REGISTERING A CIVIL UNION? FIX THE FINANCES FIRST!

The new Civil Union Act provides that "the legal consequences of a marriage contemplated in the Marriage Act apply, with such changes as may be required by the context, to a civil union."

Anyone considering registering a civil union (which is defined as being "solemnised and registered by way of either a marriage or a civil partnership") should do their homework first in regard to regulating their respective financial positions before they register. Without an ANC (ante-nuptial contract, not the political party!) you will end up married in community of property, which may not be your best option. Take advice on whether to go for the accrual system or not.

Note also that the Act has dropped all the Bill's provisions as to domestic partnerships, so the suggestion in last month's issue stands - anyone in a domestic partnership (same-sex or opposite-sex) not yet recognised as a legal marriage should ensure that they have a written contract regulating their rights, particularly to property and assets acquired during the partnership.

To take just one example of why this is prudent, consider section 21 of the Insolvency Act. The danger in section 21 is that if one partner's estate is sequestrated, the other (solvent) partner's estate falls automatically into the insolvent estate, and the onus is the solvent partner to prove genuine separate ownership. That may be difficult, particularly in long-standing relationships. Section 21 has always held risks for opposite-sex couples (married or not); now it seems likely that it will apply equally to same-sex couples.


'TIS THE SEASON TO BE JOLLY (BUT VERY SOBER WHEN DRIVING - EVEN IF YOU AREN'T A MAFIA BOSS)

You might think that the "Prevention of Organised Crime Act" only applies to Organised Crime. Not so - the Supreme Court has held that, despite the Act's name, its (very robust) asset forfeiture provisions apply to all types of crime. Consequently, in a recent case several drunk drivers were held to be at risk of losing their cars; the car in each case being an "instrumentality" of the offence. Forfeiture in such cases isn't automatic, but it is a real danger.

Being acquitted of the relevant criminal charges won't necessarily help - the Constitutional Court has previously upheld the application of forfeiture provisions to a "drug house" where the actual prosecution failed on a technicality. Bear in mind that the State in seeking forfeiture need only prove its case on a balance of probabilities (a lot lower than the "beyond a reasonable doubt" standard of proof required for a criminal conviction).


RECOURSE AGAINST THE FALSE WITNESS

A witness in a civil case causes you loss by making an inaccurate or incorrect statement - can you claim? Previously not, in that the general rule has always been that witnesses have absolute immunity from any form of civil action - prosecution for perjury was the only recourse, which is cold comfort when you are out of pocket.

However, that has now changed - the High Court has held that there is indeed a civil claim for damages where the false evidence is given deliberately and with malice.


KEEP RESTRAINTS OF TRADE LEAN AND MEAN (AND CONSTITUTIONAL)

Restraints of trade are an integral part of many modern employment contracts - without a restraint, the "key man" with access to confidential information can cripple your business as soon as he/she leaves and joins (or founds) the opposition.

But a restraint needs to be correctly configured if it is to stand up to scrutiny in the Courts. Although the law has always recognised the employer's right to enforce this type of contract so as to protect its "legitimate proprietary interests" (and in general parties must comply with their contractual obligations, even the unfair and unreasonable ones), there is always a balance struck with the employee's right to work and earn a living.

To this end, the restraint is tested for reasonableness and for "accordance with public policy". Increasingly the Courts are also referring to the provision in Section 22 of the Constitution guaranteeing every citizen "the right to choose their trade, occupation or profession freely" - thus in a recent High Court judgment it was held that the reasonableness and consonance with public policy has to be "the one expected of a free, open and democratic society envisaged in the Constitution".

The most common mistake is to make a restraint as widely worded as possible (in activity, area and time period), but that is courting disaster. If the Court thinks that it unfairly erodes the employee's right to choose his profession, the Court could dilute it, or even declare it totally unenforceable.


WHEN THE SUSPENSIVE CONDITION IS THERE FOR YOUR BENEFIT, SAY SO!

Contracts often contain suspensive conditions, which provide that the sale falls away if the condition is not fulfilled by a specified time (e.g. a bond clause in a property sale agreement).

If the clause is there to protect you, check that it says that it is exclusively for your benefit and can be waived by you. That gives you the option to waive it without the other party's agreement if you decide later that you no longer need the protection. In a recent case dealing with a sale of land that was subject to rezoning, the buyer wanted to continue with the sale even though rezoning wasn't achieved. But he was unable to prove a right to waive the condition, so lost the case - and the land.

And even if you have a properly worded condition, keep an eye on the time limit - you must waive it before expiry.


HOW TO GET A SEQUESTRATION ORDER - EVEN WHEN THE DEBT IS DENIED

In order to sequestrate a debtor's estate you must establish, on a clear balance of probabilities, three essential elements: -

1. That you have a liquidated claim for no less than R100 (a "liquidated" claim is one where the amount owing is agreed or fixed, or can be easily calculated), and
   
2. That the debtor has committed an "act of insolvency" (these are listed in the Insolvency Act), or is actually insolvent (i.e. liabilities exceed assets), and
   
3. That it will be to the advantage of creditors.

• Gumtree at www.gumtree.co.za is "a network of free online classifieds and community websites", with pages for Joburg, Cape Town and Durban; and a host of other cities in the UK and elsewhere.
  
  
• U.S. based Craigslist (local sites available at http://geo.craigslist.org/iso/za) is similar, but hasn't really caught on here yet.