Trust

Trust

“My wife and I are discussing providing for the creation of a testamentary trust in our will to take care of our minor children upon our untimely death. I’m worried though that if we establish a trust, it may be too rigid to deal with the changing circumstances of our children. Can the trust be changed after our death should it be necessary to do so?”

A testamentary trust or trust mortis causa is established in a will and comes into effect upon the death of the testator (founder) of the will. Such trusts are typically used to protect the interests of minors or dependants who are unable to take care of themselves. Some or all of the assets in the estate are upon the death of the testator moved to the trust which is administered by trustees on behalf of the beneficiaries. A testamentary trust often terminates at a pre-determined time or event, for example when the beneficiaries reach a certain age.

As a rule of thumb the terms of a testamentary trust cannot be amended. The Trust Property Control Act 57 of 1988 (“the Act”) does grant our Courts the power to amend a trust deed, where for example a provision brings about consequences which in the opinion of the court, the founder of a trust did not contemplate or foresee and which hampers the achievement of the object of the founder, prejudices the interest of the beneficiaries or is in conflict with the public interest.

Accordingly, in a recent High Court decision, it was found that a variation of the provisions of a testamentary trust (brought about by agreement between the trustee and the beneficiaries) was valid. Despite the fact that a trust is of testamentary origin, it does not prevent the trustees and beneficiaries from agreeing to an amendment. The court further stated that if the testamentary trust also confers on a trustee the power to decide when to terminate the trust, it also implies that the trustee has the power to amend the trust deed.

The provisions of the Act which requires a trustee to, in exercising his powers, act with the care, diligence and skill which can reasonably be expected of a person who manages the affairs of another, still applies, and should a trustee decide to amend the provisions of the trust, the trustee will need to exercise his authority in accordance with the Act.

It is therefore possible that your trust provisions may be varied after your death. We would advise to enlist the help of your estate planner to ensure that your testamentary trust provisions are appropriately wide to provide sufficient scope to the trustees to manage (and if necessary amend) the trust in changing circumstances in a manner that is acceptable to you.

Bitcoin

Bitcoin

What happens to my Bitcoins when I die?
08 March 2018
 
“I’ve started buying Bitcoins as a form of investment. I am aware that is a virtual currency and that different rules apply to Bitcoins. But I’m know starting to wonder how I can ensure that I transfer my Bitcoins to my heirs when I die?”

Bitcoin is essentially a digital payment network where Bitcoin currency is stored and transferred. A Bitcoin is a form of digital token that you can send or receive electronically, but is does not come in set amounts like a physical currency does, and can be divided up to 8 decimal places, meaning that the smallest amount you can send is 0.00000001 Bitcoins. The value of a Bitcoin also changes in much the same way that the value of stocks change based on bidding.

Bitcoins are protected by powerful cryptography which makes it a secure way to store your wealth, but it also creates the risk that when you die, it will be out of reach for your heirs.

Bitcoins are stored in a virtual wallet which uses a string of random characters called a “public key”. The public key is visible to anyone as an address for sending and receiving the cryptocurrency. A separate “private key” however allows the owner access to the wallet’s contents. This means that when you die, your heirs may discover your Bitcoin wallet, but will be unable to gain access thereto without the private key.

The easiest way to ensure that your Bitcoins can be transferred to your heirs is to ensure that someone has a copy of the private key by writing it down, storing it on a memory drive or entrusting it with a company or a trusted financial advisor or attorney who can give it to your family after your death.

It is also a good idea to bequeath your Bitcoins formally in your will and identify who has a copy of the private key. Although it won’t form part of the physical assets of your estate to be administered, this will help ensure that there is no uncertainty as to whom you wanted to gain access to your wallet after your death.

I would suggest discussing your Bitcoin portfolio with your estate planner with a view to formally providing therefore in your will.

 

Lapsed firearm licence

Lapsed firearm licence
 

“I own a firearm which has always been validly licenced. I was out of the country for a few months with work this year and was unable to renew my licence before its expiry in June. On my return I went to the police, but they told me that because my licence was not timeously renewed it was now invalid and that my possession of the firearm is now illegal. Is this the case? Surely I have a valid excuse for not having renewed my licence?”

Renewal of firearm licences is governed by section 24 of the Firearms Control Act 60 of 2000 (“the Act”), which stipulates that the holder of a firearm licence who wishes to renew his licence must apply to the Registrar of Firearms (“the Registrar”) at least 90 days before the expiry date. In a recent High Court judgment, the constitutionality of section 24 and section 28 dealing with the termination of a firearm licence, was questioned.

It was contended in court that these sections caused confusion for firearm owners in respect of their obligations under the Act, in that if a person has not applied for renewal of his firearm licence and the 90 day period has lapsed, there is no way that he could renew or apply to renew his firearm licence and was therefore in unlawful possession of the firearm with no means to rectify the situation. Additionally, although section 28 of the Act provides for amongst others, procedures for the cancellation of a firearm licence and a declaration by the Registrar or a Court that a firearm holder is unfit to possess a licence, the section does not provide any process which ought to be followed by firearm owners whose licences have terminated due to effluxion of time, nor does it provide clarity as to how and where to surrender their firearm, should their licence be invalid due to such expiry.

Likewise, a person who has been declared unfit to possess a firearm is required to be given 30 days’ notice in writing of such declaration and intention to invalidate their firearm licence and is permitted to provide reasons why their licence should not be invalidated. There is no similar provision in the Act for a firearm licence holder whose licence has terminated due to effluxion of time, despite the fact that valid reasons could exist for the failure to renew the licence.

In the absence of proper procedures for the renewal of firearm licences, the court declared sections 24 and 28 unconstitutional and ordered that the Act be amended by Parliament within 18 months to address this aspect. In the interim the Court held that all firearms issued in terms of the Act, which are or were due to be renewed, shall be deemed to be valid. This order is at present suspended pending confirmation by the Constitutional Court on the constitutionality of the particular sections.

Against this background it means that there is a good chance that the expiry of your licence may not be valid and we would recommend that you ask your attorney for assistance with formulating the necessary correspondence to the Registrar explaining your reasons for not having renewed your licence in light of the High Court decision.

George Kleynhans

http://www.attorneys24.net                       http://www.ilaw.co.za                         

http://www.attorneys.web.za               http://www.attorney.net.za

 

water meter

water meter
Who must prove that the water meter is not working?
16 November 2017
 
“I’ve really tried to cut down on my water consumption and over the last year it‘s been very low. However, over the past 3 months my municipal water accounts suddenly more than tripled. Knowing this cannot be right I queried my accounts with the municipality. They said the consumption was correct according to my water meter and I must pay or my water would be cut off. The only explanation I have is that the water meter is not working correctly. But whose responsibility is it to verify this?”

Our courts recently had to address a similar set of facts in the case of Euphorbia (Pty) Ltd t/a Gallagher Estates v City of Johannesburg. In this case, the applicant (Gallagher Estates) was sued by the municipality for several million rand which the municipality alleged was owed to it as a result of water and sewage charges due and payable by Gallagher Estates to the municipality. Gallagher Estate’s response was that the charges that the municipality was seeking to recover were based on a faulty water meter and accordingly that these amounts were not lawfully owing.

One of the issues before the court was whether the duty of proving that the consumer was incorrectly billed lies on the consumer or whether proving that the consumer was correctly billed lies on the municipality.

In the case it was found that Gallagher Estates was legally not allowed to remove and test the meter because the legal entitlement was reserved for the municipality. Accordingly, because the applicant was not in the possession of all the information that it needed to prove that the meter was not functioning properly due to the fact that only the municipality was legally entitled to remove and test the meter, it would be unfair in law to burden the applicant with the responsibility of proving that the meter was not functioning as it would be much easier for the municipality to prove that the meter was working than for the consumer to prove that it was not.

From this case it can be deduced that in metering disputes with a municipality it is not the consumer’s responsibility to prove that the charges billed are wrong or based on a non-functioning meter. It is rather the municipality’s responsibility to first prove that the charges are correct and based on a functioning meter. If a consumer disputes the alleged consumption and lodges a query, the burden then rests on the municipality to investigate the issue, and the meter, if necessary to confirm whether the alleged amounts billed are correct.

In your case, we would advise lodging a formal query with the municipality to investigate the meter, and should the municipality not adhere to the request to through your attorney inform the municipality of their responsibility to do so as stipulated in the above case.

Private prosecution

Andre & Elmarie Brits
Private prosecution
What to do to privately prosecute?

” In 1998 I suffered the loss of my father and farm”

A good example of the charge sheet:

IN THE HIGH COURT OF SOUTH AFRICA LIMPOPO DIVISION, POLOKWANE CASE NO :

IN THE MATTER BETWEEN :

THE STATE

VERSUS

ANDRE BRITS

ELMARIE (KLEYNHANS) BRITS

RITA (RUST) KLEYNHANS

 

PRIVATE PROSECUTION CHARGE SHEET

COUNT 1 MURDER IN THAT ON OR ABOUT 30 MAY 1998 AT OR NEAR ALLDAYS IN THE DISTRICT OF ZOUTPANSBERG The accused did wrongfully, unlawfully and with the intention to kill, caused the death of HENDRIK TERBLANS KLEYNHANS by suffication, removing the supply of oxygen to the deceased.

COUNT 2 THEFT IN THAT ON OR ABOUT 30 MAY 1998 AT OR NEAR ALLDAYS IN THE DISTRICT OF ZOUTPANSBERG The accused did wrongfully and unlawfully steal 200 (two hundred) shares in the
company Alldays Escape (pty) Ltd. with the intention to deprive the owner, George Kleynhans, of his farm Campfornis.

 

“In 2016 my son was assaulted in ‘n bar, however the state decided not to prosecute the particular person. Lately I’ve heard a lot in the news about private prosecution. How does it work?” While a large percentage of the South African public
only recently heard of private prosecution, it is not a new concept, and has been in existence for almost a century, even though it is seldom used. In terms of Section 7 of the Criminal Procedure Act a private person may prosecute another person privately
should the Director of Public Prosecutions/National Prosecution Authority decide not to prosecute. Should such a decision be taken, a nolle prosequi certificate will be issued. This certificate is then valid for three months, which means that
a person considering private prosecution has to take the necessary legal steps within three months from date of issue. A person considering private prosecution must also note that he/she should have an essential and particular interest in the case,
and that he/she must have suffered personal damages as a result of the alleged offence. Private prosecution also makes provision for spouses to institute such prosecution on behalf of each other, as well as for parents to act on behalf of their children
and guardians on behalf of minors. Two or more persons may however not institute private prosecution under the same charge, unless both parties suffered damages due to the same alleged offence. Furthermore private prosecution must be instituted in the
name of the private prosecutor, and the process documents issued in the name of, and at the expense of, the private prosecutor. As with civil cases, a private prosecution is also reported in the name of the parties involved, for example Van Rensburg
v Francisco. A person being privately prosecuted may however not be arrested for the relevant charge, but may only be summoned to appear before the court. Furthermore he/she enjoys the same rights as an accused being prosecuted by the state. The attorney
general kan also intervene at any time and take over the prosecution, and then all proceedings in the private prosecution has to be stopped. Before a person may be privately prosecuted, the private prosecutor has to pay in an amount at the Magistrates
Court in which jurisdiction the crime had been committed. This payment serves as security and is determined by the Minister of Justice. Currently this amount is R2500, but it can be amended from time to time, with the particular court also by rights
to determine a different amount. This amount can be forfeited should the private prosecutor fail to pursue the private prosecution against an accused to its end, or where he/she fails to show up. If the private prosecutor fails to without a valid reason
show up for the trial, the charge against the accused will be dismissed and may he/she not be privately prosecuted again for the same offence. The attorney general may however prosecute the accused for that charge. If the accused pleads guilty on the
day of the trial, the National Prosecuting Authority will take over and prosecute further. Private prosecution is a time consuming and expensive process, but if a person is certain that justice has not been done, there is always the option to follow
this route. Should you consider it, it’s advisable to consult a criminal law specialist to determine the merits of private prosecution in your case.

 

Expropiation of land

The ANC national conference decided its National Executive Committee (NEC) would start the process towards a constitutional amendment of Section 25, or the Constitution’s property clause, to make possible land redistribution without compensation. There is a carefully phrased and potentially crucial rider: a sustainability test to ensure such redistribution does not negatively impact on the agriculture, food security or other sectors such as financial services, which hold around 70% of commercial farmers’ debt.

This will be a painfull loss to the unfortunate owners of land.

I have empathy with the majority decision, however I had the personal experience of the most painful loss in my life being the loss of the farm Campfornis in the district of Zoutpansberg without compensation.

George Kleynhans

076 741 6666

Zuma resigns

ZUMA RESIGNS

I know the difference between beeeg shiiit and sweet cake of corruption and it looks like more shiiit is on its way.

Zuma will not disappoint when his proaction of protection fails, in my opinion, president Zuma can take the only way out, to compromise and resign while he can.

Let me know when it happens

George Kleynhans

LAWYA INC

076 741 6666

lawya@me.com