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Use Your Will Power
Your Claim: Time Is Ticking
Tenders - Transparency Sustained
Whistleblowing: Difficult Decisions For Both Employees And Employers
Winds Of Change In The Marriage Act; And "Domestic Partnerships" On The Horizon
Don't Lose Your House To A Forfeiture Order!
Website Of The Month
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| January 2006 |
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USE YOUR WILL POWER
The importance of ensuring that you have a will, and that it is drawn correctly, has again been underlined by two recent cases, which highlight the consequences of not doing so in two different respects: -
- It is not enough to draw and sign a document in which you set out how you wish your assets to be dealt with. Either the document must comply with all the formalities required by law, or a court must accept that you intended the document to be a will. A document such as an instruction to someone else to draw a will for you will not suffice.
- If you want to decide how your mortal remains are to be disposed of, you must give an appropriate direction in your will. Otherwise, your executor (and not, for example, your surviving spouse) is entitled and obliged to make that decision.
On a more general note, a properly drafted will (updated regularly to take account of changes in your circumstances) is essential. Without it, there is a real risk of the loved ones you leave behind suffering hardship and distress at the time when they are least able to cope with additional trauma. And choose your executor well; the winding-up of a deceased estate is a specialised function carrying substantial responsibility.
YOUR CLAIM: TIME IS TICKING
If you have a claim against anyone, for anything, don't assume that you have a full three years (the normal prescription period) before it becomes unenforceable. Often, you are subject to much shorter time limits as a result of "time-bar" clauses in contracts. In a recent case, for example, an insured whose claim was rejected by his insurance company failed to issue summons within the 90 day period specified in the policy. The insured argued that time-bar clauses are unconstitutional, but the Supreme Court disagreed and held that his claim had prescribed (good-bye to R181.000 plus interest!).
In any case, whatever time limit you think you may have, don't delay in seeking legal assistance. The laws relating to prescription are not simple, and leaving it all to the last minute is a terrible idea anyway; the summons has to be prepared and served, and that can easily push you over the time limit. You will kick yourself if you lose a lot of money by procrastinating over a good claim.
TENDERS - TRANSPARENCY SUSTAINED
If your tender for a contract with a State organ is unsuccessful, you can demand disclosure of the terms of the contract, including the price composition, using PAIA (the Promotion of Access to Information Act), provided, according to a recent case, that the contract is "a commercial agreement of a public character".
WHISTLEBLOWING: DIFFICULT DECISIONS FOR BOTH EMPLOYEES AND EMPLOYERS
The "Whistleblower's Act" (more properly, the Protected Disclosures Act) provides procedures for employees to disclose unlawful conduct by their employers (in both the public and private sectors), without fear of reprisal.
Although the Act gives protection to employees ("employee" is widely defined), independent contractors are specifically excluded from protection - an omission that is under review by the South African Law Commission.
It is not always easy to know where to draw the line between a protected disclosure and an unprotected one. In addition the practical application of the Act has been criticised for not consistently giving adequate protection and/or compensation to employees. So whether you are an employee wondering whether to make a disclosure, or an employer wondering whether to take disciplinary action against an employee for doing so, you should seek advice before acting.
WINDS OF CHANGE IN THE MARRIAGE ACT; AND "DOMESTIC PARTNERSHIPS" ON THE HORIZON
Wide publicity has been given to the recent Constitutional Court ruling whereby Parliament has a year to amend the Marriage Act to allow for the marriage of same-sex couples. Simultaneously the South African Law Reform Commission has been investigating the possibility of new legislation to regulate all "domestic partnerships between people of the same or opposite sex". In the interim, there are substantial grey areas surrounding the nature and legal effect of such relationships, with or without some form of contractual basis. In light of the proprietary, tax, domestic and other consequences involved, it would be wise to take professional advice before entering into, exiting from, or contracting with anyone in, any informal union.
DON'T LOSE YOUR HOUSE TO A FORFEITURE ORDER!
Could you ever lose your most valued asset - perhaps even your house - if it happens to have been used in a crime without any involvement or guilt on your part?
To answer that question, we must start with the fact that any property that is used to commit an offence, or that is the proceeds of "unlawful activities", may be forfeited to the State in terms of the Prevention of Organised Crime Act.
Anything with value is at risk - cash, cars, shares, boats, "rights, privileges, claims and securities and any interest therein and all proceeds thereto." Even a house from which drugs were sold has been held (in a recent Supreme Court case) to have been "an instrumentality of the offence of dealing in drugs" and thus liable to forfeiture.
What however if the property at risk is yours, and you are a totally innocent owner? The good news is that you can apply to court for exclusion of your property (or your interest therein) from the forfeiture order. The bad news is that the onus is on you to prove innocence. You have to prove not only that you acquired the interest legally and without guilty knowledge, but also that you had no reasonable grounds for suspicion.
That "reasonable" bit brings in a degree of uncertainty as to whether a court will take the same view as you do as to what is or is not suspicious. So don't go lending your property when you have any doubts as to the legality of the use it will be put to; and watch whom you rent your house (or factory, or office, or farm) to.
WEBSITE OF THE MONTH
For "Clear Instructions on How To Do (Just About) Everything", visit http://www.ehow.com. Whether your need for knowledge is business or personal, eHow, under categories such as "Finance/Business", "Health" and "Careers/Education", offers guidance on a diverse range of topics, such as how to: -
Prepare for a Meeting
Copy Text From a PDF (Acrobat) Document
Thank Your Boss for a Raise
Buy a Home With Poor Credit (on this one, get professional advice on the applicability of some of these ideas in South Africa)
Shop online securely
Bond with your Rabbit
Store valuables
Choose a good computer password
Buy an MP3 Player
Remember Names
And a lot, lot more).
Have a good January!
Note: Copyright in this publication and its contents vests in LawDotNews(law.news)
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