YOUR WILL - MAKE SURE IT'S VALID!

The last thing you want your grieving loved ones to have to go through after you die is the delay and expense of a legal fight over your estate.

Firstly, make sure that you have a valid will. If you die without a will (i.e. "intestate"), your estate will be handled by an executor not chosen by you, and your assets will be distributed according to set "rules of intestate succession" - which may not tie in at all with your wishes.

Ensure that all necessary formalities are complied with in regard to signature, witnesses etc. The same applies to any later changes to your will - the danger of not doing so was illustrated in a case recently before the High Court, where a suicide note was claimed to have amended the deceased's will in several significant bequests.

The deceased may or may not have intended to change his will. But because his suicide note did not comply with the required formalities, it could only be accepted as valid if his intention to change the will could be proved. In this case it couldn't, and the Court left the original will unchanged. (The case is apparently on appeal). The difficulty is that the onus to prove the validity of an unformalised document is "a strict onus which is not easily discharged" - it must be shown "unequivocally that it was the genuine and final expression of the deceased's intention for the disposal of his estate".

If you don't already have a properly drawn will - complying with all formalities - get it done now! Then review it at regular intervals to ensure that it still correctly reflects your last wishes.

P.S. You also need to have your will checked for tax efficiency - more on that next month.



NEIGHBOURS BUILDING? CHECK THE PLANS NOW!

When your neighbour starts building a new house, check the building plans immediately. If there is any problem with them - and particularly if the value of your property could be prejudiced - seek legal advice on how to put a stop to the construction work without delay.

In a recent High Court case concerning the construction of a 5-storey house in an area of Cape Town with a 3-storey limit (presumably a loss of sea view was the problem), the Court remarked that you "are required to check actively for building plans every time any building work commences on a neighbour's property." Delay may disentitle you not only from having the approval of the plans set aside, but also from stopping construction in the interim.

Having said that, if you are the owner who is building, think carefully about starting work if approval of your plans is in any way open to challenge - take advice on whether you should first get the written consent of all neighbours.

The case in question shows the danger of proceeding regardless. The plan approval followed the granting of departures from zoning regulations and relaxations of title deed restrictions and, although the neighbours only realised that there was a problem after a considerable amount of construction had already taken place (some R13.4m worth), the Court found that the neighbour had given plausible reasons for the delay in acting, and ordered a halt to all building work. Worse, a demolition order is threatened if the plan approval is set aside.



PENSION DEDUCTIONS ..... CHECK YOUR SYSTEMS

Employers need to ensure that they have systems in place to make certain that pension fund contributions deducted from employees are correctly paid over to the fund administrators.

Failure to do so will be costly - you could well end up compensating your employee for the full pension withdrawal benefit, not just refunding him/her the contributions deducted.

That's exactly what resulted from a recent ruling by the Pension Funds Adjudicator, where deductions were made from an employee's salary although the employer had failed - in error - to register him as a member of the pension fund.

The compliance onus is a strict one, the Adjudicator holding that "an employer who participates in a pension owes a duty of good faith to all employees who are members of the fund" and that an employer "stands in a fiduciary relationship with all its employees, especially in matters relating to their pension benefits".



RESTRAINTS OF TRADE - EMPLOYEES' RIGHTS GIVEN MORE WEIGHT

An employee leaving your business with knowledge of your trade secrets, confidential information etc could ruin you by taking that information to your competitors - protect yourself!

Insist that employees who could harm you in this way sign a 'restraint of trade' contract up front - such restraints are valid and enforceable "unless they are unreasonable and thus contrary to public policy". Although in general parties are held to their contracts, our law subjects this to the need to balance the competing rights of the employer against the right of the departing employee to work and to earn a living.

The High Court recently confirmed that any restraint of trade that is unreasonably wide - in either geographical area or time period - will not be enforced. At best it will be reduced in scope, but, as in the case in question, it could well be entirely nullified.

In addition, the Court considered it inevitable that "as the values of dignity, equality and freedom which underlie our Constitution take root, greater weight will be given to the right of every citizen to choose their trade, occupation or profession freely and that the courts will look more critically at restraint of trade agreements where, for example, they were concluded between parties whose respective bargaining powers were substantially disparate, where the quid pro quo is either non-existent or no more than the opportunity of employment and, where the attempt to enforce the restraint owes more to an aversion to fair competition than the protection of any legitimate employer interest."

Firstly, have your restraint of trade agreements professionally drawn in accordance with those principles.

Then, enforce them consistently - in the case in question, the Court considered it relevant that the employer had, in previous instances involving other employees who left its employ, not taken any action against them.



NIGHT DRIVING - YOUR DUTIES

One of the particular hazards of driving at night is the danger of colliding with an unlighted obstruction in the road - broken down vehicles, pedestrians and livestock being perhaps the most common.

Be warned that, per a recent Supreme Court of Appeal decision, whenever there is "reasonable foreseeability of unlighted obstructions on the road ahead" (which probably applies to 99% of our roads!), it is up to you to take precautionary measures against a collision. If you do hit anything, you are at great risk of being held negligent (on the basis that either you were travelling too fast in the circumstances, or you failed to keep a proper look-out).

Although there is (perhaps strangely) no general rule in our law that "a driver must so regulate his speed that he can stop within the limits of his field of vision", not doing so is likely to put you in the wrong immediately because you at all times have a legal duty to "guard against dangers which [you] could or should have foreseen".

Thus a bus driver who collided with an unlit military vehicle (broken down and partially protruding into the road) was held to have been negligent when, blinded by the lights of an approaching vehicle, he failed to "reduce his speed by braking immediately so as to be able to stop within the range of his vision or even to stop".



MARCH WEBSITE: VIEW AND PAY TRAFFIC FINES ONLINE

Check whether you have any outstanding traffic fines, view them (often with camera pictures) and pay them via credit card on the Payfine website at www.payfine.co.za (currently only Johannesburg, the Free State, Cape Town, Stellenbosch and Paarl are covered).

The cost (R5 per fine) is nominal in comparison to the hassle and travel costs saved - and, despite disclaimers, the municipalities involved seem to have endorsed the idea. (Note: If the offence was a "less serious" one committed in Johannesburg between 1 November 2008 and 11 February 2009, it may be cancelled; check with the Metro Police, see their "Traffic Fines" page www.joburg.org.za/content/view/39/71/ for contact details). And if you want to know more about the AARTO ("Demerit Points") system (currently in force on a pilot basis in Tshwane, and due for a national rollout later this year), have a look at Payfine's FAQ page www.payfine.co.za/FAQ.aspx.


...... AND 2 BONUS SPORTS SITES

Rugby fanatics will want to plan their next 3 months around the Super 14 fixtures - find them at www.super14.com/fixtures (logs on the Home Page www.super14.com).

And if you haven't already got your tickets for the 2010 World Cup, check out CapeTownMagazine.com's ticket-buying tips at www.capetownmagazine.com/articles/Sport-a-Fifa-2010~c9/10-Best-Tips-on-How-to-Buy-Tickets-for-the-2010-FIFA-World-Cup~1455. Buy your "first phase" tickets until 31 March at the FIFA website www.fifa.com.


Have a great March!

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