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Month: October 2017

DEMYSTIFYING THE EXECUTOR IN A DECEASED ESTATE

DEMYSTIFYING THE EXECUTOR IN A DECEASED ESTATE

During a person’s lifetime s/he will gather assets, in other words, belongings such as a house or a motor vehicle. These assets and liabilities will form part of a person’s estate. At the death of that person, his/her deceased estate must be administered, in other words, divided, distributed and controlled by someone. This person is called an executor.

However, the role of an estate executor and who can be appointed as one has been largely misunderstood.

What does the executor do?

“Executor” is the legal term for referring to the person, or people, nominated in your will to carry out the directives you set out in your will.

  1. This means that it is the executor’s responsibility to disburse your property to the mentioned beneficiaries in your will, but also obtain information on potential heirs, collecting and arranging payments, and approving or disapproving creditors’ claims.
  2. It is the executor’s duty to calculate and pay the estate tax, and to ensure that the correct documentation is filed with the relevant authorities.
  3. The executor is the individual that represents your estate.


Who can be appointed as the executor?

It has become normal to appoint a friend, family member or beneficiary to act as the executor, as they most likely have intimate knowledge of your estate and your affairs, but also, they will not rack up the fees that a legal body might accrue.

However, there is a misconception that you can avoid the fees by appointing a family member as the estate executor, but this could also mean that you are deferring the cost to the nominated family member.

  1. Family members appointed as executors on larger estates immediately find themselves out of their depth, and not only end up hiring a professional executor, but may also pay more for these services than necessary.
  2. A simple way to address this is by appointing a “professional” executor during your lifetime. This allows you to negotiate the executor fees.

If you appoint a family member, make sure that they understand that they will have to appoint a professional agent, and that they should negotiate the fee and be very cautious of agreeing to a fee arrangement in terms of which the professional agent charges their professional fee, instead of the legislated scale.

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. Errors and omissions excepted (E&OE)

Reference

https://www.legalwise.co.za/help-yourself/legal-articles/duties-executor

http://www.fin24.com/Money/Wills-and-trusts/Role-of-executor-of-deceased-estate-20150513

MHI FRONT RUNNERS IN DEFAMATION ON SOCIAL MEDIA

MHI FRONT RUNNERS IN DEFAMATION ON SOCIAL MEDIA

Compiled by Denver Titus 

MHI INVOLVED IN THE DEVELOPMENT OF THE COMMON LAW OF DEFAMATION INVOLVING PUBLICATION ON SOCIAL MEDIA 

On 21 November 2016 Judge Dennis Davis handed down judgement in the Western Cape High Court in the matter between WALDIS AND ANOTHER v VON ULMENSTEIN 2017 (4) SA 503 (WCC).

In this case an urgent application was instituted by Le Chocolatier, a producer of premium chocolate products, and its founder, Daniel Waldis (“the Applicants”), against Christiane Von Ulmenstein, represented at the hearing thereof by MHI Attorneys and Advocate Adam Brink. Von Ulmenstein is a blog writer and restaurant reviewer who writes generally about tourism, restaurants and wine, focusing on Cape Town and the winelands area. The relief the Applicants sought was an order to interdict her to remove the allegedly defamatory post made on her blog as it then was: www.whalecottage.com [now www.chrisvonulmenstein.com].

Extensive case law exists for instances of defamation published in traditional forms of publication such as newspapers and magazines. However, case law in respect of modern forms of publication such as Facebook, Twitter, and in the present case, blogs, is scant. These modern forms of publication represent a novelty in our law, which is largely undeveloped in terms of these forms of publication. Accordingly, MHI Attorneys is proud to have been part of the development of this novel area of South African law, which will be of use to future litigants.

Facts:

Von Ulmenstein’s blog post dated 23 July 2015 followed on an independent article published in July 2015 in Noseweek, a national magazine, which focused on allegations regarding the mislabelling by Le Chocolatier of its chocolates as ‘sugar-free’ which allegedly was not the case. Von Ulmenstein’s article focused on the same subject matter and highlighted how such practices may be life-threatening to diabetics. The article further challenged the labelling of said chocolates as organic – contending it was a fraudulent claim by Le Chocolatier. Von Ulmenstein further challenged whether Le Chocolatier’s chocolates were handmade. Von Ulmenstein wrote that these chocolate slabs were imported as chocolate bars from abroad and remade into slabs prior to being sold by Le Chocolatier. Her blog post lastly contained paragraphs of alleged financial difficulty Le Chocolatier faced at the time and described its founder as a fraud looking for business opportunities even at the expense of the health of its consumers.

The Applicants argued that the blog post was defamatory as it attempted to portray them as dishonest and fraudulent, because Von Ulmenstein had not properly verified the facts contained therein as accurate. The Applicants further argued that the blog post infringed their right to privacy and Le Chocolatier’s right to take part in day-to-day commercial activity without the fear of being unfairly defamed. Von Ulmenstein’s defence was that her blog post constitutes fair comment. Furthermore, the post is truthful and made in the public interest as it relates to public health.

The Applicants countered that von Ulmenstein cannot plead truth and public interest as a defence, because the information was already in the public domain due to publication by Noseweek, as aforementioned. The Applicants further contended that her post was untruthful and made solely with the intention to defame the Applicants.

Ruling:

Judge Davis held that the issue of whether a product is indeed sugar-free and diabetically friendly is a matter of public interest. The fact that the sugar content of Le Chocolatier’s chocolates had been published in Noseweek prior to Von Ulmenstein’s blog post, does not mean that Von Ulmenstein’s post was no longer in the public interest. Judge Davis further held, where there are persistent allegations that a product is not what it claims to be, it continues to be a matter of public interest.

In respect of a report submitted and relied upon by the Applicants regarding the sugar content of its chocolates, Judge Davis found the report to be ‘extremely vague’. A further report submitted and relied upon by the Applicants, compiled by the Cape Winelands District Municipality following an inspection of Le Chocolatier’s products, conducted in terms of s 82 of the National Health Act 61 of 2003, was held to show that there was some form of mislabelling of the Applicants’ products at some point in time, which necessitated relabelling. Accordingly, Judge Davis held that the defences of truth and public interest, as well as fair comment, could be relied upon by Von Ulmenstein in the circumstances.

However, Judge Davis found that parts of the blog post were beyond justifiable under the abovementioned defences and that these parts were accordingly defamatory. To this extent Judge Davis ordered that Von Ulmenstein delete the parts of the blog post relating to the chocolates being life-threatening to diabetics and relating to Le Chocolatier’s founder being a fraud who looks for business opportunities even at the expense of the health of his customers.

Von Ulmenstein was awarded costs in respect of a wasted hearing on 12 May 2016. However, no other award in respect of costs was made.

Conclusion:

The judgement represents an innovation in respect of the relief granted. Judge Davis opted to allow the entire post to remain published save for the above two offending sentences. Accordingly, Judge Davis did not consider the defamatory parts as having tainted the entirety of the blog post, and the publication of the remainder of the post was justifiable. Such an order is only possible with modern forms of publication which allow for subsequent editing thereof, as opposed to traditional forms of publication such as newspapers and magazines which require the entire article to be retracted.

In cases of defamation, the constitutional right to privacy and, where a juristic person, the right to take part in day-to-day commercial activity without the fear of being unfairly defamed, are at odds with the constitutional right to freedom of expression. This judgement favours freedom of expression, as it does not unduly censor the entire post. Instead, the judgement serves to indicate that there are limits to one’s right to freedom of expression and where these limits are crossed, the right to freedom of expression has been exercised unjustifiably and infringed the rights of another. To this extent, the courts will intervene.

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. Errors and omissions excepted (E&OE)

CAN MY PROPERTY BE USED FOR AIRBNB?

CAN MY PROPERTY BE USED FOR AIRBNB?

When deciding whether to become an Airbnb host, it’s important for you to understand how the laws work in your city.

According to Brett Herron, the mayoral committee member for transport and urban development at the City of Cape Town, different holiday accommodation land use types, such as B&Bs and guest houses, are regulated by the City’s zoning scheme, called the Development Management Scheme.

If referring to Cape Town, for instance, the city has a Guest Accommodation Policy that sets out the guidelines that have to be considered when applications are made to obtain the necessary planning permissions. According to the Policy, if you wanted to provide a self-catering, flexible accommodation option in line with current trends for transient guests, visitors and tourists, then these are the guidelines that should be followed:

Purpose

  • A building or group of buildings consisting of separate accommodation units rented for residential purposes, each incorporating a kitchenette / full kitchen, but may also include an option of meals being provided communally to guests.
  • May include communal areas for the exclusive use by lodgers / transient guests.

Scale

  • Form and scale of development determined by development parameters of particular zone (i.e. floor space, building lines, height) and the site context.
  • No general restriction on number of units, but must be locally appropriate in context of the building/site characteristics and surrounding area.
  • Council may determine / restrict the number of units per development in cases and lay down conditions necessary to mitigate the impact thereof.

Location

  • Not supported on a single residential zoned property, subject site must have suitable general residential, mixed use or commercial zoning.
  • Locational criteria that should be considered, include:
  • proximity to public transport routes, commercial centres and tourist activities.
  • character of the surrounding area;
  • mixed use or commercial locations (including areas designated for high density development) are encouraged.

Conclusion

In many cities, you must register, get a permit, or obtain a licence before you can list your property or accept guests. Certain types of short-term bookings may be prohibited altogether. Local municipalities may also vary greatly in how they enforce these laws. However, it is not impossible to list your property on Airbnb, you just have to find out from the local municipality if you have the correct permissions and if the property has the correct zoning.

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. Errors and omissions excepted (E&OE)

Reference

Guest Accommodation Policy, the City of Cape Town, Department of Planning & Building Development Management.

“Regulating Airbnb in Cape Town”, Jan Vermeulen, MyBroadband. https://mybroadband.co.za/news/government/210884-regulating-airbnb-in-cape-town.html