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EDITOR’S LETTER


Dear Reader

We would like to make a tribute to the women of South Africa, who have fought hard for equality, dignity and lawfulness – and for this they are true heroes.

Even though women have made their mark as equal citizens, some things will always be like kryptonite to every super woman out there.

In this issue we provide you with guidance and additional superpowers on how to overcome some issues that still surface to this day. Albeit maintenance issues, sexual harassment or even traditional hurdles – we’ll be the Robin to your Batgirl.

Don’t let anyone steal your thunder. You are magnificent.

JJR Inc. Team

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CUSTOM, RELIGION AND INTESTATE INHERITANCE.


– Karolien van Wyk

If a person dies without a valid will, the deceased estate will be wound up in accordance with the Law of Intestate Succession, therefore statutes and governing law will decide how the estate will be distributed and it will not follow the wishes of the deceased. But in the not so distant past, women married under customary law were unable to inherit from their spouses should they have passed without a valid will and the situation was similar for couples in a religious marriage.

Historically, the African system of succession was governed by the principle of primogeniture in the male line. Primogeniture is a rule of customary law that allows the oldest male to succeed the person who passed away to the exclusion of all others. The male ascendants would be considered in the situation where the deceased had no descendants. Therefore, any of the deceased’s wives would not be able to inherit intestate.

In our post-Constitution country, this appeared to be unconstitutional as it discriminated against women married under customary law. In 2004 the Constitutional Court ruled in the case of Bhe v Magistrate of Khayelitsha and others1 that the practice of primogeniture is unconstitutional. In this case the deceased’s long term partner and his two daughters were unable to inherit or claim maintenance from the estate based on the fact that they were female. The whole of the deceased’s estate was inherited by the deceased’s father by way of primogeniture. Since this ruling the situation has changed. Women married under customary law and in polygynous marriages as well as all the children of the deceased, including illegitimate ones, now have equal succession rights.

To bring the legislation in line with the above ruling, the Reform of Customary Law of Succession and Regulation of Related Matters Act2 (hereinafter “the Act”) was promulgated on 20 September 2010. The Act does away with primogeniture and states that should there be enough money in the estate every spouse of a polygynous marriage may inherit the equivalent of a child’s share which cannot be smaller than R250 000. If there is not sufficient money in the estate, the estate will be divided equally between the surviving spouses.

Religious marriages are not recognised in the South African legal system, and therefore couples married in accordance thereto were not able to inherit from one another in intestate estates. This is no longer the situation. Constitutional Court Justice Albie Sachs found in the Daniels case3 that all laws should be read in the spirit of the constitution. In this matter the Constitutional Court found that with regards to inheriting property and claiming maintenance, Islamic and Hindu marriages are seen as marriages and therefore the parties will be able to inherit from one another in intestate estates. In 2009 the Constitutional Court ruled in the Hassam case4 that when a man dies without a valid will and has more than one wife in a religious polygynous marriage, all spouses will inherit equal shares.

It is important to note that for a will to be considered valid the will has to be undersigned and signed on each and every page by the testator and two competent witnesses in each other’s presence. A competent witness is anyone over the age of 14 years, who is able to sign their name and will be able to testify in a court. The witnesses cannot be the executor of the will or receive any benefit from it.

In light of the above it is always better to have a valid will to ensure that one’s possessions are distributed in accordance with one’s wishes. It is also important to keep one’s will updated and include any new and relevant changes that may have an impact on one’s estate.

1 2005 (1) BCLR 1 (CC)

2 11 of 2009

3 Daniels v Campbell NO and Others. 2003 (3) All SA 139 (C)

4 Hassam v Jacobs NO and Others. 2009 (5) SA 572 (CC)

MAINTENANCE MATTERS.


– JD Robertson

Filing for a divorce is a daunting experience and strikes fear into most of us. Unfortunately life often throws us these curve-balls, leaving us with no choice but to catch! Luckily the South-African legislature has provided for a set of “gloves” to make catching a bit easier.

For a spouse to claim maintenance three considerations need to be addressed. Firstly, the ability of the person liable for payment is deliberated. Thereafter the court determines whether a true need for maintenance exists with the other party. Lastly, the amount which may be claimed must be determined.

Looking at other countries: England has a system by which maintenance is calculated as a portion, not representing more than 34% and no less than 14%, of the debtor’s income. South-Africa does not use the so-called portion system, but rather a rule of thumb, formulated by the courts. A young child is considered to require one part, whereas older children and the spouse make up two parts of the total maintenance due, respectively.

The first step to determine the need is to draft an income and expenditure statement for each of the parties. In cases where minor or dependent children have to be maintained by the divorcing parties it is impossible to calculate the monthly maintenance needs of the parties in isolation. Therefore one must include in the budget each party’s specific expenditure in respect of the children. For example, if the caregiving parent has four children, aged 4, 12, 18 and 22, who reside with him or her, the youngest child will be allocated 1/8 (one eighth) of such expenses and the older children and the parent 2/8 (two eighths) each.

Often the child would mainly reside with one of the parties. This party will, naturally, have a higher expenditure and thus a greater need for maintenance. As rule of thumb, all expenses incurred for the benefit of the child by the caregiving parent is shared by the parties in accordance with the part-system set out above.

Other specific individual expenses which cannot be apportioned between family members, such as school or university fees, the cost of extramural and/or recreational activities, club- and professional membership fees should be allocated in full to the relevant child or spouse.

Ultimately parties should engage in settlement negotiations, prior to seeking relief from courts. In instances where maintenance is payable for the caregiving of a child, said settlement has to be endorsed by the Family Advocate to ensure that the settlement is in the best interest of the child. The terms of a settlement agreement can be made an order of court, which will make enforcement thereof easier.

A last word of advice would be to ensure that the settlement agreement provides for annual adjustments of the amount due in accordance with the Consumer Price Index. Should this clause be omitted from the agreement the amount payable may in time become insufficient. An application to court to have maintenance increased is quite costly and lengthy and can effectively be avoided by simply providing for annual adjustments.

Sexual Harassment
Conquer your circumstances


– Jacques Brits

“No one can make you feel inferior without your consent.” ― Eleanor Roosevelt

What is Sexual Harassment?

The substantial effect of sexual harassment in the everyday life usually goes unnoticed due to the fact that no formal statistics of this specific issue are made public.

In terms of the Code of Good Practice on the Handling of Sexual Harassment, sexual harassment can be defined as “unwanted conduct of a sexual nature”. 1The legislator places great emphasis on the unwanted nature of the harassment, in order to remove any doubt relating to consent. The Protection of Harassment Act, 17 of 2011 elaborates on this by stating that sexual harassment is any conduct by the perpetrator in which said person knows or ought to have known that he / she is causing harm,2 or inspiring the belief that harm will be caused through the unwanted conduct. The aforementioned conduct includes, but is not limited to: watching, pursuing, accosting and loitering the complainant. Further prohibited conduct includes: sending, delivering or causing delivery of letters, facsimiles, and electronic mails as well as any verbal or electronic communication that may be conceived as being harmful.3

What to do if you are a victim of sexual harassment in the workplace?

Sexual harassment in the workplace is an extremely sensitive issue and victims rarely feel comfortable to approach the perpetrator or a superior to lay charges against the perpetrator. It is therefore wise to consult your company’s internal procedures relating to the reporting of sexual harassment procedures or to report the issue to the designated individual that handles the internal affairs of employees to make your concerns known.

It should however be noted that despite internal procedures and disciplinary action being available to you, nothing prohibits you as a victim to institute a civil claim or lay a criminal charge against the perpetrator. As a preventative measure, the law has been developed through the Protection of Harassment Act 17 of 2011 to ensure that early assistance and effective protection is readily available. The act makes provision for an application to be delivered to the clerk of the Magistrate’s Court in your district, who will as soon as possible refer the matter to a court.4 In cases of extreme urgency the court may hear the matter outside the normal court hours, if they believe that the person is already suffering harm or may suffer further harm if the issue is not rectified as soon as possible.5 Immediate relief in the form of an interim protection order may be granted by the court if the evidence at first sight leads to the reasonable belief that the perpetrator is causing harm to the complainant through his / her conduct6 The interim relief will however be subject to a return date, which gives the alleged perpetrator an opportunity to state reasons why it should not be made a permanent order of court.7

Judiciary development in regard to Sexual Harassment

In the matter of SA Metal Group (Pty) Ltd v CCMA and Others8 the Commissioner allocated to the dispute by the CCMA firstly came to the conclusion that no sexual harassment took place as the Complainant did not make her objection to the unwelcome verbal banter public in any way. The matter was subsequently referred to the Labour Court where the presiding Judge concluded that the conduct fell within the ambit of verbal sexual harassment as the banter contained “unwelcome innuendo, suggestions and hints”. In this case the Labour Court found that the dismissal of the perpetrator was substantively fair.

In Ntsabo v Real Security CC,9 the court had to decide whether the failure of an employer to act and therefore protect the employee from sexual harassment could lead to liability if said conduct led to the resignation of the employee. In this instance the Court concluded that the employer should be held accountable and it awarded twelve months’ remuneration to the employee. The maximum compensation of 24 months10 was found not to be applicable as sexual harassment could not fit into the criteria of automatic unfair dismissal which includes supported strikes, discrimination, pregnancy and so forth.11

In summary, there is recourse for victims of sexual harassment whether in the workplace or in your personal life. If you are a victim of sexual harassment, make an appointment with your attorney today.

1 Item 3(1) of the Code of Good Practice on the Handling of Sexual Harassment.

2 In terms of Section 1 of the Protection from Harassment Act 17 of 2011 harm can be defined as “any mental, psychological, physical and / or economic harm.”

3 Section 1 of the Protection from Harassment Act 17 of 2011.

4 Section 2(7) of the Protection from Harassment Act 17 of 2011.

5 Section 2(5) of the Protection from Harassment Act 17 of 2011.

6 Section 3(2) of the Protection from Harassment Act 17 of 2011.

7 Section 3(3)(c) of the Protection from Harassment Act 17 of 2011.

8 (C350/13) [2014] ZALCCT 68; (2014) 35 ILJ 2848 (LC) (15 April 2014)

9 (2003) 24 ILJ 2341 (LC).

10 Section 194 of the Labour Relations Act 66 of 1995.

11 Section 187 of the Labour Relations Act 66 of 1995 read together with judgement of Ntsabo v Real Security CC 2003 4 ILJ 2341 (LC)

AUGUST newsletter-02

This newsletter 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.

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