It might happen that you have heard people talking about being insolvent and that their assets are sequestrated. This article will take you through the meaning of Insolvency for a person (NOT a company – that is Liquidation and will be covered in a later blog).  We will also discuss who a debtor is for the purposes of insolvency, the purpose of a sequestration order and who may be sequestrated.

Meaning of: “Insolvency”

A person is insolvent when his liabilities exceed his/her assets. Inability to pay debt is, at most, merely evidence of insolvency.

A person who has insufficient assets to discharge his/her liabilities, although satisfying the test of insolvency, is not treated as insolvent for legal purposes unless his/her estate has been sequestrated by an order of the court.

A sequestration order is a formal declaration by the High Court that a he/she is insolvent.  The order is granted either when he/she voluntarily surrenders their estate or where one or more of his/her creditors apply for compulsory sequestration.  The person in this circumstances is referred to as a debtor (someone who owes money to creditor(s)).

Who can be regarded as a “debtor”?

The term “debtor” is technically wider than just a single person.  It embraces the following:

  • A natural person
  • A partnership
  • A deceased person
  • A person incapable of managing his own affairs
  • An entity or association of persons that is not a juristic person, such as a trust
  • Parties married in Community of Property

The purpose of a sequestration order

The order of sequestration is made by the High Court to secure the orderly and equitable distribution of a debtor’s assets where they are insufficient to meet the claims of all his creditors. A sequestration order is issued by court to execute property belonging to a debtor in order to for the creditors to be paid which in some cases one or a few creditors are being paid, and the rest receiving little or nothing at all. However, the law takes its cause to ascertain that whatever assets the debtor has are liquidated and distributed among all his creditors in accordance with a predetermined fair order of preference.

Once an order of sequestration is granted, a coming together of creditors is established, and the interests of the creditors as a group enjoy preference over the interests of individual creditors.

A creditor’s right recover his claim in full by judicial proceedings is replaced with the right, on proving a claim against the insolvent estate, to share with all other proved creditors in the proceeds of the estate assets.

Apart from what is permitted by the Act, nothing may be done which would diminish the assets of the estate or prejudice the rights of creditors.

The law of insolvency exist primarily for the benefit of the creditors, thus a court will not sequestrate a debtor’s estate unless it’s known that the sequestration will be to the benefit of the creditors. Thus a sequestration order would not be granted if there is only one small creditor or if the debtor’s assets are not sufficient to cover the costs of sequestration, and so the creditors of the debtor would then have to seek individual relief against the debtor by taking judgment against him for nonpayment of debts.  The concept of sequestration being to the benefit of creditors means that each creditor must benefit – receive some dividend from the sequestration order being made.

What may be sequestrated?

Estates that fall with the meaning of the word “estate” with regard to insolvency:

  • An estate that includes assets and liabilities
  • An estate that consists of liabilities only
  • The joint estate of spouses married in community of property
  • The separate estates of spouses married out of community of property
  • The new estate of a debtor whose estate has been sequestrated.

Written by Portia Dlamini

Where both parents have guardianship over their children and one parent wants to move overseas  the consent of the other parent is needed.

If however, consent is unreasonably withheld, the parent wanting to relocate can approach either the Children’s Court or the High Court for an order granting the parent to move with the child.

It is very important to note that a decision by a court is not made without a proper investigation. The court must be satisfied that the parent’s reasons for relocating are bona fide (meaning in good faith) and it must be within the best interests of that child.

The court will prefer a well laid out plan for things before making any decisions such as the child’s well-being, education, care and among other things the child’s housing.

The court will also take the following into account before granting the relocation:

  1. Whether the financial advantages will be better for the child especially with regards to their living conditions;
  2. The safety of the child would be better;
  3. The educational opportunities for the child will be better;
  4. If there is a close family relative in that country to allow the child a healthy family life and therefore a healthy support structure; and
  5. Whether the parent who defends the relocation has been consistent within the child’s life.

Some of the factors that could go against the child relocating would be:

  1. That there is a strong relationship between the parent who doesn’t have primary residence and the child in question;
  2. How involved that non-custodial parent is in the daily life of the child; and
  3. Whether the financial ability would allow for the other parent and child to still maintain a healthy relationship.

It is also of great importance to note and fully understand that the High Court and Children’s Court are the upper guardians of children and can make the necessary decision for the child regarding what is in his/her best interest. For any legal advice regarding the relocation of a child or children’s rights in generally contact our offices today on 031 003 0630 or email us on Charmaine@schwenninc.co.za.

#SCHWENNINC #YOUGOTSCHWENNED #FAMILYLAW

Should a spouse be entitled to payment of a monthly amount of maintenance for themselves when they get divorced?

The simple answer is “no”.  Our courts try to ensure what is known as a “clean break principle” on divorce, ensuring that as much as possible that each party goes their separate ways after a divorce. 

This started with courts refusing spousal maintenance orders in some of the following circumstances:

  1. Where the parties are young;
  2. Where the party is qualified in a field;
  3. Where the parties have no children;
  4. Where they have their own job;
  5. Where the party is in good health; and
  6. When the marriage was a short one.

In the past it was common that women would stay at home raising children and looking after the family home, however, this has become more rare.  In these kind of situations, the court favours the application of “rehabilitative maintenance.”  This upholds the clean break principle, giving the spouse maintenance for a fixed period of time until they are financially self-sufficient and upskilled to enable them to be gainfully employed.

In the cases where the courts grant maintenance orders, the court will have to take the following into account:

  1. The current or expected wealth of the party;
  2. The earning capacity of the party;
  3. The financial need or obligation;
  4. The ages of the parties;
  5. The duration of the marriage; and
  6. The standard of living before the divorce.

At Schwenn Incorporated we look at trying to get settlements during a divorce that are the most fair and favourable for our clients, as cost effectively as possible. If you have any questions on spousal maintenance or divorces in general do not hesitate to contact us today on 031 003 0630/ info@schwenninc.co.za.

Written by Jessica Schwenn and Charmaine Schwenn.

#schwenninc #newblog #spousalmaintenance #yougotschwenned #subscribe

These terms are often mentioned in laws, contracts and news articles.  What do they actual mean?

Status refers to your rights and responsibilities in civil and criminal law and whether you can sue or be sued.

This is further limited by your domicile (where you live and consider to be your home country), your age and your mental capacity.

Age and capacity go hand in hand, as described below :

  1. 0-7 Years old- Children between these ages have no capacity to act and need a parent or guardian to act on their behalf;
  2. 7-18 Years old- These ages have limited capacity to act. At this stage a minor (any person under the age of 18 years) can enter into contracts but need their parent or guardian to consent before it is legally binding; and
  3. 18 years and above- You are now considered a major and have unlimited capacity to act, unless you are mentally incapacitated.  In this case, the court would appoint a Curator to administer your affairs on your behalf in your best interests.

Here are some random and interesting other facts about the law and age:

  1. 0-10 Years – Children between these ages have no criminal liability;
  2. 10 Years old – 18 Years old- these minors need to consent to an adoption to be legal;
  3. 14 years and older- This person can be a witness to a will;
  4. 12 Years and above- a minor can make medical decisions for themselves without their parents/guardians consent if they understand the risks involved ;
  5. 12-15 Years old- A minor of this age can get married with consent of their parent/guardian and the Minister of Home Affairs, when they are married they still obtain the status of majority even after divorce; and
  6. 16 Years and above- A minor can now execute a will for themselves without assistance or consent of a parent or guardian.

The law therefore indicates that to enter into any legal contract or litigation in general one must know of their legal status in order to peruse same legally.

For any questions on your legal status contact our offices today on 031 003 0630 or email us at Charmaine@schwenninc.co.za.

#newblog #schwenninc #legalcapacityandstatus #attorneysatlaw #litigation #contracts

Adoption can be described as the actual process where one or more people make an application to the  Children’s Court to become a parent of a child that can be either biologically related to the parent or not.

Who is adoptable according to the laws of South Africa?:

  1. Anyone under the age of 18 years old;
  2. Where one is an orphan and their caregiver is willing to adopt him/ her;
  3. Where a child is abandoned and has no contact with the parent for a period of at least 3 months; and
  4. Where a child has been abused and or neglected by his/her parent.

Who can apply to adopt a child?:

  1. The person must be at least 18 years or over;
  2. Spouses or life partners who share a permanent home;
  3. A widower or divorced person;
  4. A stepparent married to the parent of the child; and
  5. A father of a child born out of wedlock.

Who needs to give consent to allow a child to be adopted?:

  1. Each parent or legal guardian if they can be found;
  2. The child must consent where he/she is 10 years or older ( this consent must be reduced to writing and verified by the Children’s Court).

Can consent be withdrawn?:

Yes, a parent who gave the consent to an adoption has 60 days after consent was initially given to withdraw the consent.

Therefore the Children’s Court cannot grant an adoption until the 60 day period has expired.

When is it possible for consent not to be required?:

  1. When someone is mentally ill/ unstable;
  2. When a child is abandoned and the parent cannot be traced;
  3. Where a child has been abused by their parent/ guardian;
  4. Where a parent has failed to respond to a proposed adoption notice within 30 dyas of receipt;
  5. A father who has never acknowledged he was the father of the child;
  6. A child conceived from an incestuous relationship; and
  7. When a child was conceived by rape.

What is the actual procedure to adopt a child?:

  1. A notice must be served by a sheriff to the parents/guardians to request consent;
  2. An interview with a social worker regarding whether or not a child can be adopted eg. If its in the childs best interest;
  3. An application must be made to the Children’s Court with the recommendation of the social worker;
  4. A letter by the provincial head of social development recommending the adoption;
  5. If granted, the order together with the child’s birth certificate must be taken to the Home Affairs in which the child is domiciled and the change of surname will be recorded.  

For any family law matters don’t hesitate to contact our offices today on 031 003 0630 or email us at Charmaine@schwenninc.co.za.

Written by Jessica Schwenn.


This is a question that each director of either a small, medium or large firm must take into account when considering competition in the market. Negligence has left a lot of firms in a position that leads to them breaking down, but for a firm to successfully compete in a market one must take the following into account.

 ESTABLISHING DOMINANCE

A definition of a dominant firm appears in section 7 of the Competition Act. The inquiry into whether an entity is a dominant firm includes an identification of the relevant market in which the firm is involved, it’s market share within that market and whether it possesses the relevant market under section 7 depends upon the market share enjoyed by the firm alleged to be dominant.

WHEN IS A FIRM DOMINANT?

Section 7 of the Competition Act states that a firm is dominant in a market if:

  • It has at least 45% of that market
  • It has at least 35%but less than 45% of that market
  • If it has lee than 35% of that market but it has market power

The statutory test for dominance requires an assessment of market share and market power. A firm with a market share of 45% or more cannot escape being conspired dominant per se, however, for those firms with a market share of less than 45%, market share is only one aspect that needs to be considered.

If the firm has a market share of less than 45% but equal to or more than 35%, the onus is on the firm to show that it does not have market power.

If a firm cannot produce evidence to show that it does not enjoy market power, then the firm is dominant.

Likewise, a firm with less than 35% of a market share may be dominant if it has market power. However, in this case, the onus is the complainant in the case or where relevant, the Competition Commission, to show that the firm has market power.

TEST FOR DOMINANCE

A firm can only be determined once the market in which the firm competes is correctly defined. Accordingly, the definition of the relevant market is an important initial step in establishing whether a firm qualifies as dominant. It is quite possible for a big conglomerate firm that participates in various diverse industries not to be dominant in any relevant market.

So, the main question to ask is when does a firm have market power? The Competition Act defines market power as the ability to:

  • Control prices
  • Exclude competition
  • Behave to an appreciable extent independently of competitors, customers, and suppliers.

Market power provides the firm with the ability to set prices above the competitive price level, and in so doing earn a greater profit than it would have under competitive conditions in the market.  

WHAT DOES THE DOMINANCE PROVISION PROHIBIT?

In terms of section 8 of the Act, it is prohibited for a firm to:

1. Charge an excessive price to the detriment of consumers;

2. Refuse to give access to competitors access to an essential facility when it is economically feasible to do so;

3.Engage in an exclusionary act, other than that listed below if the anti-competitive effect outweighs its technological efficiency or whether pro-competitive gain;

4. Engage in any of the following exclusionary acts, unless the firm concerned can show technological efficiency or other pro-competitive gains which outweigh the anticompetitive effect of its act;

  • Requiring or inducing a supplier or customer not to deal with a competitor. This transpired in the case of Comair Ltd v SAA 2008 where SAA induced airline agents to not deal with Nationwide Airlines and Comair who were complainants in selling the tickets but only sell SAA tickets to customers in return for an incentive promised by SAA.
  • Refusing to supply scarce goods to a competitor when supplying those would be economically feasible.
  • Selling goods or services on conditions that the buyer purchases separate goods or services unrelated to the object of a contract or forcing a buyer to accept a condition unrelated to the object of a contract or forcing a buyer to accept a condition unrelated to the object of the contact.
  • Selling good and services below their marginal or average variable cost.
  • Buying up a scarce supply of intermediate goods or resources required by a competitor.

Before one engages in the market it is advisable to look out for such conduct, apply the Act where applicable.

We can help with this!  We have extensive experience with the Competition Commission, having appeared before the commission on behalf of clients and dealt with Competition matters, up to and including, challenging fines, opposing applications brought by the Competition Commission, representing clients before the Competition Tribunal, among others.

Contact: Charmaine Schwenn

                Charmaine@schwenninc.co.za

031 -0030360

WRITTEN BY: PORTIA SAMKELISIWE DLAMINI

13/05/2019

This article aims to discuss the necessity of open communication between yourself and your attorney especially when seeking and setting up a payment holiday plan.

Many people will at some point in their lives find themselves being involved in legal disputes. It goes without saying that litigating on a matter can take quite a while, especially if the matter is opposed.

In saying that, an attorney can become costly. The more time an attorney spends on your matter, the higher your legal bill.

Your financial situation can be either a short term or a long term problem. If it is a short term problem the restructuring of payments owing is much easier to do as opposed to a long term problem. It is however, important for you to maintain an open line of communication between yourself and your attorney. An attorney will only then institute legal action against you if you have not honored your commitments and/or if you haven’t advised them fully about your financial circumstances.

Your attorney may ask that you sign a contract for a certain period that limits your liability to pay them, this is known as a payment holiday. This is not to say that you are fully extinguished from ever paying your attorney again, but it is a contract that will stipulate the terms and conditions that will determine:

  1. When the amounts are due;
  2. What amounts are outstanding;
  3. If there is any discount available e.g. the use of a collections tariff as opposed to an attorney’s full hourly rate; and
  4. What interest, if any, will the debtor be liable for?

It is pertinent to note that a payment holiday plan will be based on the merits of a case, usually only used for a long term client and after a full financial assessment has been undertaken.

Be careful not to get a payment holiday plan confused with Pro Bono work. Most pro-bono work is work referred to attorneys by Pro Bono.Org in order to provide free legal assistance to those who cannot afford to pay for an attorney.  http://www.probono.org.za/.

In conclusion, to set up a payment holiday plan with your attorney you must apply your mind to the following:

  1. Be an existing client;
  2. You must notify your attorney immediately of any financial change;
  3. Share your financial history with your attorney;
  4. Negotiate a contract and decide which terms and conditions suit both parties;
  5. Honor your payments ( when the “holiday” is over); and
  6. Always keep the lines of communication with your attorney open.

For any legal assistance or advice kindly contact us on 031 003 0630 or email us on Charmaine@schwenninc.co.za.

Written by Jessica Schwenn.

#schwenninc #yougotschwenned #blogs #paymentholiday

  Residential properties : Securing your security deposit Section 5 of the Rental Housing Act (RHA) allows a landlord to take a deposit from a tenant before the tenant moves into the property. This amount must be stipulated in the lease agreement and is generally an amount that is equal to 1 month rental. The […]

Residential properties : Securing your security deposit

Section 5 of the Rental Housing Act (RHA) allows a landlord to take a deposit from a tenant before the tenant moves into the property. This amount must be stipulated in the lease agreement and is generally an amount that is equal to 1 month rental.

The RHA, requires that the landlord deposits the money into an interest bearing account, with a financial institution. A tenant has the right to receive a statement of interest earned. The tenant is therefore entitled to receive their deposit and all interest earned during the lease period at completion of the lease.  The tenant will have to provide FICA information for the landlord to invest the deposit amount.

As further protection, a tenant should ensure the landlord or managing agent is registered with the Estate Agency Affairs Board.

A landlord is entitled to deduct any expenses incurred from repairing any damage which may have occurred during the term of the lease from the deposit and interest.  This is normally provided for in the written lease agreement.

The tenant has the right to see all repair receipts to ensure the expenses are for genuine repairs that have been undertaken by the landlord. This does NOT include costs for general maintenance of the property which is for the landlord’s expense.

The Importance of a walkthrough inspection

A tenant should always do a pre lease inspection, noting any defects or faults prior to moving in and this should be reduced to writing and sent to the landlord or his agent as soon as possible, or within the time stipulated in the lease. A good idea would be to take photos as this would substantiate any claims of faults and will supplement any “snag lists’.

Some landlords often agree to fix faults at a later stage and this should be viewed with some suspicion as often the faults are not fixed and the landlords then blame the tenants for any damage. A tenant is not responsible for wear and tear and should not be forced to repaint the walls (unless the tenant has caused excessive wear and tear).

Exit inspection

A tenant must always insist on having an exit inspection and this should be done when the lease comes to an end. The tenant should ensure that the original snag list is presented and any additional evidence (photographic or otherwise) as well as any additional faults that have occurred during the lease period. A tenant who is intent on getting their full deposit and interest should view this inspection with a critical eye (by ensuring the property is cleaned, the walls washed and any holes patched up).

Rental Housing Act, Amendments

This Act sets out the following criteria for both the landlord and tenant:

  • Setting out the rights and obligations of the parties in a coherent manner;
  • Requiring the lease to be in writing;
  • The contents of a lease must include the following;
    • Names and addresses of all the parties to the agreement;
    • A description of the property;
    • The amount of the rental;
    • Reasonable escalation;
    • Frequency of payment;
    • The amount of the deposit;
    • The lease period and the notice period.

Failure to repay the security deposit and interest, for no legitimate reason, by the landlord is a criminal offence in terms of Section S 16 (aB) (RHA) and is punishable with a penalty or imprisonment not exceeding two years or both.

To ensure your lease agreement is complaint with all the necessary rights and obligations of both the landlord and tenant, contact us on 031 – 003 0630 or charmaine@schwenninc.co.za. #rentals #durbanlawyer #schwennlegacy #leaseagreements #newblogpost

Article written by – Barry Todd

 

CREDITORS, DON’T DISREGARD BUSINESS RESCUE SO SOON AS A WAY TO RETRIEVE YOUR MONIES.

It can be said that there has been an increase in business rescue processes in South Africa.

“Business rescue, as defined by the Companies Act 2008, aims to facilitate the rehabilitation of a company that is financially distressed by providing for the temporary supervision of the company and management of its affairs, business, and property by a business rescue practitioner”.
https://m.fin24.com/Entrepreneurs/Resources/Business-rescue-explained-20150119.

One of the main purposes of business rescue is to ensure that creditors be paid out what is owed to them – albeit less than the full amount of their claim.

Although many get disheartened by the decrease in the payback of the capital amount, the proceedings are almost identical but less extreme to that of liquidation proceedings.

“Liquidation is the process of bringing a business to an end and distributing its assets to claimants. It is an event that usually occurs when a company is insolvent meaning it cannot pay its obligations when they come due”.
https://www.investopedia.com/terms/l/liquidation.asp.

From a glance of the Companies Act, it suggests that although a business rescue plan may discharge a portion of the debt owed to concurrent creditors, it would be the same amount that one would get during the liquidation proceedings in any event. Therefore either way although you may retrieve less than the capital amount they theoretically do the same/similar jobs at the end of the day.

Section (1)(b)(iii) of the Companies Act states that a business rescue plan contemplates an outcome that would indeed be a better result for shareholders than it would have been during immediate liquidation.

However, just like many areas of law in South Africa, there has not been a real consensus by the courts whether the above can be stated as true.

In Oakdene Square Properties v Farm Bothasfontein, the Supreme Court of Appeal decided that it was not intended for the Act to promote an informal type of proceedings as a way of avoiding the consequences of liquidation.

If you are a creditor or a business owner looking for advice on business rescue and/or your options on the best returns possible for your money contact our offices on 031 003 0630 or email Charmaine@schwenninc.co.za.

 

Written by: Jessica Schwenn.