Large and small building works are commonplace in most neighbourhoods. Do you know when you are required to have plans drawn up and obtain municipal approval for your alterations at home?

 

You will require plans to be drawn up, quite obviously for new homes. You will also need plans drawn up for additions to your existing building structure or alterations to your existing building structure. This includes your exterior wall.

 

What may not be so obvious is that you will need building plans drawn up for the following internal alterations:

  1. Walls removed, moved or added;
  2. Walls raised or lowered;
  3. Doors or windows size or location changed;
  4. Use of a room is changed, such as converting a garage into a living space;
  5. Carport converted into a garage;
  6. Existing patio enclosed;
  7. Mezzanine floor added;
  8. Any material changes.

 

If you undertake minor building works, you still need to contact the building inspectorate at your local municipality who will inspect and provide the necessary exemption. Sometimes you may need to submit a drawing. You should not require building plans to be drawn for the following minor building works:

  1. Braais without a chimney;
  2. Garden sheds less than 3m
  3. Gate for cars within your property, unless partly on the pavement or municipal land;
  4. Replacing window or door frames provided that they are not load bearing and the opening is not enlarged;
  5. Minor repairs such as replacing roof tiles;
  6. New appliances or fitting such as bath or toilets provided there is no new plumbing or drainage.

 

It is always recommended that you employ a qualified professional to assist you with any alterations to your property and they should be able to advise you if plans are required. As the owner of the property, it is completely your responsibility to ensure that everything is done properly. Please remember that there are potential criminal implications if you go ahead with building on your property without the correct approval in place. You should always contact your local Building Inspectorate to ensure that the correct procedures have been followed before you start any building works.

For any information please do not hesitate to contact Liza Bagley on liza@schwenninc.co.za.

 

Written by Liza Bagley.

We are living through an unprecedented time in South Africa and the world.

An anomaly that now arises is what happens to divorced/separated/unmarried parents and their contact arrangements with their children over the national shut down.

Parents and children have certain rights. You will need to bear in mind, however, that certain rights are restricted in this state of disaster management. There will be limited, if any, access to courts over this time.

Parents should have an arrangement in place in terms of an agreement or a court order. Children moving between their respective parents now becomes potentially illegal.

The line will be drawn at considering their “home” to be the home of the primary caregiver. If the parents have joint primary care, it is advisable that the parents reach an agreement urgently regarding care over this time period, without the need for children to move between homes, except in the case of a medical emergency.

Please remember that maintenance is still payable between the parties, regardless of where the children reside during the shut down period. Any variations of maintenance needs to be by agreement.

For more information contact Liza on Liza@schwenninc.co.za.

 

 

SINGLE PARENTS WILL PAY LOWER SCHOOL FEES

In a recent SCA (Supreme Court of Appeal) Court case – Head of Department: Western Cape Education Department & another v S (Women’s Legal Centre as Amicus Curiae) (1209/2016) [2017] ZASCA 187 (13 December 2017) it was found that a single parent could and should be given a school exemption.

Section 40 of the South African Schools Act No. 84 of 1996 states that:
40 (1) “A parent is liable to pay the school fees determined in terms of section 39 unless or to the extent that he or she has been exempted from payment in terms of this Act.”
40 (2) goes on to say a “parent may appeal to the Head of Department against a decision of a governing
body regarding the exemption of such parent from payment of school fees.”

Single parents will no longer need their ex-spouses to qualify for a school fees exemption, this followed on from a case concerning a Western Cape mother who applied for a school fees exemption. The school concerned wanted both her and her estranged ex-husband to fill in a form, because they both constituted a “family unit” even though she had custody of the daughter.

The mother of the child found that this process discriminatory, humiliating and unreasonable, the SCA Judgement, therefore made it clear that in circumstances where one parent has refused or failed to provide their income details, public schools shall grant a conditional fee exemption to the parent who has custody over the child, having regard to that parent’s income.

This conditional fee exemption shall be similar to an exemption that a parent would receive if there were the only parent of the learner concerned.

The granting of such a conditional exemption will not limit the public school from taking legal steps to enforce payment by the other parent for the balance of the school fees. This ensures that non-custodial parents are held responsible where required.

We hope that all our readers enjoy the festive season and have enjoyed our blogs. Should you have any legal issues, kindly note our offices are closed from the 24th of December 2019 until the 6th of January 2020. If you need to contact our offices in between that period, contact Charmaine Schwenn on 083 789 7638 or email charmaine@schwenninc.co.za.

The Importance of having a living will

In light of wills week this month (16 to 20 September 2019) we thought we would highlight the importance of drafting a living will when drafting your last will and testament.

What is a living will?

It is a document in which you give instructions to your medical doctor and your family that in the event of a serious injury or disease, that renders you in a coma or in a vegetative state that you do not wish to be kept alive through artificial means.

Reasons Why You Need a Living Will:

  1. A living will speaks for you when you cannot speak for yourself. For example, if you are in a coma and there is no reasonable chance of recovery, a living will can state whether or not you wish to be kept alive through artificial life support.
  2. Having a living will in place spares your loved ones from making the decision for you. It will be up to you if you want to remain on life support. This will also eliminate family members from arguing about the decision, with regards to religious views or any other factors they might have over the decision.
  3. The living will also let you have a say in what medical procedures and organ donations that you may want. This is especially important for healthy individuals, as their organs can be harvested and used to give someone else another chance at life.
  4. The financial burden on your estate can be very draining, being on life-support, especially when there is no reasonable chance of recovery.  This is incredibly expensive. This might seem heartless putting a price on one’s life, but medical bills could be devastating for many families.

What a living will cannot state.

You cannot include instructions for euthanasia or doctor-assisted suicide in South Africa. You are entitled to request for specific treatments to be withheld or withdrawn, but you cannot ask a doctor to end your life.

How to draw up a living will?

Drawing up a living will isn’t time-consuming, and while you can do it yourself, it’s always best to have an attorney assist you with the process. Your living will should be accessible, so it’s advisable to inform your family and your medical practitioners of your living will’s location and give them copies.

As with many things in life, people change their minds and we always recommend that you review both your Last Will and Testament and your living will on an annual basis or if your circumstances have changed.or any queries contact, Charmaine Schwenn on 031 – 003 0630 or email – charmaine@schwenninc.co.za so that we can assist you in drafting both your will and living will.

#Willsweek2019 #Justschwennit #Yougotschwenned

1. It is important to think about the initial costs, do you have enough earnings to qualify for a bond on a property in the first place? Are you able to pay all the necessary transfer costs such as transfer duty, attorney/conveyancer fess?

2. Then consider ownership – firstly be how you intend to register the property, are you doing so in your name or in the name of a trust or company? Consult an attorney and accountant on this point.

3. What will the monthly costs be to you from date of registration? Think of costs such as levies, rates and taxes, and your bond instalment. Also factor in insurance and maintenance costs. You should have a contingency account for amounts not covered by your insurance for maintenance and upkeep of the property.

4. A big risk is periods when you have no tenants and are not earning an income, or if you have a tenant that is not paying rental, are you prepared to pay costs while looking for a suitable tenant or ejecting a non-paying tenant?

5. How much rent can you charge? Rental needs to be based on a) The type of property b) The location e.g. is it close to shopping centres? How many people will be living on the property? You will also need to plan ahead for the annual increase of rental which usually ranges between a 5-10% increase per year. This amount needs to be carefully considered and calculated so that it strikes an important balance between profit for you as a land owner as well as fairness and affordability for tenants.

6. You will need a strong rental agreement that protects your rights as a land owner, this should include breach clauses which will give you remedies in the event that the tenant breaches his responsibilities, this should also include the fact that they agree to pay legal costs in the event that a matter ends up in the legal process.

7. Tenant vetting- what you look for in a tenant : • Reliability – this would be especially useful when it comes to payments being made every month, • Conduct and demeanour – this would be one of the top priorities, not only does the tenant’s conduct depict how they will act toward you but it is important to see how they handle stressful and or difficult conversations especially when things go wrong and there is a breakdown in communication. • Responsibility – as a property owner, you want a tenant who will look after your property the best that they can as if it was their own, who will maintain it and keep it neat and tidy • Reference checks are essential, especially from previous landlords.

When seeking a tenant the most important thing is for you as an owner to feel comfortable!

If you have any queries and or advice on buying a rental property and renting out your property don’t hesitate to contact us today on 031 003 0630 or email us on Charmaine@schwenninc.co.za.

 

What is racism in the workplace?

 

In the news currently is the matter of a teacher that was suspended for posting pictures of children in her class, apparently segregated by race.

Another relevant case has just been decided by our Constitutional Court, where a man was dismissed for referring to a co-employee as a “swart man” – “Black man”.

How do you as an employer or employee regulate this in the workplace? Many refer to co-workers by race – is this racist and derogatory?  It is a real challenge and in this political climate a recipe for disaster.

Think of Adam Catzavelos who posted a “personal” video on the beach and what happened to him and his business. He was fired from a family business and the business has, to our knowledge, not recovered.  The ramifications are huge, especially with social media when things can go viral.

The case of Adam Catzavelos is very clear. His conduct was despicable.  But what of the teacher who posted the pictures – was her suspension valid?  The employee who was dismissed, was his dismissed fairly?

The Constitutional Court held that the CONTEXT of the words or action are what is important in determining whether conduct is racist or defamatory or derogatory.   Was the context intended to be or apparently racist?  Did it belittle the “victim” thereof?  Our history of segregation and apartheid is of great relevance in this.  Ordinary words or actions can be determined to be racist, based on the context and the heightened tensions around racism in South Africa.

The employee who referred to his co-employee as a “swart man” (black man) did so in anger – he allegedly burst into a meeting demanding that the black man’s vehicle be removed from his parking immediately or there would be consequences.

For employers, if such an incident occurs in your workplace, you need to carefully consider our current society tensions and test the context of the incident.

For employees and the general public, be aware of Government efforts to curb racism and hate speech and think carefully. Do not act in anger and measure your words.

If you are an employer – contact us to assist you to put the necessary policies and procedures in place for these situations. We can also assist in sensitising your staff to the actions which could be considered discriminatory or racist.

 

Contact : Charmaine Schwenn

Charmaine@schwenninc.co.za

031-003 0630 / 083 789 7638

WHAT IS FICA and WHY WE NEED IT?

 

FICA stands for The Financial Intelligence Centre Act, which came into effect on 1 July 2003.

 

FICA was introduced to fight financial crime, such as money laundering, tax evasion, and terrorist financing activities. FICA brings South Africa in line with similar legislation in other countries.

 

FICA is essentially a means to ensure that an institution is required to ”get to know the client”. Financial institutions, like banks or other organizations such as attorneys firms or estate agencies do this by keeping proper records of their clients, requesting particulars and keeping a proper record of where the funds are coming from and where they are going.

 

It is therefore a legal requirement for financial institutions to FICA their clients in order to prevent financial crimes. The Act, places an obligation on the banks/attorneys firms to FICA their clients and it is a criminal offence for them not to do so.

 

The failure to FICA clients can lead to a prision sentence (ranging from 5 to 15 years) and or a fine (ranging from R 1 000 000 to R 10 000 000) depending on the offence, hence the

 

Some offences that are punishable under the Act, include, but not limited to;

 

  • Failure to identify persons involved in a contractual obligation
  • Destroying or tampering with records
  • Failure to advice Centre of a suspicious client/person
  • Failure to report cash transactions
  • Failure to report suspicious or unusual transactionsWe have therefore drafted a list of requirements that should be given or requested to your friendly attorney firm (that would be us) or other institution.For individual:
  1. Copy of client’s ID book;
  2. Utility bill – no older than 3 months and showing clearly the clients’ physical address;
  3. SARS document where clients’ SARS registration number is clearly visible.

 

For Companies and CC’s

 

  1. the registered address of the close corporation or company;
  2. the name under which the close corporation or company conducts business;
  3. the address from which the close corporation or company operates, or if it operates from multiple addresses –
    • the address of the office seeking to establish a business relationship; and
    • the address of its head office;
    • the full names, date of birth and identity number or nationality (as may be applicable), concerning –
    • the manager of the company; and
    • each natural person who purports to be authorised to establish a business relationship or to enter into a transaction with the accountable institution on behalf of the company; and
    • the full names, date of birth, identity or registration number, nationality, address and / or legal form, as may be applicable, concerning the natural or legal person, partnership or trust holding 25%  or more of the voting rights in the company.

 

Documents required for companies

  1. identity document; or if a person cannot produce an identity document, another document bearing a photograph of the person and their names, date of birth and identity number;
  2. a document issued by the South African Revenue Services bearing the person’s name and the relevant number;
  3. a utility bill (no older than 3 months) or copy thereof;
  4. Certificate of Incorporation (form CM1) and Notice of Registered Office and Postal Address (form CM22) – Companies.

Documents required for Closed Corporations

  1. identity document; or if a person cannot produce an identity document, another document bearing a photograph of the person and their names, date of birth and identity number;
  2. a document issued by the South African Revenue Services bearing the person’s name and the relevant number;
  3. a utility bill (no older than 3 months) or copy thereof;
  4. Founding Statement and Certificate of Incorporation (form CK1) and Amended Founding Statement (form CK2) if applicable – Close Corporations.

For Partnerships:

  1. the name of the partnership,
  2. the names, date of birth, identity or registration number, nationality, addresses and / or legal form, as may be applicable, concerning, every partner, including every member of a partnership the person who exercises executive control over the partnership;
  3. each natural person who purports to be authorised to establish a business relationship or to enter into a transaction with the accountable institution on behalf of the partnership.

Documents required for Partnerships

  1. identity document for all partners; or if a person cannot produce an identity document, another document bearing a photograph of the person and their names, date of birth and identity number;
  2. a document issued by the South African Revenue Services bearing the person’s name and the relevant number;
  3. a utility bill (no older than 3 months) or copy thereof;
  4. Partnership agreement.

For all your contract/property needs, contact our offices on 031 003 0630 or charmaine@schwenninc.co.za

Divorce in dictionary

 

When is the right time to get a divorce?

 

As attorneys we often get asked by our clients when the right time is to get a divorce? It’s a difficult question to answer.  We strongly recommend that you get the support and advice to make this decision from a trusted personal advisor, spiritual advisor, family member or friend.

We can help with the “legal” side of the decision – explaining the process to you, explaining the proprietary consequences of the divorce, as well as issues surrounding children and other financial consequences.

What we can say for sure, is that the process is always a “difficult” one, which inevitably gets worse before it gets better. For this reason, you need to ensure that you are resolved, and certain that you wish to take this decision.  We will do all we can to ensure the smooth running of your matter and also that we assist with the constructive resolution of the matter.  We try not “break things” more than they are already broken.   This is not to say that we shy away from a fight, if there is one to be had – on the contrary, we will advise you which fights are worth the fight and we will make sure that your interests are protected in this respect.  However, we believe that our jobs as attorneys are to help you keep the end goal in mind – and to help you get there as quickly and painlessly as possible.

If this is how you wish your matter to be handled and you are sure that you want a divorce, give us a call.

 

Charmaine Schwenn

charmaine@schwenninc.co.za

031-003 0630

GOOD NEWS FOR SINGLE PARENTS:

It was common practice that both parents of children had to submit their income and expenditure to the schools which their children attend.

This was most predominantly used when parents were applying for any exemptions for their children’s school fees.

This was the practice even if the parents were divorced or separated. This posed a lot of stress on the primary care giver of the child when paying for all the child/children’s educational needs in spite of their poor financial disposition.

The stress caused on the parents and children involved has and still is an epidemic that is widely felt especially by single headed households. It has especially become evident that these unneccesary and aviodable stresses filter down to these children.

It has been agreed that something needed to be done in order to give children their inherent right to education as enshrined in the Constitution and The Childrens Act, irrespective of their upbringing and the circumstances.

New law on school fee exemptions:

A new court ruling has ajudicated on this point in an effort to relieve the stress on the single headed households that are looking for the best education for their children.

As aforementioned, it was the status quo for both parents to submit their income and expenditure so that the exemption could be appropriately calculated, which was often at times very embarrassing for all parties envolved as parents would have to show that they were “too poor” to pay the required school fee prices.

The school governing bodies will now be given new and improved criteria in which to follow when they are deciding on which parents should be given such exemptions. This is to give regard to the childs right to good education instead of punishing the child due to the parents inability to pay their fees.

The law previously stated that both parents of a child, whether married or not were jointly and severally liable for their childs school fees. The Supreme Court of Appeal however has ruled that single parents applying for exemptions will be assessed on based on their own individual financial means.

How can one apply and what is the process of obtaining an exemption?:

The parent(s) would be required to contact the school and fill out the necessary paper work. This would include having  to agree to sumbit to a credit check which will confirm  employment details.

The court ruled that parents will not need to disclose their entire financial position to the schools when applying. This saves parents from feelingembarassed when making the application to the school. .

The School’s Governing Body and the principal of the school will then review the application and then decide whether or not to grant an exemption.

 

It is of importance to note that although South Africa is making great strides to protect the rights of children, it also sympathizes with parents taking into account the current prevailing economic times, the scarcity of jobs and unemployment as well as the ever increasing burden of single parent households.

For any advice and or assistance on school fee affairs, maintenance and other children related issues feel free to contact us on 031 003 0630 or charmaine@schwenninc.co.za.

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Family Handprint

 

 

How do I calculate maintenance for my child?

 

Every parent is responsible for the maintenance needs of their children. These needs are however, the REASONABLE needs of the child.

One calculates the child’s share to the common household as one part per child and two parts per adult.

To put it in simple terms we use the following formula:

 

 

Parents gross income                                                                              Childs Needs

______________________                           X                                __________________

Total gross income of both parents                                                                   1

 

= the parents contribution toward maintenance.

 

One parent can apply to the Maintenance Court for a change in the order once there is a change in income of either of the parents.

This process is free and highly recommended, especially after a costly divorce where one parent wants to vary the court order made due to change of circumstance.

The Maintenance Court is a faster and cheaper option as opposed to the costly and lengthy wait for a High Court order variation. It also has jurisdiction in the following areas:

 

  1. Setting aside an existing maintenance order;
  2. Make a new maintenance order;
  3. Decreasing a current order;
  4. Amending a current order, or
  5. Changing an existing order.

It is to be noted that Grandparents and other family members can, as a substitute, also be ordered to pay maintenance for the child if one of the parents cannot.

The reasonable needs of the child are calculated by looking at:

  1. The child’s previous lifestyle;
  2. The child’s parents income;
  3. The child’s parents financial abilities to pay maintenance; and
  4. The child’s health and specific educational needs.

It therefore goes without saying that every child’s needs have to be decided upon on a case by case basis.

If you need any assistance or legal advice contact us at Charmaine@schwenninc.co.za or call us on 0310030630.