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Author: Jan L Jordaan

Antenuptial contracts: Can I get one after marriage?

Antenuptial contracts: Can I get one after marriage?

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Couples who are interested in an antenuptial contract often make the decision to get one before they are married. That is the ideal scenario. However, some couples may have already gotten married in community of property, and later decide to change to another form of marriage contract.

Can it be done?

The Matrimonial Property Act allows a husband and wife to apply jointly to court for leave to change the matrimonial property system which applies to their marriage.

  • According to South African law, the parties who wish to become married out of community of property must enter into an antenuptial contract prior to the marriage ceremony being concluded.
  • If they fail to do so then they are automatically married in community of property. Of course, many people are unaware of this provision and should be able to satisfy the court that it should change their matrimonial property system if it was their express intention that they intended to be married out of community of property.

What are the requirements?

In order for the parties to change their matrimonial property system, the act mentions the following requirements:

  • There must be sound reasonsfor the proposed change.
  • The Act requires that notice of the parties’ intention to change their matrimonial property regime must be given to the Registrar of Deeds, must be published in the Government Gazette and two local newspapers at least two weeks prior to the date on which the application will be heard and must be given by certified post to all the known creditors of the spouses.
  • The court must be satisfied that no other person will be prejudiced by the proposed change. The court must be satisfied that the rights of creditors of the parties must be preserved in the proposed contract so the application must contain sufficient information about the parties’ assets and liabilities to enable the court to ascertain whether or not there are sound reasons for the proposed change and whether or not any particular person will be prejudiced by the change.

What is the downside?

The downside is that the application is expensive because you and your spouse have to apply to the High Court on notice to the Registrar of Deeds and all known creditors, to be granted leave to sign a Notarial Contract having the effect of a postnuptial contract. You must also have solid grounds for wanting to switch to an antenuptial contract. Therefore, it’s not something you can do on a whim.

References:

  • The Matrimonial Property Act 88 OF 1984

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

VAT increase and the effect on property transfers and the registration of transfers before and after 1 April 2018

VAT increase and the effect on property transfers and the registration of transfers before and after 1 April 2018

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The increase was announced in the Minister of Finance’s Budget Speech on 21 February 2018. The standard rate of VAT will change from 14% to 15% on 1 April 2018 (the effective date).

How will this VAT increase affect property transactions, property registrations and estate agent commissions?

Question 1: How will the rate increase work generally for fixed property transactions?

The rate of VAT for fixed property transactions will be the rate that applies on the date of registration of transfer of the property in a Deeds Registry, or the date that any payment of the purchase price is made to the seller – whichever event occurs first. (See, however, the exception in Question 2 below where registration (delivery) of the fixed property occurs on or before 23 April 2018.)

If a “deposit” is paid and held in trust by the transferring attorney, this payment will not trigger the time of supply as it is not regarded as payment of the purchase price at that point in time. Normally the sale price of a property is paid to the seller in full by the purchaser’s bank (for example, if a bond is granted) or by the purchaser’s transferring attorney.

However, if the seller allows the purchaser to pay the purchase price off over a period of time, the output tax and input tax of the parties is calculated by multiplying the tax fraction at the original time of supply by the amount of each subsequent payment, as and when those payments are made. In other words, if the time of supply was triggered before 1 April 2018, your agreed payments to the seller over time will not increase because of the increase in the VAT rate on 1 April 2018.

Example:

A vendor sells a commercial building and issues a tax invoice to the purchaser on 10 January 2018. If the property will only be registered in the Deeds Registry on or after 1 April 2018 and payment will be made by the purchaser’s bank or transferring attorneys on the same date, then the time of supply will only be triggered at that later date. In this case, VAT must be charged at 15% as the rate increased on 1 April 2018 which would be before the time of supply. It does not matter that an invoice or a tax invoice was issued before the time of supply and before the VAT rate increased. The tax invoice in this case would also have to be corrected as it would have indicated VAT charged at the incorrect rate of 14%.

See also the next questions below for the rate specific rule that provides an exception for the purchase of “residential property” or land on which a dwelling is included as part of the deal.

Question 2: Is there a rate specific rule which is applicable to me if I signed the contract to buy residential property (for example, a dwelling) before the rate of VAT increased, but payment of the purchase price and registration will only take place on or after 1 April 2018?

Yes. You will pay VAT based on the rate that applied before the increase on 1 April 2018 (that is 14% VAT and not 15% VAT). This rate specific rule overrides the rules as discussed in Question 1, which applies for non- residential fixed property.

This rate specific rule applies only if:

  • you entered into a written agreement to buy the dwelling (that is “residential property”) before 1 April 2018;
  • both the payment of the purchase price and the registration of the property in your name will only occur on or after 1 April 2018; and
  • the VAT-inclusive purchase price was determined and stated as such in the agreement.

For purposes of this rule, “residential property” includes:

  • an existing dwelling, together with the land on which it is erected, or any other real rights associated with that property;
  • so-called plot-and-plan deals where the land is bought together with a building package for a dwelling to be erected on the land; or
  • the construction of a new dwelling by any vendor carrying on a construction business;
  • a share in a share block company which confers a right to or an interest in the use of a dwelling.

Question 3: How will the VAT increase affect the seller of the property and estate agent commission?

Two possible scenarios can apply:

Scenario 1:

Should the contract of sale read that a percentage commission plus VAT is payable, that will be calculated at 14% if transfer takes place before 1 April 2018 and at 15% when registration takes place on or after 1 April 2018.

The net result is that the seller (who sold prior to 31 March 2018) will receive a lower net amount on the selling price because of the increased VAT, should transfer take place after 31 March 2018.

Scenario 2:

Should the contract of sale refer to a fixed commission amount inclusive of VAT, the opposite will apply. The seller will receive the same amount, but the agent will receive less because of the increased VAT.

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For more information on the VAT Increase, download the SARS VAT Increase general guide and FAQs here

Please contact us should you have any specific questions.

How does the Budget Speech affect you, your property transactions and your estate?

How does the Budget Speech affect you, your property transactions and your estate?

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On 21 February 2018, Finance Minister Malusi Gigaba delivered his 2018 Budget Speech.

Hereby a summary of the most significant proposals for the 2018/2019 Budget as tabled by the Minister of Finance:

2018/2019 Tax Proposals:

  •  VAT: A one percentage point (1%) increase in VAT from 14% to 15%.
  • No adjustments to the top four income tax brackets. Below inflation adjustments to the bottom three income tax brackets proposed.
  • Fuel Levies: Overall increase of 52c/litre for fuel, consisting of a 22c/litre increase in the general fuel levy and 30c/litre increase in the Road Accident Fund levy, effective 4 April 2018.
  • Luxury Goods Tax: Increase in the ad-valorem excise duties rate on luxury goods from 7% to 9% effective 1 April 2018.
  • Estate Duty Tax: Increased estate duty, to be levied at 25% for estates above R30 million, effective 1 March 2018. This is a 5% increase.
  • Capital Gains and Dividend Tax: The capital gains tax rate for individuals remains unchanged at 18%, while the dividends tax rate remains unchanged at 20%.
  • Medical Tax Credits: The medical tax credits will increase from R303 to R310 per month for the first two beneficiaries (2.3% increase), and from R204 to R209 per month for the remaining beneficiaries (2.5% increase).
  • Sin Tax: Excise duties on tobacco products will increase by 8.5% and on alcohol by 6-10%.
  • Environmental & Health Tax: Increases in the plastic bag levy, the motor vehicle emissions tax and the levy on incandescent light bulbs to promote eco-friendly choices.

 

Transfer Duty Fees:

Transfer duty fees have remained unchanged. The following rates on transactions in respect of acquisition of property is payable (and not subject to VAT). 

Value of Property (R) Rate
0 – 900 000 0%
900 001 – 1 250 000 3% of the value above 900 000
1 250 001 – 1 750 000 10 500 + 6% of the value above 1 250 000
1 750 001 – 2 250 000 40 500 + 8% of the value above 1 750 000
2 250 001 – 10 000 000 80 500 + 11% of the value above 2 250 000
10 000 001 and above 933 000 + 13% of the value above 10 000 000

 

Estate Duty Tax:

The 2018 Budget proposes to increase estate duty from 20% to 25% for estates worth R30 million and more. This is in line with Davis Tax Committee recommendations, and in keeping with the progressive structure of the tax system. Any donations above R30 million in one tax year will be taxed at 25%, in order to limit the staggering of donations and avoid the higher estate duty rate. Both measures will be effective from 1 March 2018.

Estate duty is levied on property of residents and South African property of non-residents less allowable deductions. The duty is levied on the dutiable value of an estate at a rate of 20% on the first R30 million and at a rate of 25% above R30 million. A basic deduction of R3.5 million is allowed in the determination of an estate’s liability for estate duty as well as deductions for liabilities, bequests to public benefit organisations and property accruing to surviving spouses.

 

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Minimum wage increase

Minimum wage increase

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The Department of Labour released a media statement notifying trade unions about the wage increase. Once it becomes enacted as a law, no employee may be paid below the minimum wage, and trade unions are there to ensure that this law is upheld by the employer.

South Africa’s labour market is largely characterised by high levels of unemployment, inequality and poverty. As a means of reducing these and building towards achieving the broader policy objectives of the country, social partners have identified minimum wage as benefiting all workers in this regard.

Schedule 2 of the proposed National Minimum Wage Act sets out the minimum wage for workers with learnership agreement. The national minimum wages for other workers are as follows:

  • R20 per hour to be implemented and enforced from 1 May 2018
  • R18 per hour for farm and forestry workers
  • R15 per hour for domestic workers
  • R11 per hour for workers on the Expanded Public Works Programme (EPWP)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Spanking your child is illegal in South Africa

Spanking your child is illegal in South Africa

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The South Gauteng High Court ruled that the common law defence of reasonable chastisement is not in line with the Constitution and no longer applies in our law. This means disciplining your child in the form of a spanking is no longer considered legal within South Africa.

How did it come to this?

It has always been considered a crime of assault to hit a child, however, if a parent was charged, they would be able to raise a special defence which said that if the chastisement, or discipline, was reasonable they would not be found guilty.

The special defence of chastisement has been removed by the Court, which was to bring the common law in line with the Constitution. This followed an appeal by a father who had been found guilty of assault because he beat his 13-year-old son. The way in which he beat his son was deemed to exceed the bounds of reasonable chastisement.

The Court said that it wanted to guide and support parents in finding more positive and effective ways of disciplining children. The Minister of Social Development, Bathabilie Dlamini, also agreed that the defence of reasonable chastisement is unconstitutional. The Court said that protecting children was particularly important in the context of the high levels of child abuse and violence that pervade our society.

Reference:

  • YG v S (A263/2016) [2017] ZAGPJHC 290 (19 October 2017)
  • “It’s now illegal to spank your child in SA”. https://www.enca.com/south-africa/it-is-now-illegal-to-spank-your-child-in-sa

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Can someone record me without my permission?

Can someone record me without my permission?

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Over the past few months, we have seen videos being posted on social media of physical altercations, poor service delivery and racial slurs, but the victims of the videos and audible recordings are usually unaware that they are being recorded. The recordings are conducted without their permission and then shared. But is someone allowed to record you without being granted permission and the share those recordings?

Audio recording

Audio recording includes the recording of conversations conducted over the phone, recording someone speaking to a room full of people, and recording a direct conversation, without the other party’s permission. Recording without consent is against the law, unless

  • You are party to the communication;
  • You have written permission of one of the parties to the conversation;
  • The recording is in connection with the carrying on of business.

Direct video recording

This is the recording of a person with whom you are having a face-to-face conversation. The video taping of someone without their consent is permissible because you are party to the conversation, much like audio recordings. Recording an altercation between you and someone else, or recording an altercation at an airport is legal due to where the conversation is occurring – a public place.

Section 4 of the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (RICA) defines that a person is party to the conversation if they are in audible presence of the conversation. If you are in an altercation in a vicinity where other people can hear you, they are permitted to film because they are party to the altercation, therefore in direct communication with you.

Indirect video recording

Indirect communication is a much wider category, which includes data, speech and moving images. Skype conversations, although they appear to be face-to-face, are included as indirect communication because it is communication through an online telecommunications service. Thus, you would need to either be one of the parties in the engagement, or have been given consent from one of the parties to record the video/messages.

When is it illegal?

  • If the recording is through an interceptive method such as “bugging” or a “tapping” a device;
  • Hiding to spy on one of the parties for recording purposes, due to the parties being unaware of your presence;
  • When you are in no way party to the conversation. Being party to the conversation is if you are the sender, the recipient, or any person included in the communication.

Exception: RICA permits recordings carried out by law enforcement personnel in certain circumstances.

References:

  • Kevin Illes, A. (2017). Legal implications of secret recording. [online] Moneyweb. Available at: https://www.moneyweb.co.za/archive/legal-implications-of-secret-recording/ [Accessed 15 Jun. 2017].
  • Writer, S. and Writer, S. (2017). When you can – and can’t – legally record someone in South Africa. [online] Businesstech.co.za. Available at: https://businesstech.co.za/news/general/167107/__trashed-65/ [Accessed 15 Jun. 2017].
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
Demystifying the executor in a deceased estate

Demystifying the executor in a deceased estate

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During a person’s lifetime s/he will gather assets, in other words, belongings such as a house or a motor vehicle. These assets and liabilities will form part of a person’s estate. At the death of that person, his/her deceased estate must be administered, in other words, divided, distributed and controlled by someone. This person is called an executor.

However, the role of an estate executor and who can be appointed as one has been largely misunderstood.

What does the executor do?

“Executor” is the legal term for referring to the person, or people, nominated in your will to carry out the directives you set out in your will.

  1. This means that it is the executor’s responsibility to disburse your property to the mentioned beneficiaries in your will, but also obtain information on potential heirs, collecting and arranging payments, and approving or disapproving creditors’ claims.
  2. It is the executor’s duty to calculate and pay the estate tax, and to ensure that the correct documentation is filed with the relevant authorities.
  3. The executor is the individual that represents your estate.

Who can be appointed as the executor?

It has become normal to appoint a friend, family member or beneficiary to act as the executor, as they most likely have intimate knowledge of your estate and your affairs, but also, they will not rack up the fees that a legal body might accrue.

However, there is a misconception that you can avoid the fees by appointing a family member as the estate executor, but this could also mean that you are deferring the cost to the nominated family member.

  1. Family members appointed as executors on larger estates immediately find themselves out of their depth, and not only end up hiring a professional executor, but may also pay more for these services than necessary.
  2. A simple way to address this is by appointing a “professional” executor during your lifetime. This allows you to negotiate the executor fees.

If you appoint a family member, make sure that they understand that they will have to appoint a professional agent, and that they should negotiate the fee and be very cautious of agreeing to a fee arrangement in terms of which the professional agent charges their professional fee, instead of the legislated scale.

References:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
WHO SHOULD YOU ASK TO BE EXECUTOR OF YOUR ESTATE?

WHO SHOULD YOU ASK TO BE EXECUTOR OF YOUR ESTATE?

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If you have a valid will it is of grave importance to mention who you want to appoint as executor. But the question always arises, who? John O. McManus, an estate attorney in New York City said this – “If you appoint someone you love as executor, get your house in order. Otherwise, appoint someone you do not”. And he was not speaking in jest.

As much as we wish this wasn’t true, an executor has a real tough responsibility of carrying out all the directives of a final will and testament. He’s not only responsible for dividing the property to the mentioned beneficiaries, but also to obtain information on potential heirs, collect and arrange payments, and approve or disapprove creditors’ claims, and more if the will is complicated.

Choosing an executor

Deciding on who will be your executor should be done very carefully, especially since that person will be in charge of your last wishes when you’re gone. Many people choose their closest relatives, often someone with a law degree or an accounting background. Though this might be a good choice, you need to be aware that the administration of a deceased estate can be a daunting task, not to mention time consuming and often frustrating.

It has become standard practice to appoint a family member or friend as the executor, especially if you want to save a few bucks. They might not have the knowledge or capabilities to do the job. It could cause undue heartache and stress, as well as have unprepared for financial implications, should they need to hire a professional executor to take over the administration process.

If your desire is to nominate your spouse as executor, you might want to reconsider.  It makes sense for your spouse to be in control, especially if you shared many happy years together. However, if you have both agreed that your spouse would be the best person for the job, it is strongly advised to appoint an attorney or administrator to assist, just in case your spouse is in no state to deal with everything by themselves. After all, your spouse will be affected more than anyone else by your death, and trauma like losing a life partner can take its toll.

You might also need to consider that your spouse could pass away before you do.  There is also the possibility of divorce. Life can change in an instant and we all need to be prepared.

If you don’t nominate an executor, the court will appoint one for you and that person might not be an ideal choice. Be sure to update your will and your executor should any major changes occur.

So what would be your best option?

It is highly recommended to have legal counsel and financial advice. South African courts prefer it if you seek outside professional help when making important decisions about estate assets, especially if the estate is large.

You don’t only need to nominate one executor in your will. Consider nominating a few responsible independent individuals, and include an attorney or administrator to deal with the legal matters.  It will put your mind at ease and take some strain off your loved ones.

Should your choice be a family member or friend, make sure you have discussed this with them beforehand so that they are aware of the process. In fact, find out how the process works and ensure both you and the person you want to nominate understands the role of an executor. Knowing the process will just make it easier for them, or they might decide otherwise.

If you do decide to appoint a professional executor or administrator, you could negotiate the executor fees and have this included in your will as a condition.

Furthermore, save the family possible disputes by being as specific as possible with regards to your personal belongings – such as photo albums and other sentimental and valuable collections. Your will should direct what happens to all personal property, but remember in situations where there’s a question of who should receive something, the executor has the final say.

Whatever your decision, keep in mind a professional executor and/or administrator will make the process so much quicker and smoother, and allow everyone peace of mind. Our main aim is to make it easier for your family and friends in their time of loss. We advise that you go through your will and ensure things are in place for the sake of your loved ones.

Read about what we can do for you on our website – https://www.probatessa.co.za/probates-services.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

READY TO SIGN THE OFFER TO PURCHASE FOR YOUR DREAM HOME? MAKE SURE YOU HAVE CONSIDERED ALL THE
COSTS INVOLVED.

READY TO SIGN THE OFFER TO PURCHASE FOR YOUR DREAM HOME? MAKE SURE YOU HAVE CONSIDERED ALL THE
COSTS INVOLVED.

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You’ve finally found the property you want. Your bank says your chances of being approved for a mortgage loan are good. You’ve even saved up a 10 % deposit in case this is required. You’re happy, because you’re now ready to sign the offer to purchase.

Before you sign however, do you know what other costs you need to pay when purchasing property?

Buyers rarely take the time to find out the details with regards transfer fees and bond registration costs. They are often caught off guard when they receive invoices from different attorneys involved in the transfer and registration process of the property.

Transfer and bond fees

Confusion often arises between the buyer and the seller as to who should bear the transfer duties. That’s why it’s a good idea to ask your property agent or attorney to obtain a written quote for these fees, so that you will know exactly what you are liable to pay.

Buyers are not only responsible for paying transfer duties. They will also need to pay the bank a bond registration fee once the loan application has been approved. This often needs to be paid days after all necessary documentation has been completed and signed by the buyer.

In addition to these costs, a bank initiation fee is required, which can range from R1 000 to R6 000, depending on the loan amount and the banking institution you are applying with. Fortunately, if a buyer is unable to pay the initiation fee in full, he can arrange to have this included in his bond repayments.

Buying property is an expensive affair. To help encourage home ownership in South Africa, our previous Finance Minister, Pravin Gordhan, announced in his 2017 Budget that buyers who purchase property less than R900 000 will no longer have to pay transfer duty. One and two bedroom sectional title units have become very popular for investors and first time home owners. Discuss this with your property agent or a property conveyancer beforehand, and keep in mind the location in which you want to buy. Location of property plays a big role.

Deposit payments and loan criteria

Your deposit is not there to pay the extra costs involved in purchasing property. It is to secure the purchase of the property you want to buy. Banks currently only grant 100 % mortgage loans for clients with exceptionally good credit profiles.

There are certain reasons why they would grant a lesser amount or decline the application completely.

  • If the buyer has a Less than perfect credit score
  • The bank area exposure has reached its limit
  • Property condition and property location

Let’s say for example, a buyer qualifies for an amount of R650 000 according to the bank. The buyer goes out and finds a property and signs the offer to purchase. The bank only grants him a loan of R600 000. The reasons – condition of property and location.

Is it avoidable? No not really. What you can do though is get as much information about the property and the location as possible. Speak to your agent or a conveyancer. They can give you good advice based on their profession, knowledge and experience.

When applying for a mortgage loan, buyers should not only apply with their own bank. It’s advisable to also approach other financial institutions to make sure you receive the most competitive offer on interest rates.

Municipal rates and taxes, levies

Buyers need not worry about this. It is the seller’s responsibility to pay these costs three months in advance to obtain a clearance certificate. In other words any outstanding municipal rates and levies must be paid by the seller until transfer of ownership has taken place, i.e. until the property is lodged and registered at the deeds office. Thereafter, those fees will be the responsibility of the new property owner.

If the property registers earlier for example in month two, the attorney will need to obtain the last month’s rates and/or levies back from the buyer (pro rata).

Knowing and understanding the different costs involved will create a much clearer picture from the beginning, and avoid any delays and disappointments for both the buyer and the seller. Buying property is a long term commitment, and should not become a financial burden for anyone under normal circumstances.

Make sure you have all your facts and figures before you sign the offer to purchase.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Can I amend my will?

Can I amend my will?

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Having a will is a final statement of how you want your assets to be managed after your death. However, sometimes you may want to change it. You may have had a child, for example, and what to add him/her into your will. You may have also acquired more assets and would like to reconsider how they get divided among your possible heirs.

What is a codicil?

When you want to add something to your will or make a minor change, then you can make use of a codicil. A codicil is a schedule or annexure to an existing will, which is made to supplement or to amend an existing will. A codicil must comply with the same requirements for a valid will. A codicil need not be signed by the same witnesses who signed the original will.

What if I want to amend my will?

Amendments to a will can only be made while executing a will or after the date of execution of the will. Amendments to a will must comply with the same requirements for a valid will and if you cannot write, with the same requirements listed under that heading. When amending a will, the same witnesses who signed the original will need not sign it.

Must I amend my will after divorce?

A bequest to your divorced spouse in your will, which was made prior to your divorce, will not necessarily fall away after divorce.

The Wills Act stipulates that, except where you expressly provide otherwise, a bequest to your divorced spouse will be deemed revoked if you die within three months of the divorce.

This provision is to allow a divorced person a period of three months to amend his/her will, after the trauma of a divorce.

Should you however fail to amend your will within three months after your divorce, the deemed revocation rule will fall away, and your divorced spouse will benefit as indicated in the will.

References:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)