At the heart of the appeal in Limpopo Provincial Council of the South African Legal Practice Council v Chueu Incorporated Attorneys and Others (459/22) [2023] ZASCA 112 lies the question of liability of all directors of a law Firm for financial misconduct committed by one director.

Chueu Incorporated Attorneys (“the Firm”) specialised in personal injury matters.A number of complaints to the Limpopo Legal Practice Council (“LPC”) from members of the public represented by the Firm in litigation against the Road Accident Fund (“RAF”) concerned failure to account to clients for monies claimed and received from the RAF; and failure to respond to communications or deal properly with clients’ instructions; and a complaint to the Gauteng LPC from the RAF about a double payment of some R29 million erroneously made by the RAF to the Firm and not repaid, but instead appropriated by the Firm (the “financial improprieties”).

The LPC brought an urgent application for the suspension of all directors of the Firm under Sections 43 and 44 of the Legal Practice Act (LPA), on grounds of the financial improprieties.

The other directors of the Firm argued that they should not be held accountable for disciplinary measures for the financial improprieties of another director. The common thread in the defences of the other directors was that each of them held only a minor shareholding and had no involvement in the financial operations of the Firm. They claimed that they received no financial statements, were not consulted on financial matters by the director concerned; and did not share in the distribution of profits from the improprieties; and that they were effectively kept in the dark.

The judgment of the court was unequivocal: Each director bears a fiduciary duty towards the company, and the defence of ignorance regarding financial matters, when faced with allegations of misappropriation of clients’ money, does not absolve directors from their responsibilities. Relying on Hewetson v Law Society of the Free State 2020 (5) SA 86 (SCA)  the Court emphasised that “legal practitioners cannot escape liability by contending that they had no responsibility for the keeping of the books of account or the control and administration of the trust account”. The court went further to quote Hepple v Law Society of the Northern Provinces [2014] 3 All SA 408 (SCA) that “for an attorney to explain trust deficits on the grounds thathe or she had no involvement in the financial affairs of the Firm ‘is no defence at all’”.

The Court concluded that by failing to be involved in the oversight of financial matters the directors were derelict in their duties. The facts presented in this case were thus sufficient to warrant suspension of all the directors of the Firm from practising as attorneys for a period of six months, pending the finalisation of investigation into their conduct. The principle confirmed in this case is clear: In disciplinary proceedings all the directors of a law firm can be held responsible for the financial misconduct of one of them. The court’s judgment emphasized that each director bears a fiduciary duty towards the company, and a defence of ignorance regarding financial matters does not absolve directors from their responsibilities.

The legal position prior to the Constitutional Court decisions in EB (born S) vs ER (born B) and Others; KG v Minister of Home Affairs and Others ZACC 32 [2023] were where parties had elected to conclude an antenuptial contract, upon dissolution of the marriage by divorce, a court may, where it deemed it just and equitable to do so, may make an equitable redistribution order that the assets of one spouse may be transferred to the other, in terms of Section 7(3).

Section 7(3) reads as follows:

A court granting a decree of divorce in respect of a marriage out of community of property –

• entered into before the commencement of the Matrimonial Property Act 1984, in terms of an antenuptial contract by which community of property, community of profit and loss and accrual sharing in any form are excluded;

• entered into before the commencement of the Marriage and Matrimonial Property Law Amendment Act, 1988, in terms of section 22(6) of the Black Administration Act, 1927 (Act 38 of 1927), as it existed immediately prior to its repeal by the said Marriage and Matrimonial Property Law Amendment Act, 1988; or;

• entered into in terms of any law applicable in a former homeland, without entering into an antenuptial contract or agreement in terms of such law,

may subject to the provisions of subsections (4), (5) and (6), on application by one of the parties to that marriage, in the absence of any agreement between them regarding the division of their assets, order that such assets, or such part of the assets, of the other party as the court may deem just, be transferred to the first-mentioned party.

The purpose of Section 7(3) was to introduce a remedy for marriages which were entered into prior to 1 November 1984, when spouses could only elect to be married in community of property or out of community of property, without the accrual regime (“old ANC”). The section was aimed at compensating for the fact that spouses in such old ANC marriages, prior to November 1984, did not have the option to incorporate the accrual regime as a default regime when electing to conclude an antenuptial contract (“new ANC”).

Section 7(3) generally provides the Court hearing a divorce action with a discretion, when dissolving a marriage out of community of property concluded on or before 1 November 1984, to transfer assets or a part of assets from a spouse who is in a financially stronger position to the spouse who is considered to be financially weaker.

In EB (born S) vs ER (born B) and Others the Court considered whether Section 7(3) of the Divorce Act should also be applicable to marriages dissolved by the death of one of the spouses.

The Constitutional Court had to decide whether it is justifiable that spouses whose marriages terminate by divorce are treated differently from those whose marriages terminate by death, because the former class has the benefit of the redistribution remedy whereas the latter class does not. The Court held that exclusion of the redistribution remedy in the case of the dissolution of an “old ANC” marriage by death is a differentiation that does not serve a legitimate government purpose and amounts to unfair discrimination in terms of Section 9 of the Constitution.

In KG v Minister of Home Affairs and Others ZACC 32 [2023] the High Court held that there was unfair discrimination under Section 9(3) of the Constitution insofar as spouses in “old ANC” marriages, unlike spouses in “new ANC” marriages, had the option to adopt or reject the accrual regime, yet only spouses in “old ANC” marriages were given the redistribution remedy. Economically disadvantaged spouses in new “ANC marriages” were deprived of a benefit given to economically disadvantaged spouses in “old ANC” marriages, based solely on the date of marriage.

The High Court held that the constitutional validity of Section 7(3) should not be considered solely, as at the time when spouses conclude their antenuptial contract, there may have been other legitimate reasons for spouses to exclude the accrual system, despite wealth disparities. Inequality may manifest itself during the course of the marriage, when “a distortion is caused by the fact that one spouse contributes directly or indirectly to the other’s maintenance or the increase of the other’s estate without any quid pro quo,” usually in the case of woman.

In this situation Section 7(3) discriminates against spouses indirectly on the grounds of gender, because women who conclude a “new ANC” marriage may experience the same hardship as women who concluded “old ANC” marriages. Women in “new ANC” marriages can face significant hardship and impairment of their human dignity upon divorce, if their contributions to their spouse’s estate are not recognized. The court held that the differentiation in treatment is not justified by the argument of choice, because many prospective spouses may not have a genuinely free choice when signing antenuptial contracts.

The Constitutional Court agreed and declared the differentiation between old and new ANC marriages to be an unjustifiable indirect discrimination based on gender and the provisions making the application of section 7(3) dependent on the date of the marriage to be unconstitutional. The Constitutional Court therefore upheld the declaration of constitutional invalidity by the High Court, and suspended its order for 24 months to allow Parliament to rectify the legal issues identified by the court.

During this interim period of 24 months the Matrimonial Property Act, in conjunction with Section 7(3), will provide protection for spouses in old and new ANC marriages, regardless of whether the marriage ends through divorce or death. This extension of the redistribution remedy means that all spouses, irrespective of when they were married, can benefit from these legal protections.

This judgment can be seen as a necessary step towards achieving equality and fairness in marriage dissolution, in keeping with South Africa’s international law obligations and the principles enshrined in the Bill of Rights. The decision highlights the persistent inequalities within the institution of marriage and represents a positive move by the courts to protect the most vulnerable individuals in society. As the High Court stated in EB (born S) vs ER (born B) and Others, it is clear that full gender equality has not yet been achieved in South Africa. The measures implemented by the Constitutional Court through this judgment aim to ensure that no party is left at a disadvantage at the dissolution of a marriage, especially in cases where power imbalances may have led to unfairness in the marriage contract. As a result, the redistribution discretion is now available to all marriages out of community of property without accrual, regardless of the date on which the parties were married. Even if the parties signed an antenuptial contract to the contrary, they will still be entitled to request equitable division of assets accrued over the duration of their marriage.

A will is a legal document that determines how your assets will devolve upon your death. It ensures that your estate is distributed according to your last wishes and, most important, that your loved ones and dependants are taken care of in the event of your death.

Contrary to popular belief, a will is not just for the wealthy. Any person over the age of 16 years may draw up a will, regardless of how small their estate may be.

A will allows you to:

i) control who inherits your assets and how much of your estate they receive;

(ii) make provision for the well-being of your children and loved ones; and

(iii) nominate a trusted guardian for your minor children when you are no longer there.

The task of executing a valid will is best left to a professional, like an attorney specialising in estate planning and administration, to avoid the likelihood of mistakes and delays in the estate administration process.  Though you can prepare a will yourself, all wills signed after 1 January 1954 must comply with certain formalities, as prescribed by section 2(1) of the Wills Act 7 of 1953.

These are:

i) the person making the will must be older than 16 years of age;

ii) the will must be in writing;

iii) every page of the will must be signed by the testator in the presence of two competent witnesses. Should a will not comply with the formalities as prescribed by the Act, the document will be invalid and the Master of the High Court may reject it.

If this occurs, the testator will be regarded as having died intestate. Though not a requirement in terms of the Act, it is recommended that a will be dated to avoid the risk of uncertainty where a prior will also remain in existence.

Should you die without a validly executed will, your estate will devolve according to the Intestate Succession Act 81 of 1987, with the result that your assets may end up in the hands of relatives who were not intended to be beneficiaries from your estate. Dying without a will may complicate the administration of your estate and may create uncertainties and conflict among family members. Your heirs will end up with the emotional burden of spending additional time and effort to settle your affairs after your death.

After your will has been drawn up and executed, it is not advisable to keep the document in your drawer or under your couch (as was reported recently about the late Aretha Franklin’s will). A will should be kept in a secure and easily accessible location. We recommend that wills be secured in a fire- and waterproof safe with an attorney or other trusted advisor.

Please contact Alicia Cupido-Woodman on email address aliciac@cluvermarkotter.law or telephonically at 021-808 5655 about Wills Week and to assist with all estate planning enquiries.

Several different statutes may apply where eviction of an occupier from a residence is in issue, as discussed by the Supreme Court of Appeal in the case of Ndlovu v Ngcobo, Bekker and Another v Jika (1) (240/2001, 136/2002) [2002] ZASCA 87; [2002] 4 All SA 384 (SCA) (30 August 2002).

The statute with the most significant impact on “rural dwellers” is the Extension of Security of Tenure Act, 62 of 1997 (“ESTA”).  The scope of application of ESTA depends on various factors, such as the geographical status of the land, the personal attributes of the occupier (i.e., the occupier’s income and the nature of the use of the property), and the legal nature of the rights to occupation (for instance express or tacit consent or for example a right deriving from contract).

The question discussed here is the geographical status of land as a determining factor for the application of ESTA.

Section 2 of ESTA deals with “Application and implementation of Act”. Sub-sections 2(1) and (2) determine whether property falls within the scope of the Act:

(1)  Subject to the provisions of section 4, this Act shall apply to all land other than land in a township established, approved, proclaimed or otherwise recognised as such in terms of any law, or encircled by such a township or townships, but including –

A)Any land within such a township which has been designated for agricultural purposes in terms of any law; and

B)Any land within such a township which has been established, approved, proclaimed or otherwise recognised after 4 February 1997, in respect only of a person who was an occupier immediately prior to such establishment, approval, proclamation or recognition.

 (2)  Land in issue in any civil proceedings terms of this Act shall be presumed to fall within the scope of the ESTA Act unless the contrary is proved.

In many cases the question whether land falls within a township, as described in ESTA, could be a simple matter where the land clearly forms part of a township. But difficult issues can arise, as illustrated by the recent case of

Stellenbosch University v Retolla and Others (LCC63/2021) [2022] ZALCC 27 (16 August 2022) (“Retolla”), which involved a town founded in 1697 (Stellenbosch) and property on its urban edge. The applicant approached the Land Claims Court for a declarator order on the status of the property.

The problem was that ESTA does not contain a definition of what constitutes a “township”, other than to state that land will constitute a township if it is established, approved, proclaimed or otherwise recognised as such in terms of any law. The Act does not provide clarity on the “law” that could form the basis of the recognition of a township.

A further complication is that the procedure for the establishment of townships within the Republic differs from province to province. In most provinces townships are established by way of proclamation. In the Western Cape, townships are not established by way of proclamation, but by the process of subdivision of land. It follows that a township will not be established, approved or proclaimed in the Western Cape. In the Western Cape, the question to determine the application of ESTA will be whether a property falls within a township “otherwise recognised as such in terms of any law”.

In Retolla, the Land Claims Court issued a declarator order to the effect that the property in question was situated in the township of Stellenbosch, which, on the uncontested evidence before the court, was recognised in law as a township, at the latest in 1927, when the Townships Ordinance 13 of 1927 came into force. The property did therefore form part of a township recognised as such before and after 4 February 1997. The property in question was therefore excluded from the provisions of ESTA and the property owner could proceed with eviction proceedings in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998.

Should you have any questions on eviction and the application of ESTA, please contact us at 021 808 5600.

Rule 43 proceedings in the High Court and Rule 58 proceedings in the Regional Court (collectively referred to as “the Rule”) were designed to assist litigants in divorce proceedings to approach a court to grant an interim order, pending the finalisation of the divorce proceedings.  The Rule allows the litigant to seek relief in respect of the following:

1. Interim maintenance for the applicant and/or the parties minor child/children;
2. Interim care and contact in respect of the minor child/children; and
3. A contribution towards the legal costs of a pending divorce.

A trend started to emerge where litigants have taken advantage of the Rule and sought inflated maintenance claims and unsubstantiated contributions towards their legal costs.  This could place the applicants in a more favourable position, resulting in them not wanting to settle the divorce while receiving interim maintenance for an indefinite period (until the divorce is finalised) for a greater amount than what they would have received upon the finalisation of the divorce.

In the case of MD v MD (43212/2021), the court considered the importance of the Rule in that it seeks to place both parties on an equal footing.  The court referred to the earlier judgment in AF v MF 2019 (6) SA 422 (WCC), where the court said that under the Constitution the “equality of arms” is an inherent element of our due process in both civil and criminal law, because both parties to litigation must be treated in a manner that ensures that both are procedurally in an equal position.

This Rule emanates from the historical wealth disparity between men and women, where men were generally the financial providers and in control of the household finances.  Consequently, women were more likely to be prejudiced in divorce proceedings and would only receive financial assistance when the divorce proceedings were finalised.  The Rule has been a necessary legal tool to provide a remedy in cases where either of the parties may be financially prejudiced during divorce proceedings and may settle at terms unfavourable to them because they could not afford to litigate.

In the case of B R v D R (14189/2022) [2023] ZAWCHC 59, Kusevitsky J relied on the judgment in Nilsson v Nilsson [1984] 1 All SA 520 (C) (“Nilsson”) and found that Rule 43 proceedings are not meant to provide a meal ticket for interim maintenance pending the parties’ divorce.

In the unreported case, S K v J L K (3198/23) [2023] ZAWCHC 62, Thulare J also found that Rule 43 was not meant to provide an interim meal ticket.  He held that the Rule was enacted to ensure justice in that the parties are treated fairly vis-à-vis one another.  He added that the Rule was also not intended to result in an order which will for all intents and purposes be a certificate of exemption for legal practitioners to cover their fees in advance.  The totality of what is covered by the Rule has its basis in the duty of support that the spouses owe each other and that parents owe to their children (as stated in Carry v Carry 1999 (3) SA 615 (C) at 619H-I).

Thulare, J found in S K v J L K, that the applicant had exaggerated her expenses and understated the support that the respondent provided to her and the children.  The applicant’s conduct was found to be dishonourable, and this had no place in judicial proceedings.

In B R v D R, Kusevitsky observed that the original purpose of the Rule was to assist claimants, usually women, who found themselves in a weaker financial position than their spouses in divorce proceedings.  However, in recent times, the Rule has been abused by applicants who make unrealistic and inflated claims, which has led to unintended consequences, such as delaying the finalisation of the main divorce action.  The Court emphasized that the basic tenets of the Rule have sometimes been forgotten and, in some instances, abused.

In another unreported decision in the Gauteng Local Division High Court, GB v DS (16/08/2018) under case number 16158/16, Keightley, J said the following:

“… the Rule is designed to provide interim cover to the spouse who has been financially dependent on the other spouse, because of their particular marital circumstances, and who thus has a genuine need for such support to continue until the matter is finally dealt with on divorce. This being the case, a claim for interim maintenance would normally be accompanied by a claim for maintenance on divorce. In the absence of such a claim, the implication is that the critical requirement of financial dependency on the other spouse, which underpins the application for interim maintenance, is missing….”

When deciding on an interim order in divorce proceedings, the Court in Taute v Taute 1974 (2) SA 675 (E), stated that there is no general principle upon which an application under Rule 43 can or must be based.  Each case must depend on its own particular facts. It was also reiterated that a claimant for maintenance pendente lite was not entitled, as of right, and without more, to maintenance sufficient to keep him or her in the same lifestyle as that enjoyed during the marriage.

It is important to note that once an order has been granted in terms of the Rule the order is not appealable under section 16(3) of the Superior Courts Act 10 of 2013, because the effect of the order is not final.  However, a party can in the event of a subsequent material change in the circumstances of either party or a child, or should the contribution towards costs prove to be inadequate, approach the Court under Rule 43(6) or Rule 58(6) to amend the existing order.

Background

The history of the case in the High Court and Supreme Court of Appeal is the following.

The Pretoria High Court heard three applications, all involving essentially the same legal question: can a water use entitlement be transferred in terms of the National Water Act 36 of 1998 (“Water Act”) to another person and if so, whether a fee may be charged for the transfer. A further question was whether one can trade in water use entitlements.

For the period from 1998, when the Water Act was enacted, until 2018, the Water Department consistently allowed transactions with water use entitlements. This would usually take the form of private agreements that were entered into under section 25(2) of the Water Act. The agreements involved the surrender of water use entitlements by one party to facilitate the other party’s application for a license, in terms of section 41 of the Water Act, for that water use entitlement. The contract prices for these agreements could be large sums of money. In the three applications, the parties had entered into such private contracts and the Director General of the Department of Water and Sanitation had refused the transfer of the water use entitlements. The reasons for the refusal were that the Water Act does not permit trading with water use entitlements in terms of section 2 of the Water Act and that section 25(2) makes no provision for the transfer of water use entitlements.

The High Court dismissed all three applications. On appeal, the Supreme Court of Appeal split 4:1: One judge agreed with the decision of the High Court, but the majority disagreed, holding that sections 25(1) and 25(2) of the Water Act permit the temporary or permanent transfer of water use entitlements from a holder to another person. The cases then went on appeal to the Constitutional Court.

In a unanimous judgment written by Madlanga J, the Court held that both its constitutional and extended jurisdiction applied – given the import of the questions raised. Leave to appeal was granted. The Court identified the following three main questions in this matter: (a) Does section 25(1) of the Water Act permit the use of water by a person other than the holder of a water use entitlement? (b) Is the licence application envisaged in section 25(2) a licence application by the holder of a water use entitlement? (c) Does the Water Act prohibit the charging of a fee in transactions involving water use entitlements?

Submissions of applicants’ for leave to appeal in the Constitutional Court

Section 25(1) provides as follows:

“A water management institution may, at the request of a person authorised to use water for irrigation under the Act, allow that person on a temporary basis and on such conditions as the water management institution may determine, to use some or all of that water for a different purpose, or to allow the use of some or all of that water on another property in the same vicinity for the same or similar purpose.”

The applicants for leave to appeal contended that if an ordinary meaning is given to the section above, the transfer of water use entitlements to another person is not included.  According to the applicants, the second part of the above section must be interpreted to mean that the temporary use of water is for the same or similar purpose on another property in the vicinity by the holder, not by another person.  A similar argument was made regarding section 25(2) where the applicants submitted that that section also does not expressly mention another person.  The applicants further submit that “wealthy farmers, who are largely white, have created an enclave within which a scarce national resource is traded, thus perpetuating the imbalances of the past”, a situation that infringes the right to equality.  Such a situation would further be at odds with section 2 of the Water Act which provides that the purpose of the Water Act is to redress the results of past racial and gender discrimination.  Lasty, the applicants submit that the Water Act’s predecessor, the 1956 Water Act, made specific provision for the trading in water use.  The applicants argued that because no similar provision is made in the Water Act, trading in water use should not be allowed.

Judgment of the Constitutional Court

Madlanga J starts by rejecting the applicants’ interpretation of section 25(1) for lack of grammatical sense.  Regarding section 25(2), Madlanga J held that just as the section does not expressly mention another person, nor does it expressly exclude another person.  The Court noted that it would not be possible to “trade” in water use entitlements in the conventional sense: in terms of section 25(2), the holder can, at most, surrender their right to facilitate a particular application by another person.  However, trading (i.e., entering into a private, parallel transaction) is not prohibited by any provision in the Water Act.

From a procedural point of view, sections 26(1)(l) and 29(2) refer to “transactions” and “compensation”, implying that the trading of water use entitlements is recognised as lawful, based on the language of section 29(2) which makes provision for the payment of compensation in exchange for water use as a condition of a license.  Therefore, in the absence of a specific prohibition against the trade of water use entitlements, it is clear that money may change hands.

In essence the Court held that there is no provision in the Water Act that prohibits the charging of a fee for water use entitlements under the second part of section 25(1) or for a surrender of a water use entitlement in terms of section 25(2) in order to facilitate a section 41 licence application by another person.  The appeal was dismissed with costs.

A person diagnosed with Alzheimer’s, for example, may at the early stages of the disease have the requisite mental capacity at some times, but not at other times. In the early stages of this disease, it is quite common for someone to lack capacity one day and to have it the next. On principle Alzheimer-sufferers can validly execute a will at times when they can understand its nature and effect, but if the testator’s mental capacity is in contention, a prior Alzheimer-diagnosis may impact on the evaluation of evidence indicating lack of mental capacity. The person alleging cognitive impairment must prove on a balance of probability that the testator lacked capacity at the time of executing the will.

The principles of testamentary capacity are based on the common-law requirements namely (i) that the testator must have reached the age of 16 years, and (ii) the testator must be of sound mind at the time of execution i.e., the testator must have the necessary mental capacity to understand the nature and effect of the act they are about to complete.

To establish whether a testator had the capacity to understand the act of executing a will, the test set out in Banks v Goodfellow (1870 LR 5 QB 549) , is whether the testator: (i) understood the nature and effect of a will; (ii) had knowledge of the nature and extent of property owned and bequeathed in terms of the will; (iii) are aware of the persons for whom they would usually be expected to provide; and (iv) was not suffering from a disorder of the mind or insane delusion that would result in an undesirable disposition. In the event of any doubt that the testator meets any one of these requirements, a legal advisor should advise against execution of the purported will.

The deciding moment for establishing the competence of a testator is the time when the will was made and not when instructions were given to draft a will. Therefore, if the testator who suffers from Alzheimer’s disease, for example, is temporarily of sound mind, the document would be valid. However, in this situation it is advisable to take extra care to record the evidence of capacity at the time the will is executed, to avoid any uncertainty afterwards.

Medical evidence such as psychiatrist reports, witness statements and depositions can be used in support of establishing testamentary incapacity. Should the testator already have been declared of unsound mind prior to making the will, and if the validity of the will is then challenged, the beneficiary alleging that the testator was of sound mind, would have to prove that the testator did, in fact, have a clear or lucid interval while making the will.

The amendments place new obligations on trustees and compel them to:

a)   keep an updated record of all the “beneficial owners”* under a trust. Trustees must complete and submit the register containing the required information to the Master of the High Court, and update it as necessary;

b)   disclose their position as trustee to any “accountable institution”** with which the trust engages, and disclose that the relevant transaction or business relationship relates to trust property;

c)   ensure that details of all distributions, cash flow and loans by the trust to the beneficial owners thereof are reported to SARS annually;

d)   report the demographic information of the trustees and beneficial owners to SARS annually;

e)   keep records of all accountable institutions with which the trust engages during a year;

f)    disclose the records so obtained and kept to official bodies upon request.

Failure to comply with the required record keeping and reporting duties is a criminal offence punishable by up to five years imprisonment or payment of a fine of R10 million by the trustees.

The Master’s Portal to which the registers of beneficial ownership should be uploaded is operational.  Trustees should ensure that they submit the required details as soon as possible.

Should you be a trustee of a trust, Cluver Markotter can assist you with the submission of the records to the Master of the High Court.

Please contact Alicia Cupido-Woodman for more information and assistance at email address  aliciac@cluvermarkotter.law or telephone number 021 808 5655.

* “beneficial owner”, in respect of the provisions of a trust instrument, means—

(a)   a natural person who directly or indirectly ultimately owns the relevant trust property;

(b)   a natural person who exercises effective control of the administration of the trust arrangements that are established pursuant to a trust instrument;

(c)   (i) each founder of the trust; or
(ii) if a founder of the trust is a legal person, a person acting on behalf of a partnership or in pursuance of the provisions of a trust instrument, the natural person who directly or indirectly ultimately owns or exercises effective control of that legal person or partnership or the relevant trust property or trust arrangements pursuant to that trust instrument;

(d)   (i) each trustee of the trust; or
(ii) if a trustee of the trust is a legal person or a person acting on behalf of a partnership, the natural person who directly or indirectly ultimately owns or exercises effective control of that legal person or partnership; and

(e)   (i) each beneficiary referred to by name in the trust instrument or other founding instrument in terms of which the trust is created; or
(ii) if a beneficiary referred to by name in the trust instrument is a legal person, a partnership or a person acting on behalf of a partnership or a person acting in pursuance of the provisions of a trust instrument, the natural person who directly or indirectly ultimately owns or exercises effective control of that legal person or partnership or the relevant trust property or trust arrangements pursuant to that trust instrument”.

** “accountable institution” has the meaning defined in section 1 (1) of and Schedule 1 to the Financial Intelligence Centre Act, 2001 (Act No. 38 of 2001).

Estate planning is a crucial step in ensuring that your property and assets are preserved and distributed according to your wishes after your death. With the right advice, you can minimise estate taxes and ensure that your loved ones are legally protected.

Our attorneys can offer you:

Specialised Knowledge: Attorneys specialising in estate planning has extensive knowledge of the tax implications and legal requirements associated with both estate planning and administration. The legal expertise of an attorney can help ensure that your estate plan is comprehensive and effective, and potentially reduce your liability for estate duty, tax on capital gains, etc.

Customised Solutions: Each individual’s situation is unique, and estate plans should be tailored to meet their specific needs and goals. Attorneys can provide customised solutions that reflect your personal circumstances and wishes, whereas other advisors may only be able to provide general advice.

Professional Standards: Attorneys are held to strict professional standards of integrity, accountability, and diligence in carrying out of all their responsibilities which means they must act in your best interests and maintain strict confidentiality at all times. Other advisors may not be subject to the same professional standards, which can increase the risk of errors or breaches of confidentiality.

Personal attention and continued support: An attorney is better equipped to provide you with personal attention, ensuring that you receive comprehensive, customised, and legally sound estate planning solutions that protect your interests and help ensure that your wishes are executed.  Attorneys are also able to assist your loved ones with the administration of your estate and the implementation of your estate plan, should the worst happen.

Get in touch with our Estate Planning & Trust Specialists

We have a well-established and extensive estate and trust department with a multi-faceted approach to estate planning. To meet the specific needs of our clients we are committed to offering cutting-edge solutions that keep up with constantly changing laws and regulations.

• That the company’s absence and failure to oppose the proceedings was not due to wilful default (i.e., that its failure to appear was not on purpose);
• Good cause for the company’s absence (this includes the prospects of success of the company defence); and,
• Justifiable reasons for its absence must be substantiated by proof, if it is possible to do so.

6. The above list is not exhaustive and may differ from case to case.
7. In the case of Northern Training Trust v Maake & Others 2005 JOL 16369 (LC), the Labour Court held that:

• “The enquiry in an application for the rescission of arbitration award is consequently bipartite. The first leg is one which is concerned with whether or not the notice of set down was sent (for instance by fax or registered post). Should evidence show that the notice was sent, a probability is then created that the notice sent was received. The second leg to the enquiry is one which concerns itself with the reasons proffered by the applicant who failed to attend arbitration proceedings. Such applicant needs to prove that he or she was not wilful in defaulting, that he or she has reasonable prospects of being successful with his or her case, should the award be set aside. However, the applicant needs not necessary deal fully with the merits of the case.”

8. The application for rescission must be made on notice and by a representative of the company and must be substantiated by a founding affidavit setting out the facts. The application must be properly served on the former employee and filed at the CCMA with proof of such service on the former employee.
9. In terms of Rule 31 of the CCMA Rules, the former employee will have 5 days to oppose the application (by notice of opposition and answering affidavit). Should the former employee oppose the application, the company will have 3 days to file a replying affidavit.
10. The CCMA will then decide either to deal with the matter on the papers or to set the matter down for oral argument.
11. The CCMA may, after considering the papers and/or oral argument, either decide to grant the application and rescind the award or ruling or it may dismiss the application for rescission.
12. Should the CCMA dismiss the application, the company’s only recourse would be to review the ruling in the Labour Court of South Africa. It is therefore important to ensure that the process of applying for rescission is dealt with by an experienced professional.
13. Our firm has a specialist team of labour lawyers who can assist your company with legal advice and representation in the CCMA, Bargaining Council, Labour Court, Labour Appeal Court and Constitutional Court.