• Property Purchase vs Marital Regime
• Promotion of Access to Information Act - How does it affect you and your business?
• Road Accident Fund - Motor Vehicle Accidents

Married couples or couples about to be married would be well advised to seriously consider the structure of any property purchase transaction with due regard to the matrimonial property regime governing their marriage or the intended matrimonial property regime in the case of couples about to be married.

Generally speaking there are four marital regimes governing marriages between parties in South Africa, viz.

1. Marriages in community of property;
2. Marriages out of community of property entered into before 1 November 1984;
3. Marriages out of community of property entered into after 1 November 1984 where the accrual system introduced under the Matrimonial Property Act has been specifically excluded; and
4. Marriages out of community of property entered into after 1 November 1984 where the accrual system applies.

Each of the above marital systems have their own pros and cons and are of consequence not only between spouses upon death or divorce, but are of importance to the extent that they affect the rights and obligations of the spouses to third parties.

For example should parties married in community of property choose to purchase a property, such property would be registered in both spouses names and at risk should a creditor of either spouse institute legal action for whatsoever reason. The creditor would be at liberty to execute against assets of the joint estate of the parties.

A popular method to avoid the above consequence is the registration of the property in a trust, however where transfer duty is payable, this would lead to increased costs to the extent that transfer duty payable by a trust is calculated at 10% of the purchase price which is higher than the rate applicable to natural persons. A further factor to be taken into account when considering the registration of property into a trust, is Capital Gains Tax which too is calculated at a higher rate for trusts than in the case of natural persons.

In the case of a marriage out of community of property, each spouse would be responsible for his or her own liabilities affording them the opportunity of registering property in the name of the spouse least likely to be at risk from creditors.

The choice as to which spouse should be selected as purchaser is, however not simple and would need to be carefully considered with due regard to the parties marital system.

Should for example a spouse, married out of community of property after 1 November 1984 and excluding the accrual system, purchase a property and thereafter divorce, the other party would not be entitled to a claim against the property by virtue of any contributions made to the extent that Section 7(3) of the Divorce Act would not be applicable. A specific agreement creating an entitlement for the recovery of contributions would need to be considered to protect the spouse not owning the property.

Further factors which may influence the choice of purchaser are :-

1. whether any financial institution in whose favour a bond is to be registered would require both parties to bind themselves as mortgagors where for example the joint earning capacity of the spouses has been considered when granting the bond. This situation could, however be circumvented for the sake of protecting the family home against creditors by registering the property in the name of the party with the least risk and binding the other party as surety to the financial institution and

2. whether either party is entitled to a subsidy, in which event one normally finds a pre-emptive requirement for entitlement to such subsidy that such party be a registered owner.

Whilst the above is not by any means an exhaustive analysis of how any intended transaction should be entered into, we hope that it would illustrate the importance of making an informed decision.

Promotion of Access to Information Act - How does it affect you and your business?

All businesses must comply, before 28 February 2003, with the Promotion of Access to Information Act 2 of 2000 (Proatia) - do you? Do not be caught unaware of this Act and its compliance requirements.

What is Proatia?

The Promotion of Access to Information Act 2 of 2000 gives effect to the Constitutional right of access to information held by both public and private bodies, including obviously all businesses. In effect this allows every South African access to information held by any public or private body. The Act sets out how and what information may be requested from a business and also what businesses need to do to comply with the Act.

What are the implications?

In terms of Proatia all businesses are required to provide certain classes of information to the public or Government agencies where this is requested. For example, an employee could ask for information relating to the salaries of other employees or even the business owners/directors.

In terms of Proatia every business is required to draft a Manual in a prescribed form and same must be made available to the public on request. These Manuals must be completed by 28 February 2003.

What happens if a business does not comply?

Certain acts have been criminalized in terms of the Act. Other consequences are that the Human Rights Commission can publish a list of businesses that do not comply and it is thereafter possible that this could seriously impact on contracts / work that a business receives. Particularly Government Departments will not be contracting with non-compliant businesses. Private business will probably follow the same route as it will be safer to do business with a business that is Proatia compliant than one that is not. Are the risks of non-compliance worth it?

Individuals seeking information under this Act could also force a business to provide this information by bringing costly High Court Applications, the costly part being for the non-complying business.

What must be addressed in the business Manual?

The Act contains a lengthy list of information to be included in this Manual including, for example, the following:

Contact details, postal addresses, telephone and telefax numbers, e-mail addresses and the details of the person responsible for the Proatia compliance;

• A list of all employees and other personnel who are authorized to bind the business to agreements;

• A list of incorporation documents, such as constitutions, members agreements, articles of association;

• A list of the employees and their salaries, together with banking details;

• The names and salaries of directors/members;

• Information pertaining to legal proceedings involving the business;

The manner in which a request for information from the business should be submitted.

What does one have to do with the completed Manual?

Proatia Manuals must be :

• Available to the public free of charge at your business Head Office during business hours;

• Lodged with the Human Rights Commission and Department of Justice;

• Be placed on the website of the business;

• Be published in the Government Gazette.

VERY IMPORTANT : Is Proatia applicable to you?

Most definitely YES. This Act is applicable to both private and public bodies and as private bodies are widely defined in the Act it is safe to say that it will include all businesses from the one-man-show, example, the green grocer on the corner, to massive Companies and Close Corporations.

DO NOT BE CAUGHT UNAWARE / UNPREPARED.
REMEMBER YOU ONLY HAVE UNTIL 28 FEBRUARY 2003 TO COMPLY.

DO NOT WAIT UNTIL FACED WITH A COSTLY HIGH COURT APPLICATION BEFORE COMPLYING

DO NOT WAIT TILL YOU HAVE LOST BUSINESS BEFORE COMPLYING. RESPOND NOW.

Frequently asked questions relating to Proatia Manual :

• How does Proatia affect my business?

• Who may obtain access to records held by my business?

• Can a Government agency request access to records held by my business?

• What constitutes a record and what may be requested?

• What about trade secrets and/or other confidential information?

• What about the disclosure of financial information?

• Can I charge a fee for the cost of reproduction and the time spent in providing the information requested?

• How is the information requested?

• Are there standard forms?

• What happens when the record cannot be found?

• Can disclosure of certain information be refused?

• Can we be forced by the High Court to provide information?

What do you do if you require more information relating to this Act and the Manual ?

• E-mail your queries to law@mcwilliams.co.za;

• Telefax your queries for attention of Curt Coetzee of McWilliams & Elliott Inc. Fax 041 582 1274;

• Mail your queries to McWilliams & Elliott Inc., Attention Curt Coetzee at P O Box 45, Port Elizabeth, 6000;

• Telephone with queries and ask for Curt Coetzee at
  Telephone : 041 582 1250.

More about McWilliams & Elliott Inc.

McWilliams & Elliott Inc., Attorneys, Notaries and Conveyancers, is a law firm based in Port Elizabeth and is the oldest legal practice in the district, having been established in 1853. McWilliams & Elliott Inc. is a dynamic client focused law firm that provides legal services in nearly every area of the law to business, organizations, Government entities and individuals. We, at McWilliams & Elliott, strive to provide the highest quality legal service to our clients and take pride in abiding by the strict ethical codes of our profession. Please feel free to browse around our website for further information. 

Questions? Comments? Ideas? Opinions?

I am always happy to hear from you and you can reach me as follows:

CURT COETZEE:

• Email : curt@mcwilliams.co.za;

• Telephone : 041 582 1250;

• Mobile : 082 659 2853;

• Telefax : 041 582 1274;

• P O Box 45, Port Elizabeth, 6000;

• 83 Parliament Street, Central, Port Elizabeth.

ROAD ACCIDENT FUND - MOTOR VEHICLE ACCIDENTS

What is the Road Accident Fund?

It is a public entity which has been set up to pay compensation to people injured in road accidents or the dependants of people killed in road accidents from the negligent driving of a motor vehicle in South Africa.

Where does the Fund get its money from?

The Fund gets its money from a fuel levy included in the price of petrol and diesel which is paid by drivers of motor vehicles.

Time period to make a claim

If the identity of the offending driver or owner is known, the claim must be lodged within three years from the date on which the claim arose. (This does not apply to a claim of a minor.) If the identity of the offending driver or owner is unknown, the claim must be lodged within two years from the date on which the claim arose.

Who is entitled to make a claim?

1. A person who was personally injured (except a driver who was the sole cause of the accident;

2. A dependent of a deceased victim.

3. A close relative of the deceased in respect of funeral expenses.

4. A claimant under the age of 21 years must be assisted by a parent or legal guardian.

What can you claim for?

1. Medical expenses (past and future);

2. Funeral expenses;

3. Loss of earnings or income if person is disabled (past and future);

4. Loss of support for a dependent of a deceased victim (past and future);

5. General damages for pain, suffering and disfigurement in the case of bodily injury.

(Note : This is determined after examining the extent and severity of the injury.)

What is the claims procedure?

The claim is lodged on a prescribed statutory claim form (Form 1) which provides basic information on the claimant, the vehicles and parties involved in the collision, the date and place of accident and the amounts claimed. It also contains a medical report by the treating doctor. This claim form is accompanied by an affidavit setting out the full particulars of the accident, statements of witnesses, police reports, hospital and medical records, as well as vouchers and documents in support of the amounts claimed. This claim form and the accompanying documents must be hand delivered or sent by registered mail to the Fund.

Once a claim is submitted, the RAF registers it on its claim system and commences with its investigations. The RAF determines whether the claim is valid (i.e. was there a road accident, does it comply with statutory provisions, was it submitted in time, etc.) and what the merits of the case are (i.e. the degree of fault, blame or negligence to be ascribed to the drivers of the vehicles and the claimant respectively). The quantum is also determined (i.e. the amount of the damages or losses suffered).

If a claim is incomplete, the RAF calls for additional information and supporting documentation to enable it to better assess the matter.

Important considerations:

1. Property damage cannot be claimed from the Fund, it may be claimed from the offending driver;

2. An accident must be reported to the police and the Fund by the driver/owner;

3. Compensation will be reduced in relation to claimant's own negligence;

4. Compensation for a passenger in the offending vehicle is limited to
   R25 000.00;

5. Compensation received from the Compensation Commissioner in a case where a person is injured on duty, is deductible;

6. The Fund may require a person to submit to investigations and medical examinations;

7. A claim may be excluded in a case where a claimant unreasonably refuses or fails to co-operate with the Fund in the course of its investigations;

There are certain categories of claims that the Road Accident Fund excludes.

WHAT TO DO AT ACCIDENT SCENE

Record the following details:

• Full names, ID numbers, addresses (work and home), telephone numbers (home and work) and vehicle registration numbers of all drivers, passengers and witnesses;

• Descriptions of vehicles and drivers;

• Details of police, traffic and ambulance officials;

• Details of tow truck personnel;

• Attempt to indicate vehicles' static positions with road markings (chalk, spraypaint, etc.).

Steps to take subsequent to accident:

• Report accident to SAPS immediately;

• Report accident to RAF;

• If matter is not being investigated by SAPS, attempt to obtain statements from witnesses a.s.a.p.

• Attempt to take photographs of accident scene as scene may change;

• Attempt to take photographs of the damage to the vehicles and of injuries, e.g. abrasions, sever bruising, cosmetic disfigurement;

• Draw sketch plan of scene and make sure that it contains a fixed point so that it can easily be traced;

• Make sure that the treating doctor records the visits or gives a detailed account including treatment - especially where treatment is not given by the injured's normal doctor.

Documents to retain or obtain subsequent to accident:

• SAPS collision report (SAP 352) or Officer's Accident Report (OAR);

• Witness statements taken by SAPS;

• Hospital, medical and/or clinical records;

• Details of medical institutions and medical practitioners;

• All hospital and medical accounts;

• Details of material damages claim and the outcome thereof.

CURT COETZEE

McWilliams & Elliott Inc
curt@mcwilliams.co.za
0826592853
041 5821250

Reference source : www.raf.co.za

Legal Disclaimer:
This information is not intended for use without professional advice.

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