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Month: April 2018

MHI TURNS 19

MHI TURNS 19

It feels like just the other day that Malherbe Hanekom Inc opened its doors in 1999. The modest beginnings was at the Delphi Arena in Tyger valley. Stefanus’office was also the kitchen and Jurgens’ was also the stationery cupboard.

Within a year, we expanded to 297 Durban Road and in 2005 to the bigger 295 Durban Road where we still are today.

mhi

Due to the astounding growth rate and loyal clientele, we now have a sound structure of 8 attorneys, 2 candidate attorneys and an additional staff contingent of 19.

Having started out with a primary focus on Property Law, we now offer our clients a comprehensive service that includes, inter alia, Commercial Law, Civil Litigation, Commercial Litigation as well as Insurance Law.

Stefanus Malherbe specializes in property developments and commercial litigation.

Jurgens Tubb focuses  on property law and estate planning and oversees the bond department.

Chris Faure specializes in litigation and general property transfers.

Our credo, unchanged since 1999, is to be available to our clients and deliver professional service in a professional environment. We are focused on delivering outstanding service.

The unique interests of each client is our passion and it will continue to be so. Our commitment is our guarantee.

Thank you to all our loyal clients who have brought us thus far and we look forward to the next 19 years!

 

IS MY PERSONAL INFORMATION SAFE?

IS MY PERSONAL INFORMATION SAFE?

I made use of a company on one occasion and do not actually need their services in future. However, I am worried about the personal information which I provided them in the course of my dealings. I do not want them to share my information with advertisers or sell it to another company. How does the law protect me?

The fundamental legislation regulating this issue is the Protection of Personal Information Act 4 of 2003 (“POPI”) which, as the title alludes, regulates the processing of personal information in order to protect individuals’ constitutional right to privacy. The Act is not yet in force, even though it has been signed into law since 19 November 2013. However, once POPI comes into effect, all public and private bodies who process (collect, store, transmit, alter, delete, etc.) personal information will have 1 year to comply with the requirements of the Act.

POPI requires that all personal information be processed on the basis of core principles, failing which the processing of personal information will be unlawful. The Act requires accountability from all private and public bodies which process personal information. The Act further only allows for limited processing of personal information i.e. the processing must be reasonable, lawful and minimal. In other words, personal information may only be processed where this is relevant to the purpose for which the information was collected and it must further not be excessive so as to infringe the privacy of the individual.

Furthermore, the information must be collected only for a “specific, explicitly defined and lawful purpose that is related to a function or activity”. The private or public bodies which process personal information must also take reasonably practical steps to ensure that the personal information is “complete, accurate, not misleading and updated where necessary”.

Importantly, POPI requires that you be notified every time your personal information is collected and you must be informed of the purpose thereof. An individual may also enquire whether an organisation has collected any of their personal information. You may then further request a record of this information, request that such personal information be corrected or even be deleted.

The most important requirement under POPI is that an organisation must keep an individual’s personal information secure. Therefore, the organisation must prevent loss/damage to the personal information as well as prevent unlawful access thereto. Where someone accesses this information unlawfully, the organisation is under a duty to report this. POPI goes so far that an organisation may not, for example, outsource a business function without a written agreement whereby the third party agrees to adhere to the above conditions.

Organisations which do not comply with POPI are committing an offence in terms of which they may be charged with an administrative fine or the information officer of that organisation may be imprisoned.  The fines may not exceed R10 million and imprisonment may not exceed 10 years.

It is evident that POPI goes to great lengths in an attempt to safeguard the privacy of individuals. Naturally, this means that great obligations are placed on organisations to lawfully process personal information.

Should you wish to know more about the rights and duties of individuals and organisations under POPI, contact our offices.

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)

 

AVOID DISCRIMINATION WHEN POSTING JOB POSITIONS

AVOID DISCRIMINATION WHEN POSTING JOB POSITIONS

Recruiters should be careful when posting job positions so as not to land themselves in hot water with the Advertising Standards Authority of South Africa (ASA). In a recent incident, a respondent using the industry news website Bizcommunity, had to issue an apology for posting a job position with “Native English Speaker” as a requirement.

Excluding applicants on the basis of language, race or ethnicity

Mr Zibi lodged a consumer complaint against an advertisement which appeared on the website’s job listings. Among the advertised requirements was, “Native English speaking”.

Zibi claimed that the advertisement is discriminatory on the basis of language, which is a violation of the South African constitution and labour law.

The respondent in the matter claimed that the advertisement had already reached its expiry date and that the phrase is common. However, after having had internal talks around the issue, they decided to amend the advertisement to avoid any future types of these complaints. The amendment involved changing the position requirement to “Exceptional English writing and communication skills”, which they believed should address the issue.

Tread lightly

Although it was a small incident, it should not be treated casually, since some people may not be satisfied with an apology. The damage it could potential do to a company’s image should also not be underestimated. A simple error may lead to an extensive amount of time being taken to rectify the problem, which means a loss of money.

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)

References:

http://www.asasa.org.za/rulings/bizcommunity_khayagroup_mzibi_2017-4843f

 

THE BENEFITS OF CREATING A TRUST

THE BENEFITS OF CREATING A TRUST

Trusts are well-known to facilitate effective estate planning and continuity planning strategies. That said, setting up a trust – whether an inter vivos (between the living) or a testamentary (created in a will) – should be carefully considered and not just implemented blindly. 

The difference between testamentary and inter vivos trusts

  1. A testamentary trust is established when a person (the founder) makes provision for establishing a trust in their will. The trust does not come into existence until the founder dies.
  2. An inter vivos trust is set up between the living. In other words, property is transferred before death to the trust by its founder and managed by the trustees for the benefit of another person or persons.

The death benefits of creating an inter vivos trust exceeds the cost – both in time and money. According to The Estate Duty Act, upon death, a duty is levied against your estate known as estate duty. The nett value of any estate will be determined by deducting all liabilities from your assets of your estate, both real and deemed.

Should you create a testamentary trust, upon death the assets are in your name and will need to be transferred to the trust posthumously, meaning all assets are taken into account when assessing the duty payable.

Advantages

Taking the above into account, here are some benefits you could experience from creating a trust:

  1. Reducing estate duty: Inter vivos trusts can be used to minimise estate duty. No estate duty should be payable on assets owned by the trust as a trust does not die.
  2. Protection against creditors: As the trust’s assets are not owned by the beneficiaries, creditors do not have a claim on the assets. This advantage is especially important for people who could be exposed to potential liability. Companies as well as individuals are able to transfer assets into trusts.
  3. Efficient succession: Since trusts never die, beneficiaries will be able to continue enjoying the assets if one beneficiary were to pass away. 

Disadvantages

Despite the advantages, there are also some disadvantages of having a trust. They include the following:

  1. Costs: The costs of setting up a trust can be high. If assets are transferred into the trust, then transfer duty needs to also be paid.
  2. Duties of trustees: Trustees could find themselves personally liable for losses suffered by the trust if it can be proven that they did not act with care, diligence and skill according to Section 9 of the Trust Property Control Act.

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)

References:

www.iprotect.co.za/articals-trust-info/article-arcives/why-an-intervivos-trust-as-opposed-to-a-testamentary-trust.html
www.entrepreneurmag.co.za/advice/starting-a-business/start-up-advice/should-i-set-up-a-trust
www.findanattorney.co.za/content_inter-vivos-trust