Zinta Heunis

You recently got divorced and you agreed to pay your ex-wife’s spousal maintenance for a couple of years. Your children tell you that their mom has a new boyfriend and the relationship looks serious.

The question you now ask yourself is probably, “should I continue to pay spousal maintenance?”

The answer depends on many factors, each unique to its own set of circumstances and as such, it is advisable that you seek assistance from an attorney to discuss a possible way forward. However, this article may deem as a good starting point for you to understand your rights and to determine a possible way forward.

In terms of the dum casta principle you can argue that your ex-wife waived her right to spousal maintenance the moment she abandoned a chaste lifestyle. The principle, however, should have been explicitly stated in the divorce settlement agreement. (It is important to note that there is no implied requirement that your ex-wife must lead a chaste lifestyle.[1] )

In the event that the dum casta principle was not explicitly included in your divorce settlement agreement, you could rely on concubinage. What does concubinage mean? Well, it is based on the idea that your ex-wife is receiving money from another “source”.

“Source” does not relate to income derived from work. It would be wrong to assume that you may stop paying spousal maintenance if your ex-wife starts earning an income.[2]

To prove concubinage you must prove that your ex-wife and her new boyfriend are:

  • permanently living together
  • under one roof,
  • engaged in an intimate or sexual relationship and
  • that both parties are contributing to the joint household.[3]

In order to establish whether the relationship is permanent in nature, it should be clear to an outside person that the parties intended to enter into a relationship for an indefinite period of time, and that such intention was clear from the beginning of the relationship.[4]

Lastly you must have sufficient reason to suspend your spousal maintenance obligation towards your ex-wife. You are obliged, as far as your capacity allows you to, to pay the spousal maintenance that you agreed on (and is bound to) in terms of the settlement agreement.[5] Sufficient reasons will depend on your actions, your age, your health and your capacity or means to pay spousal maintenance.[6]

Always be honest with the court regarding the above, we don’t want a contempt of court situation on our hands. Should you need assistance, arrange a consultation today to ensure that your rights are protected.

  • [1] Watson v Watson 1959 1 SA 185 (N).
  • [2] Hancock v Hancock 1957 2 SA 500 (C).
  • [3] Drummond v Drummond 1979 1 SA 161 (A).
  • [4] Owen-Smith Supra 167.
  • [5] Pieterse v Pieterse 1965 (4) SA 344 (T).
  • [6] Hancock v Hancock 1957 2 SA 500(C).


Mea Malan

Can one safely say that possession is nine-tenths of the law? The two concepts of possession and ownership are entirely different in our law. Just because you are the owner of property does not automatically mean that you are entitled to the possession thereof.

The mandament van spolie remedy, which is usually dealt with on an urgent basis in the form of an urgent application, is an ancient remedy aimed at restoring control or possession of property to the applicant from whom it was taken through unlawful self-help and without investigating the merits of the parties’ rights to control the property.

This remedy focuses on protecting possession and does not consider ownership of the property. For this reason it is usually said that this remedy is based upon the principle that nobody is allowed to take the law into his / her own hands. Our courts frown upon people taking the law into their own hands and acting against another person’s wishes without a court order or authorising legislation.

This remedy is in other words is not used to protect rights at all, but rather to restore possession of property and also to restore peace and order. Any form of self-help is therefore discouraged by the mandament. The remedy does not investigate any merits of any of the interested parties, the court will simply be concerned by the factual position – whether there is proof of existing control and proof of unlawful spoliation of that control.

After a factual investigation of the position a court will order the spoliator to restore the spoliated control to the successful applicant immediately, regardless of the lawfulness of the control.

In basic terms, the two requirements for an applicant to be successful with this remedy were set out in Yeko v Qana 1973 (A):

  1. Showing actual dispossession, and
  2. That the dispossession was unlawful (i.e. it was not done with consent, a court order or legislation which authorised it).

Possession is in other words nine-tenths of the law and spoliation is not permitted in our law.


Tjaart de Beer

So much has been written about shares and companies, but what about a member’s interest held in a close corporation (“CC”)?

As from the inception of the New Companies Act No. 71 of 2008 (“the Act”) on 1 April 2011, CC’s are no longer available for incorporation. The Act also only allows companies falling within the categories listed in section 8 of the Act to be incorporated

So, what about CC’s? Are they to be forgotten?
No, luckily those still in business may continue to do business and may be sold. The Close Corporations Act, 1984 remains applicable and must be read in conjunction with the Act in those areas where applicable.

CC’s operates differently to companies whereby the party who receives member’s interest is the same party responsible for the management of the CC, whereas in a company one can have shareholders and different parties forming a board of directors responsible for the management of the company.

As time goes by and opportunities arise, there might also be a need to restructure the current arrangement of a company or CC to make the most of this opportunity, but like always, the South African Revenue Service (“SARS”) would like its cut. This cut can be quite substantial depending on the opportunity, so, in accordance with sections 41 to 47 of the Income Tax Act No. 58 of 1962 (“the Tax Act”), as amended from time to time, special provision is made for clever restructuring through rules (“the Rules”) relating to company formations, share-for-share transactions, amalgamation transactions, intra-group transactions, unbundling transactions and liquidation distributions.

More specifically, and more common is the application of section 42 of the Tax Act which provides for some tax-free rollover relief by deferring the securities transfer tax implications for at least 18 months but only if the provisions are adhered to. A failure to adhere to the provisions will trigger certain anti-avoidance provisions in the event that the company that acquired the assets, disposes of the assets within 18 months of acquisition[1].

In another instance, a Section 42 Asset-for-Share transaction entails the transfer or disposal of an asset for an amount equal in its value to acquire equity shares in that company. Caution must be taken however as this type of transaction requires the detailed attention and high-level input from both a corporate or commercial attorney and an accountant or auditor.

A question begging to be answered is, whether the Rules are applicable to a CC and its members’ interest when it comes to restructuring? Section 41 of the Tax Act defines a member’s interest to be interpreted as one would interpret a share in relation to a company:
‘equity share’ in relation to a company, means a share or part thereof in the equity share capital of that company or a member’s interest in a company which is a close corporation;

Even though the more common type of entity is a company and most, if not all, legislation refers to “companies” and “shares”, rather than a “CC” and “member’s interest”, the detail lies in the definitions to determine its applicability. Therefore, the Rules of restructuring are applicable to CC’s.

As mentioned, an accountant or auditor must be consulted too as SARS has to be approached to deliver a ruling on the particular matter, granting the appropriate relief in accordance with the Tax Act. This can be done based on the documentation drafted by a corporate or commercial attorney setting the transaction and restructuring structure out in detail.

  • [1] https://www.thesait.org.za/news/383286/Consecutive-asset-for-share-transactions.htm. Dated visited: 21 November 2018 at 09:38.

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.