EXPLORING A POTENTIAL PROPERTY 


Purchasing a home is one of the biggest decisions most people will make in their lives. It makes sense then that this endeavour should be approached with diligent consideration and care. While the necessary assistance of professionals, who will help you make the best decisions along the way, is highly advisable for this journey, there are a few tell-tale signs you can spot yourself that will help you identify whether a property deserves another moment’s consideration.

Once a house become a showhouse, a magical veil is drawn over a mundane property that allows it to appear like a home right out of a movie or magazine. It’s undeniable that first impressions leave lasting impressions, which is exactly why homeowners may try to cover up any defaults by dazzling you before you find out something is amiss. It is important to not let first impressions affect your judgement. Because of this, it is vital that you investigate thoroughly.

If you are serious as a buyer, and the seller is serious about selling, the seller should not have a problem with allowing you free reign through the property (even if it is supervised by them). Like a real estate Indiana Jones, you should explore every inch of the property. Open doors, flush toilets, test the taps, flip every switch you can find, jump on the floors (especially upstairs) – go all out.

During this exploration, it’s important to pay attention to cracks, even minor ones, and doors that struggle to close. These occurrences may indicate foundational problems. When you find either of these, it is best to have a structural survey completed beforehand. You should also pay attention to any fresh coats of paint, especially when found in selected patches. If an entire room has been repainted, it is advisable to enquire as to the reason for the repaint, but when a patch of paint is visible it usually indicates an area where damage has been patched up. Getting to the bottom of such damages is important.

As you travel from room to room, it is also good to get a feel of the climate within the house. You shouldn’t have to imagine what a room would feel like once you have a new air-conditioning or heating system installed. If the house’s interior temperatures are not accommodating, you need to consider to what extent this will influence you.

Once you’ve done the rounds inside, remember to take a tour of the exterior as well. It’s a given that you should inspect the condition of the yard and the roof, but you should also ascertain the state of the neighbours’ properties where possible. This will not only help you get a feel of property itself, but also of the community that will ultimately affect your living experience and the value of your property.

All of that said, it is also important to be able to see beyond minor shortcomings and the current state of things. An unkempt yard, unvarnished kitchen counters, clutter throughout the house – these are all factors that can be given the necessary attention in time. When you tour a property, it is important to envision your home, as you would want it. While there are various deal-breakers, especially when it comes to structural security, there are also many shortcomings that may make a bad first impression that should not inhibit you from seeing the potential of the property.
Go in with a plan. Ask questions. Demand answers. It’s your future home – it’s worth the trouble.

THE FULL ACCRUAL OF AN ESTATE DURING A DIVORCE 


In the case of CM v EM it was held in the Supreme Court of Appeal of South Africa (“SCA”), case number 10861/2018, that:

“The value of the Respondent’s right to future annuity payments in respect of Personal Portfolio Living Annuities (“the living annuities”) from Glacier Financial Solutions (Pty) Ltd, a member of the Sanlam Group, is an asset in his estate for purposes of calculating the accrual of his estate”.

Prior to the judgement, a party to a divorce held no claim in regard to the other party’s living annuities.

The court, in reaching its decision, referred to the case of De Kock v Jackson and another 1999 (4) SA 346, where it was concluded that there was no logical or legal reason why both the cash component and the accrued right to the pension should not form part of the community of property existing between the parties prior to the divorce.

The court’s reasoning behind the decision was that the Respondent in this matter had a clear right to the investment returns yielded by his capital reinvestment with Sanlam, in the form of future annuity income which he draws from the agreement. The court, therefore, found that such annuity income is an asset which can be calculated for purposes of determining the accrual.

The brief background to the matter was the following: The parties married in December 1999, out of community of property and subject to the accrual system as defined in the Matrimonial Property Act 88 of 1984. In July 2008, the Respondent used a portion of his pension benefit, which arose from his employment, to purchase a Personal Living Portfolio Living Annuity from Glacier Financial Solutions. In March 2017, he used the remainder of the proceeds of his pension benefit to make another purchase with Glacier.

In all future divorce proceedings, in the absence of an agreement between the parties, an expert will have to be appointed to determine the value of a party’s right to receive future payments in respect of the living annuities. The SCA has not provided a guideline as to how the calculation should be done and this could lead to further litigation, as currently, an annuitant may elect to drawdown at any rate between 2.5 or 17.5 per cent per annum.

Should there not be a history of contested percentages drawdown over a period of time, I am of the opinion that an average percentage of plus-minus 8 per cent will be used to determine the value of future payments.

Reference List:

  • CM v EM (1086/2018) [2020] ZASCA 48.

TYING THE KNOT, NO MATTER YOUR BELIEFS 


Post-1994, the lawmakers in South Africa have attempted to be inclusive of religion and gender, by passing the Recognition of Customary Marriages Act 120 of 1998, allowing for the registration of marriages under African customary law as well as the Civil Union Act, 2006, for the solemnisation of a civil partnership between two people regardless of gender.

Albeit, there are currently three different types of Acts that govern marriages in South Africa, the Marriage Act 25 of 1961, the Recognition of Customary Marriages Act, 1998 and the Civil Union Act 17 of 2006, there are still inequalities in these Acts, as Hindu, Muslim and Jewish marriages are still not legally recognised. The fact that these religious marriages are not legally recognised is tantamount to saying that these marriages are inferior, which infringes on one’s rights to dignity, religion, and equality. The fact that Hindu, Muslim, and Jewish marriages are in the minority, does not make it right not to recognise the marriages legally, as the obstacles arise when the husband and wife want to divorce or to benefit from upon death of the husband. In a typical Muslim marriage, when the parties divorce, the wife has no right to her share in her husband’s estate, she has no legal protection in the South African law and may be left impoverished with no money to look after herself and/or the children born of the marriage. The wife is excluded from sharing in benefits such as pension, maintenance and rights to claim the marital home.

With the above at the forefront and recognising South Africa has a diverse population, that it is not possible to have laws governing every single religion, the Minister of the Department of Home Affairs is in the process of developing a new policy which will close the gaps of inequalities in the current Marriage Acts and have all-encompassing single legislation.

This new single legislation is aimed at South Africans of different sexual orientation, religious and cultural affiliations to conclude legal marriages and to be treated equally and to be given the due respect regardless of religion, customary, gender beliefs, aligned with Section 15 of the Constitution. It will further address and introduce stringent rules around the age of marriage including the alignment of the age of majority in the marriage legislation to the Children’s Act. It will align the marriage, matrimonial property, and divorce legislation to address matrimonial property and intestate succession matters in the event of the marriage dissolution. It will deal with the union and registration of marriages that involve foreign nationals and customary marriages that involve non-citizens, in particular citizens of our neighbouring countries.

Our country is twenty-six years post-apartheid, we are in the twenty-first century, we have a progressive Constitution, new generations are being born, the fourth industrial revolution is upon us and yet some of our laws are stuck in the apartheid era. Women regardless of their religion, race and beliefs are crying out to be heard and to be recognised as equals.
The new proposed Bill is to be submitted to cabinet in March 2021.

Reference List:

  • Marriage Act 25 of 1961
  • Recognition of Customary Marriages Act 120 of 1998
  • Civil Union Act 17 of 2006
  • Children’s Act 38 of 2005

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.

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