumers as there is a risk of them being written-off. The effect of this is that we will have consumers who are denied access to credit even if they have maintained good credit records, purely on the basis of being low income earners.

Further concern is that the Bill will encourage irresponsible behaviour by consumers who will be under the belief that they can have their debts extinguished.

Although the Bill is supposed to provide hope for low-earning consumers who are struggling to pay off their debts, it will have far-reaching consequences especially for our economy. With the Bill being at its final stages, retailers should brace themselves for a possible further cut of debts owed to them.

PROTECTION ORDERS AND THE FIGHT AGAISNT DOMESTIC VIOLENCE

 

Family Law constitutes a large part of our practice at Schwenn Incorporated. Many cases dealing with divorce and the maintenance of children unfortunately include or coincide with protection orders.

Unfortunately Domestic Violence incidences have not decreased but we have seen a substantial increase.

 

What is the definition of domestic violence?

This is any violence by one person onto another in a domestic setting such as a marriage or cohabitation. The list includes but is in no way limited to: physical, sexual, psychological, financial and verbal abuse.

 

What are the statistics?

One in five South African women over the age of 18 years have experienced some type of physical violence. Those odds increase in the poorer communities where one in every three women has been a victim at one time or another in their lives.

A survey shows that 17% of women between the ages of 18-24 years have experienced violence just in the 12 months before the survey was taken. Women between the ages 65 years and older report in at 16.7%.The worst percentage rate however has to be that of separated and divorced women which comes in at 40%.

The SAPS report that 73.54% of crimes are against women, whether that be murder, rape or assault. The province with the highest percentage of domestic violence is Eastern Cape leading at 32%.

 

In any case involving Domestic Violence, the victim (complainant) must apply for a protection order to ensure that they are safe during the divorce or maintenance process.

 

How does one take out or apply for a protection order?

  1. The complainant must depose to an affidavit and complete an application at the relevant court;
  2. Supporting Affidavits by those who may have been witness to the abuse must also be made;
  3. These documents and any other supporting documents must be handed to the clerk of the nearest court;
  4. The application for a protection order is not only linked to the complainant but can be used for anyone who has an interest such as a mother and a child;
  5. Once the court has granted the application for a protection order, this is served by the SAPS on the perpetrator;
  6. In urgent situations, the court may issue a warrant of arrest simultaneously, to ensure the protection of the complainant and my affected persons.

 

The Domestic Violence Act puts pressure on government officials such as the police and the courts to follow through with domestic violence cases which makes them less likely to be withdrawn or ignored as an effort to make sure that no one falls through the proverbial cracks.

 

How we can help you:

Domestic violence is a criminal offence. As attorneys we can assist you with claims for damages, whether that be for medical expenses, damage to property or to a third party.

We at Schwenn Incorporated can help you claim your dignity back and help you stand up against abuse. Remember that all information is confidential and privileged. Call us today on 0315631874/0837897638 or email us at Charmaine@schwenninc.co.za for more information.

 

 

COMPANIES : ARE YOU WILLING TO GIVE 10% OF YOUR TURNOVER AWAY?

 The Companies and Intellectual Property Commission (CIPC) sent out a media release on the 31 May 2018 on cases in the High Court that they have won. These wins are related to Section 30 of the Companies Act which states that “every company is required to prepare its annual financial statements within 6 months after of end of its financial year”.

 

The Companies and Intellectual Property Commission (CIPC) objectives.

Among others, CIPC, has the responsibility to promote compliance in terms of the Companies Act efficiently and effectively in order to ensure the widest possible enforcement. This includes promoting the reliability of financial statements prepared and submitted by companies as well as monitoring compliance in terms of those financial statements.

 

What is the Independent Regulatory Board for Auditors (IRBA)?

Auditors of a company need to be independent and reliable in order to combat fraudulent activities. Therefore the IRBA is an organisation made up of many independent and reliable auditors that report to CIPC after their completion of an audit of a respective company and its financial records.

 

What do we know from the recent court decisions?

IRBA have reported a major failure by companies to comply with section 30 of the Act in that they were not submitting their financial statements within the prescribed period either in full or at all.

IRBA then reported their findings to CIPC in order for CIPC to follow out their objectives and enforce compliance. CIPC sent these various companies Compliance Notices which were in turn ignored.

CIPC then sent the companies Administrative fines for the period of non-compliance and again such was done to no avail.

 

Which are the major companies involved in the failure to comply?

The companies which gave the CIPC the most problems were Citiconnect, Blue Sky Air and Sisao Projects.

These were the major role players referred to in the Notice of Motion brought by CIPC. They brought a court application seeking an order by the court to enforce those Administrative fines.

 

What was the outcome?

The conclusion of these cases was in favour of CIPC. The Administrative fines were ordered to be paid by each company equal to 10% of their turnover during the entire period that these companies showed non-compliance!

 

CIPC’s concluding remarks are that they “strive to rectify conduct that goes against the spirit of the Companies Act through high standards of corporate governance and high levels of transparency”. Our Question to you is, have you submitted you annual Financial Statements?

 

How can we help?

Schwenn Inc., Attorneys and Conveyancers can assist with your company secretarial duties and ensure that you are aware of these kinds of obligations.

people are happy when they have a successful mediation

RESOLVING A LABOUR DISPUTE THROUGH CONCILIATION & ARBITRATION

Many employers find themselves being served with notices to appear before the CCMA and wonder how it happened. This can either be because an employee of that company feels that he has been treated unfairly or that he was dismissed in a manner that is unfair. The big question then becomes: what does the CCMA do for parties involved in a labour dispute and whose side is it on?

The Labour Relations Act provides for first instance mechanisms which can be used to resolve labour disputes between employers and employees. Disputes that involve unfair labour practices and unfair dismissals are then considered through the statutory dispute resolutions (conciliation) before they can be transferred to arbitration or the Labour Court.

 

THE CCMA

The CCMA is a dispute resolution body established in terms of the Labour Relations Act (LRA). It is an independent body and does not belong to and is not controlled by any government entity, trade union or business. Any party can approach the CCMA to resolve a labour dispute; however you find that in most instances it is usually employees that refer matters to the CCMA. In the case of an unfair dismissal, an employee will have 30 days from when the dismissal took place to refer the matter to the CCMA for a resolution. In the event that an employee is subjected to an unfair labour practice, he must approach the CCMA within 90 days of such unfair conduct. The CCMA can however condone a late referral if the party referring the matter can provide good reasons for the late referral.

When approaching the CCMA, an employee would need to allege either an unfair dismissal or an unfair labour practice.

An employer is permitted to dismiss an employee for misconduct, incapacity and for operational requirements. Misconduct relates to the breaking or non-adherence to the rules and policies of the workplace. Incapacity is in respect of an employee which cannot perform his functions properly or to the standards set out. A dismissal due to operational requirements is when an employee is dismissed not because of fault on his part but because the company has no choice but to after considering its needs (retrenchment).

Although an employer would be allowed to dismiss an employee based on the reasons set out above, he would need to adopt the principles of substantive and procedural fairness as contained in the LRA when doing so. In terms of substantive fairness, an employer would need to have valid reasons for dismissing the employee. That is to say that the employee has broken the rules repeatedly or that he has failed or has not been able to improve his performance.

With regards to procedural fairness, an employer is required to follow the right and appropriate procedure when dismissing the employee. This is often how a lot of companies find themselves in trouble because they did not follow the right procedure. The procedure would obviously depend on the reason and type of dismissal, however, standard rules say that an employer would need to inform the employee of the allegations against him and the employee must be given sufficient time to prepare a response to the allegations put against him.

 

REFERRING A DISPUTE FOR CONCILIATION

In order to refer a dispute to the CCMA, an LRA7.11 form needs to be completed and submitted to the CCMA. This is the CCMA’s case referral form. This form will contain all your personal details as well as details about the dispute. A copy needs to be served on the other party so that they are fully aware of the process. Upon receiving your case, the CCMA will appoint a commissioner who will inform both parties of the referral, as well as when the first hearing will take place.

The purpose of this is to try and resolve the dispute first hand, thus avoiding the lengthy processes of arbitration from the CCMA or the Labour Court. Conciliation also gives parties a platform to consider and lay out their issues which can sometimes result in a settlement being reached. If the dispute is not resolved or 30 days have passed since the date of the referral and no conciliation was done, the commissioner will issue a certificate of outcome. Depending on the nature of the dispute, the case may be referred to the arbitration or the Labour Court.

 

ARBITRATION

Arbitration is a more formal process which includes the leading of evidence and the calling of witnesses. The party alleging the dispute to be the fault of the other bears the onus to prove his case. A dispute must be referred to arbitration within 3 months from the date on which the commissioner issued the conciliation certificate and is applied for by completing a request for arbitration form (LRA Form 7.13). An arbitration award is then issued stating reasons for the commissioner’s decision within 14 days of the conclusion of the arbitration.

Only certain disputes can be referred to arbitration and these include dismissals for conduct or performance, ‘constructive dismissal’ based on intolerable working conditions, harassment and unfair labour practices, etc. A party in a labour dispute is entitled to have legal representation at arbitration. An arbitrator must conduct himself in a fair and impartial manner as a neutral third party that is mediating. The arbitrator’s decision or ruling is binding on the parties and cannot be appealed but can be subject to a review.

 

REVIEW

Section 145 of the LRA provides that a party may apply to the Labour Court on the basis of an alleged defect with the commissioner’s ruling. The party alleging the misconduct or defect will have to make an application to the Labour Court to set the ruling aside. The award will be found to be defective if the arbitrator committed a gross irregularity in conducting the arbitration proceedings or went beyond his mandate/duties or facilitated an improper acquisition of an award in favour of one of the parties. Examples of these include, but not limited to, bias, aggression towards witnesses, rejecting evidence and failing to apply his mind in coming to a decision.

If a dismissed employee is successful in any of the above processes, he will be entitled to reinstatement. If he does not wish to go back to work, he will then be entitled to some compensation for the unfair dismissal. The award that was granted in arbitration will not be suspended during the review process. So if an employer was ordered to reinstate an employee, that award is enforceable from then on. So if an employer wishes to suspend the enforcement of the award pending the review, he would need to furnish security to the value of the award that was given.

 

Dealing with a whole of labour related disputes which can turn either way often gets parties to make decisions which they have not carefully considered. This can result in a huge waste of time and money and that is why it is best to try by all means to avoid going to the CCMA. The best thing you can do either as an employer or employee when involved in a labour dispute issue is to get legal advice on how to deal with the dispute. Even when the matter does end up in the CCMA, one should be prepared for the mediation and be open to settlement.

 

HOW WE CAN HELP

Schwenn Inc offers multi-disciplinary, innovative dispute resolution solutions that range from litigation to arbitration, conciliation, mediation and negotiation. We can help you with:

  • Drafting your Company’s Code of Conduct: Outlining the Company’s expectations and guiding principles for good and ethical workplace behaviour.
  • Advising on Disciplinary Procedures: This will ensure that in every labour dispute the company is involved in, the right procedures are followed in trying to resolve them, thus avoiding being taken to the CCMA or the Labour Court.
  • Reviewing your Company’s Employment Contracts: To establish whether the Company is protected in the event of disputes with its employees and to ensure that the contracts are clear on the relationship between the Company and its employees.
  • Chair Disciplinary Hearings: Schwenn Inc can facilitate a smooth, effective and rewarding mediation in the disciplinary procedures.
  • Assist in Preparing for the CCMA: Our firm can instil confidence in your Company when it is called to appear before the CCMA or Arbitration by preparing you for the hearings and the procedures.

The family:

Cape Town was once home to a wealthy family who was headed by father and businessman Martin Van Breda who was married to Teresa Van Breda who was the mother to Henri, Rudi and Marli Van Breda.

How it all began:

On the 27th of January 2015 the van Breda family lay in their own pools of blood while they were axed and stabbed to death. Among the family father and husband Martin, mother and wife Teresa as well as son and brother Rudi died in their Stellenbosch home. Sister and daughter Marli Van Breda was brutally attacked and somehow against all odds survived where she was rushed to hospital to the intensive care unit where she underwent many surgeries and therapy.

Henri Van Breda however was only found drenched in the blood of his family members as well as having sustained minor lacerations.

Henri told police and emergency services that a black man wearing dark clothing, gloves and a mask had broken into the family home where he went from room to room slaying each of his family members as he sat in the bathroom.

Henri who miraculously survived such a brutal attack immediately went to call his girlfriend at 4 am to which there was no answer. Henri then searched the internet for emergency numbers but only called the police some three hours later.

The aftermath:

After investigation the police found no fingerprints, foreign DNA or forced entry on the crime scene.

Henri Van Breda was then told to hand himself over to police which he did as he faced charges of murder and attempted murder. Henri was later released on bail on the condition that he reported to police and did not leave the Western Cape pending his pre-trial which was subsequently adjourned for time to gather DNA evidence.

Henry and his girlfriend were later found and arrested in Table View for the possession of cannabis which he later was released on bail.

In April 2018 the trial finally got underway after nearly 4 years without any justice for the victims where Henri made a plea of not guilty which enraged the community after everything they heard in the court room.

Why was Henri granted bail?:

The community was outraged when the news came that Henri was granted bail, not only once but twice! Many however don’t realize that bail is a way in which the court ensures the accused be present at court.

Here are the questions that a judge or magistrate needs to look at when granting a criminal bail:

  1. The likelihood that the accused will try evade his trial;
  2. The likelihood that the accused will try to influence and/or intimidate the potential state witnesses or conceal/destroy evidence;
  3. The likelihood that the accused will undermine or jeopardise the objectives or the proper functioning of the criminal justice system including the bail system;
  4. The likelihood that the accused will endanger the safety of the public or any particular person or will commit a schedule 1 offence;
  5. The likelihood that in exceptional circumstances the release of the accused will disturb the public order or undermine the public peace or security.

It was therefore found that 1-5 above could not be applied to Henri as he was not found to be guilty as well as the fact that he was in the care of family members at the time. The conditions of Henri’s bail are that he was not to leave the Cape area and he was to report in to local police officers on a regular basis.

Many people believe that it was unjust to have Henri released on bail after such a heinous crime. However, one should understand that the courts need to treat everyone innocent until proven guilty, and although Henri seemed to be the best suspect, there was no proof of such that the court could convict him on beyond a reasonable doubt.

  Pathology report:

Pathologist Dr Daphne Anthony who assessed the deceased and Marli made the following conclusions:

Marli Van Breda: her injuries were similar to those found on the other family members but she had multiple defense wounds that would suggest that she fought off her attacker stronger in force then the rest of her family.

Rudi Van Breda: he has said to have had the most horrific attack out of all the family as he was lying on his back when he was attacked throwing his hands up to defend himself before he was bludgeoned to death. Rudi was still alive for several hours after the attack as blood was found in his lungs and stomach as per his autopsy suggesting that he was still breathing and swallowing.

Martin Van Breda: he was said to have blood also found in his stomach stating that he was still alive after the attack, however, he did not see the attack coming.

Teresa Van Breda: she faced her attacker and tried to defend herself but died fairly instantly.

Motives of the attacker:

As Henri Van Breda’s story of the attack was found to be false he was left as the last suspect. Many speculated that Henri was cut off by his father as he was tired of his drug habits. These habits were confirmed by Henri’s drug dealer who testified against him stating that Henri was a regular customer of his. Henri however has not made any formal statements regarding his motives for killing his family as he still pleads not guilty.

Marli Van Breda:

Due to the severity of Marli’s injuries and after spending many months in surgery after surgery and physio therapy she has officially been diagnosed with retrograde amnesia which means that she has no recollection of the attack and therefore could not testify against her brother.

Marli has been kept away from Henri where she now stays with relatives. She has returned to school and is continuing her life as best she can.

Outcome of the case:

Judge Siraj Desai found Henri Van Breda to be guilty on three counts of murder and one count of attempted murder as well as obstructing the course of justice.

Van Breda was sentenced on the 7th June 2018 to life imprisonment for each of the three murders, 15 years for the attempted murder and one additional year for the obstructing the course of justice.

Henri Van Breda who was temporarily residing in the Pollsmoor Prison in the hospital wing for treatment of epilepsy and depression will now be moved to Paarl Correctional Facility to serve his sentences concurrently.

The Van Breda legal team plan to lodge an application for leave to appeal which will be heard on the 27 June 2018.

They say that the battle line between good and evil lies thin in the heart of every man. Was this tragedy then just another drug induced mistake or is Henri Van Breda an evil murderer who sought to break up his family forever?

 

Will and Testament Documents on a Table

Many people don’t want to think about drafting their Last Will and Testament.

None of us want to think about becoming ill or aged.  The reality is that anyone at any age must have a Will.  As the saying goes “it’s always better to be safe than sorry”.

When having a Will drafted by an Attorney, the individual must understand what the document contains, as well as the consequences in terms thereof.

This article will therefore discuss the answers to the most frequently asked questions that we, as attorneys, receive and the importance of such questions.

What is a Will?

A Will is a document which will direct the management of your assets and liabilities upon your death.

When Should I Think About Drafting a Will?

You should always have a Will and it should be updated on any changes in your life, e.g. getting married, having a child, buying or selling a property etc.

What Happens if I Don’t Have a Will?

If someone dies without a Will it means that their assets will devolve unto their next of kin and other family members via the intestate stipulations in the Administration of Deceased Estates Act.

This process is usually more time consuming as it will take longer to administer the Estate. It can also place a disadvantage on certain people who may not inherit from the estate as you might have wanted or intended them to.

What Makes a Will Legally Valid?

A Will MUST be in writing and dated and signed by the person whose Will it is (the “testator/testatrix”).

It must be witnessed.

A Will may, in certain circumstances, be “signed” by way of thumb print and/or seal if one is physically unable to sign, but the legal provisions in respect thereof are very strict.

Contact our offices for direction if you wish to discuss the drafting of your Last Will and Testament.

When Can a Will be Challenged?

A Will can be challenged for many reasons e.g.

If there is a question as to whether the person had drafted their Will under duress;

Where it is questionable whether such person was competent or unable to comprehend what the contents were when drafting the Will;

Where such person did not meet the proper requirements to make such Will legal and valid according to the law.

Where are Wills Kept?

As attorneys, we draft the Will on behalf of and to the satisfaction of the client.  The client then signs the Will and the document is witnessed.  The document is then placed into Securities, where it is protected against theft, fire etc.

What is a Testamentary Trust?

A Testamentary Trust is a trust created within a Will whereby another person is nominated to inherit a property in the future.

Most people hold money or assets in trust for their children to access when they reach the age of 25 years old, as they will be more competent to utilize it at that age.

What is a Living Will?

A Living Will is a separate document which is usually attached to a Will.  This document states that in the event of someone being hospitalized and medical intervention will not save the person’s life, then the hospital is to cease any procedures which will only prolong the person’s life and/or suffering. This usually occurs when a person is terminally ill or permanently in an unconscious state.

How Many Executors and/or Trustees Should I Have?

By law there should be at least one executor and if there is a Testamentary Trust created, there should be at least two trustees. Usually executors and trustees are the same people.

What Happens to My Minor Children When I Die?

Both parents are natural guardians of children, so whether you are married to your child’s other parent or not is irrespective. If one parent dies, the child/children will be in the care of the other parent. However it is important that if both parents die for example simultaneously, that another person, such as a family member, or friend, is nominated to care for the child/children.

In conclusion, this article clarifies the most important aspects to a Will as questioned by clients. One of the most important things that we like to instill to our clients is that you should create a Will as soon as possible, as it is not dependent on age. One must be competent and of sober mind when creating their Will and most importantly the client MUST understand their Will when signing it so as to avoid future complications.

For more questions or to create a will with us please don’t hesitate to contact SCHWENN INC today at 031 563 1874 or email us on Charmaine@schwenninc.co.za. We look forward to helping you safeguard your legacy!

 

Person Pocketing a Single Bitcoin

Bitcoin is a new virtual currency that was created in 2009.  Transactions are made with no middle men – meaning, no banks! Much of the hype is about getting rich by trading it.

Some people just buy bitcoins as an investment, hoping that they’ll go up in value.

Bitcoins are essentially a digital payment network stored in a “digital wallet,” which exists either in the cloud or on a user’s computer. The wallet is a kind of virtual bank account that allows users to send or receive bitcoins, pay for goods or save their money.

Bitcoins are protected by powerful cryptography, a secure way to store your wealth but it ultimately creates the risk that when you die, your heirs will not have access thereto.

A “private key” allows the owner access to the digital wallet’s contents.   Unless your heirs have your private key, they will be unable to gain access thereto when you die.

How To Ensure Your Bitcoins Are Transferred to your Heirs

To ensure that your Bitcoins can be transferred to your heirs upon your death, it is advisable to entrust a copy of your private key with your financial advisor or attorney who can ensure that your heirs receive it.

Although the Bitcoins do not form part of the physical assets of your Estate, it would be advisable to bequeath your Bitcoins in your Last Will and Testament and to identify the person who has a copy of your private key.

This will ensure that there is no uncertainty whom you wanted to gain access to your wallet after your death.

We at Schwenn Incorporated Attorneys and Conveyancers have an Estates Department that would be willing to discuss this issue with you.  Give us a call to set up a meeting to draw up your Last Will and Testament and to discuss your Bitcoin portfolio in the process.

Schwenn Inc

The Shareholders Agreement and Memorandum of Incorporation (MOI) are two similar documents that often cause confusion. While there are a few subtle differences between the two, the ideal way forward is to have both in place to protect yourself fully.

Before the new Companies Act in South Africa, a Shareholders Agreement was considered the holy grail when entering into any new business relationship. In more recent years, however, after the terms of the MOI were changed so that they override all other terms, many companies assume that they can skip the former in replacement of the latter. Your agreement documentation for shareholders will not replace or alter your MOI. Instead, this document should complement your MOI in a way that covers all of your bases.

What exactly should you be considering when finalising your Shareholders Agreement, and why is it so important to have both this document and an MOI in place? Let’s take a look.

Shareholders Agreement, MOI or Both?

Ideally, you want to create and sign a Shareholders Agreement that is relevant to South Africa. Shareholders of every company need to sign an agreement at the start of the relationship that outlines factors such as community of property and anything else that may potentially result in dispute at any given time. Originally, before the Companies Act, shareholders would sign an agreement stating clauses such as:

“If, at any time, it becomes apparent that the terms of the memorandum or articles of association conflict with or fail to record the terms of this Agreement, among shareholders, the terms of this Agreement will prevail; and any shareholder may require the memorandum and articles of association to be amended to conform with the terms of this Agreement; and shareholders will vote in favour of any special resolution of the Company necessary in order to amend the memorandum and articles of association of the Company.”

With the new act, this type of clause is no longer feasible. That means that agreement templates crafted before 1 May 2011 are no longer valid. As the agreement can no longer prevail over the new Companies Act or the MOI, this document may not seem worthwhile at all. In fact, this type of document still has its use. While it may not be quite as important, it will still help to cover any issues that are not handled by the Companies Act or MOI. Issues such as shareholding, alternative dispute resolution and pre-emptive rights can all be protected under your agreement for shareholders.

Section 15(7) of the Companies Act states that shareholders may still enter into agreements, as long as the agreement falls within the provisions of both the MOI and the Act. Officially, the purpose of the MOI is as follows:

“Set out rights, duties and responsibilities of shareholders, directors and others within and in relation to a company, and other matters as contemplated in section 15; and by which: the company was incorporated in terms of this Act, as contemplated in section 13; or a pre-existing company was structured and governed before the later of: the effective date; or the date it was converted to a company in terms of Schedule 2;”

If there is ever a conflict between the MOI and your agreement, the MOI will always take precedence. If there is any clause that conflicts with the guidelines of the MOI, only that clause can be voided. This will have to be voided by a court application with the assistance of your lawyer. The aim of this is to create a culture of transparency. It prevents companies from adding additional criteria in the agreement that may not have been in the public domain. This, in turn, protects those buying shares in the company. It also prevents abuse.

We know that corporate agreements such can be challenging and sometimes confusing. To help you find the ideal way through the confusion, we can assist with MOI as well as various other documents. Get in touch to find out more about arranging Shareholders Agreements in Durban and surrounds, and let us simplify the process as best we can.

If you want to protect yourself and your spouse after marriage, you will need an antenuptial contract (ANC). Also known as a prenuptial agreement, this type of contract is often misunderstood by those who think it is about protecting assets in a divorce. In reality, this could easily be one of the most important contracts that you will sign as a married couple. Essentially, the ANC ensures that you and your partner are financially protected even after death.

The antenuptial contract allows married couples to personalise their own matrimonial property regime. Any provisions can be included, provided the provisions are legal, moral and not against the nature of marriage. This document is typically finalised before marriage. There are two types of ANC – one that excludes community of property, profit, loss and the accrual system, and one that excluded community of profit and loss while including the accrual system.

A good lawyer who has experience in executing ANC cases is essential. Understanding the process of seeking an antenuptial contract in 2018 is also important.

Why Do You Need an Antenuptial Contract in 2018?

Things you should know about obtaining a potential antenuptial contract include the following:

  1. Although many people assume that this contract is a way of preparing for divorce, it is not at all about assuming the worst. In reality, this contract is a way to protect both your assets as well as your partner’s assets in the event that one of you is no longer around.

 

  1. Without this type of contract, you will be automatically married in community of property. While this may seem like it gives you the power, it puts you at far greater risk than you may realise.

 

  1. With an antenuptial contract, you will essentially be married out of community of property, with or without accrual. What this means is that you will get to keep your separate assets. You can then deal with your assets according to your own choices, without the risk of losing everything in the event of divorce or death of your spouse or by creditors claims. Although you are entitled only to what you have brought into the marriage, you and your spouse are able to share what you have developed as a couple.

 

  1. Antenuptial agreements are an essential way to ensure that you and your husband or wife are seen as separate entities. If your spouse has any debt, this will protect you from creditors, without the risk of taking on debt. If you have an accrual system, you will only be able to claim your share of a joint estate after a divorce or the death of a spouse.

 

  1. To set up your antenuptial agreement, you will need a highly skilled lawyer in Durban and surrounds or a correspondent in your area who is able to draw up a contract that protects you and your spouse. Your lawyer will need to be a registered notary who is neutral and able to mediate. As a legally binding contract, you will not be able to ignore it, unless you are divorced or your spouse passes away. If you were married in community of property, you can, however, convert to an antenuptial agreement after getting married, even if it costs a fair amount.

Contact Schwenn Incorporated today to find out more about seeking help with your antenuptial contract in KZN.