ARTICLES | Le Roux Vivier Attorneys

More progress in the attempt to eradicate gender-based violence. Great job by the Constitutional Court.

https://www.timeslive.co.za/news/south-africa/2019-12-11-constitutional-court-rules-doctrine-of-common-purpose-also-applies-to-rape/?fbclid=IwAR2SPFOC-_-rxDuUJyJjarl3V5MNLlj77n-6xafk58tXYKvxGcCMEKn7674

Small Claims Court

Do you have a claim against an individual or a business for an amount that does not exceed R20,000.00?

If yes, then consider approaching the Small Claims Court to recover the amount as opposed to litigating in the Magistrate’s Court. The reason for this is because the Small Claims Court was specifically established for an individual to obtain quick, inexpensive relief by following a simple court procedure.

It is important to bear in mind that only a natural person may institute proceedings in the Small Claims Court, however, juristic persons (companies, partnerships etc), excluding the State, may be sued.

Once proceedings have been instituted, the parties must appear in person and may not be represented in Court. A juristic person, however, must be represented by a duly appointed director or other officer.

There are certain matters that the Small Claims Court may not adjudicate upon whatsoever, such as matrimonial disputes, matters involving the interpretation of wills, or the status of a person in respect of their mental capacity, to name a few.

The procedure in the Court is simple as the defendant must receive a letter of demand from the plaintiff at least fourteen days prior to the issuing of the summons. No further pleadings are necessary, but the defendant may file a written statement setting out his/her defence. The commissioner will then deal with the matter further and ultimately make an order.

The differences between an exception and a special plea

The exception is used in order to object to any pleading which will result in prejudice to either the plaintiff or the defendant and either party has the option to file an exception where, for example, the pleading lacks averments which are necessary to sustain an action or a defence, or where the pleading is vague or embarrassing. The exception to a pleading needs to be delivered before any further step has been taken in response to a pleading of the opposing party.

On the other hand, a defendant may, after entry of an appearance to defend, decide to attack the summons by raising a special plea with a special defence, which will either destroy the cause of action or postpone the operation thereof. The special plea differs from the exception in four respects. Firstly, a special plea raises some special defence that is not apparent ex facie the claim, while the basis of the exception must appear ex facie the pleading to which the exception is taken. Secondly, a special plea may be pleaded only in response to the plaintiff’s particulars of claim or declaration, while an exception may be raised to any pleading. Thirdly, the exception may be raised by the plaintiff as well as the defendant, while a special plea may only be raised by the defendant. Lastly, the correctness of the averments of the pleading to which exception is taken are assumed and therefore no evidence is led in exception proceedings, whereas the averments set out in the special plea will have to be proved if they are not admitted by the plaintiff.

Marriage Registrations

There are a million things to plan when it comes to your wedding. So it is no surprise that many people forget about their marriage regime! In South Africa, the following marriage regimes, inter alia, are recognised:

1) In Community of property

If you choose not to draw up an antenuptial agreement in South Africa then you will automatically be married ‘in community of property’. The state assumes that all assets and liabilities of both husband and wife are shared. It simply means that everything which is his is hers and everything which is hers is his. Exactly what two lovers want when entering into a marriage, right? Well if so, it is important that you keep the following in mind:

Disadvantages:
• If one of you gets into financial trouble, creditors have a claim against both of you.
• There is also little financial independence; if the wife wants to open a clothing account, the husband has to sign the account application; if the husband wants to buy a car, the wife has to sign too. Most business transaction requires the consent of both parties.
• If one partner should die, the estate of both the deceased and the surviving partner will be wound up because it is a joint estate – the surviving partner who will find themselves in legal limbo for a while.

Advantages:
• On death or divorce, the estate is divided equally.

2) Antenuptial contract (“ANC”)

The signing of an ANC means that you are married out of community of property. The law recognizes you as two separate entities.

There are two types of antenuptial contracts:
a) Antenuptial contract without accrual; and
b) Antenuptial contract with accrual

2.1) ANC without accrual
Assets acquired before or during the marriage remain separate throughout the course of the marriage. Assets are not shared and each partner has a separate estate.

Advantages:
• If one of you goes insolvent, creditors may not attach the assets of the other;
• Each of you have financial independence, feel free to spend as you please.

Disadvantages:
• In the case of death or divorce, you are entitled only to those assets you have accrued in your name. Should one of you choose to stay at home to raise children, that partner would not be entitled to the assets accumulated by the other partner.

2.2) ANC with accrual
Each partner states the value of their respective assets at the beginning of marriage. Thereafter, any assets (accumulated during the subsistence of the marriage) are shared 50/50. One can state that specific assets be excluded from the accrual, such as inheritances, donations etc.

Advantages:
• You both share in the wealth accumulated during the marriage;
• If each of you owned property before the marriage, it remains in your respective names;
• You each conduct your own independent financial affairs;
• If one of you goes into debt, it cannot be claimed from the estate of the other;
• In the case of divorce, any assets accumulated whilst married are shared – it doesn’t matter who acquired them; each partner’s current net asset value is calculated by subtracting all liabilities from assets;
• The ANC can be tailored to suit your needs;
• It protects the partner who remains at home to care for the family.

One needs to keep in mind that according to the Department of Justice and Constitutional Development, a customary marriage is automatically considered to be in community of property.

Should you have any questions, LVA will gladly assist.