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PARENTAL PLAN: YOUR CHILD’S BEST INTERESTS ABOVE YOUR OWN

by on 05-11-2018 02:59AM in News from advertisers

“Co-parenting. It's not a competition between two homes. It's a collaboration of parents doing what is best for the children”- Heather Hetchler.
Divorce or separation due to end of a relationship creates tension; anger and no proper communication between partners. Whether you are divorced or unmarried, one should always remember when children are involved it is not about you and your feelings but rather what is best for your children. Your problems with your ex should not be the problems of your children.
When children are involved they are left in the middle with issues that should not be of their concern. All they need to know is that their parents love them and want the best for them. “Think of it as an important business project; you don’t always love the person that you’re working with, but you work together to get the project done. Co-parents need to adopt this same business model when co-parenting their children” (quote by Kela Price). The best way to ensure that this is maintained is to have a parental plan in place to govern the relationship between the parents and the children.
Although parenting plans can be drawn up at any stage in a separation or divorce, it is advisable that matters relating to children be sorted out sooner rather than later. It is important for children to have plenty of access to both parents. Where both parents have been actively involved in the child’s life before the divorce or separation, a more equal division of parenting time can occur. “This is probably one
of the most difficult challenges any parent could face – learning to love the other parent enough to make the children first” (quote by Iyanla Vanzant).

1. CHILDRENS ACT NO. 38 OF 2005

Before I go into talking about Parental Plans, lets do the most boring task of breaking down the legislation that governs the rights and responsibilities of parents focusing on the best interests of children.

The Act governs both the attainment and loss of parental duties and rights not only by the parents of the children but similarly in respect of other persons.
1.1. Section 18: Parental duties and rights
This section governs whether a person may have whichever full or specific parental duties or rights in respect of a child. The parental duties and rights that an individual may have in respect of a child contains the elements governing the duty and the right to care for the child, to sustain communication with the child, to act as custodian of the child and to pay to the upkeep of the child.
A parent or someone who acts as custodian of a child has the duty to manage and protect the child’s possessions and assets welfares, support or represent the child in managerial, pledged and other legal substances or give or reject any consensus mandatory by law in respect of the child.
1.2. Section 19: Parental duties and rights of mothers
In respect of biological mothers of children, whether married or unmarried, has automatically full parental duties and rights over their children.
1.3. Section 20: Parental responsibilities and rights of married fathers
In respect of biological father of children, whether married or unmarried, has automatically full parental duties and rights over their children.
1.4. Section 22: Parental duties and rights agreements
When separating, both parents have to decide with which parent the children are to reside and what the contact rights of the other parent will be.
Any person who acquires parental duties and rights in respect of the biological children, inclusive of other persons whom obtain guardianship, may enter into an agreement providing for the gaining of such parental duties and rights in respect of the children as are set out in the agreement.
A parental duties and rights agreement must be in the set set-up and encompass the set essentials of which will be highlighted in this article.

A parental responsibilities and rights agreement takes concluded and is a binding document only if it is registered with the family advocate or made an order of the High Court, a divorce court in a divorce matter or the children’s court on application by the parties to the agreement. This will be further dealt with in this article.
1.5. Section 23: Assignment of contact and care to an interested person by order of the court
Any person has an interest in the upkeep, welfare or growth of a child may apply to the High Court, a divorce court in divorce matters or the children’s court for an order granting to the applicant, on such circumstances as the court may consider essential contact with the child; or care of the child.
When the Court considers the above application, they take into consideration the following into account:
(a) the best interests of the child,
(b) the bond between the applicant and the child, and any other pertinent person and the child,
(c) the grade of commitment that the applicant has revealed to the child,
(d) the degree to which the applicant has subsidized towards expenditures in connection with the natal and upkeep of the child,
(e) and any other fact that should, in the view of the court, is justified.
If during the application proceedings attentions is drawn to the court that the adoption of the child has been made, the court may demand a family advocate, social worker or psychologist to provide the court with a account and commendations as to what is in the best interests of the child.
1.6. Section 24: Assignment of guardianship by order of court
Any person having an interest in the care, welfare and growth of a child may well apply to the High Court for an order yielding guardianship of the child.
When the Court considers the above application, they take into consideration the following into account:
(a) the best interests of the child,
(b) the relationship between the applicant and the child, and any other relevant person and the child;
(c) and any other fact that should, in the opinion of the court, be taken into account.
In the occasion of a person applying for guardianship of a child that now has a custodian; the applicant must succumb motives as to why the child’s current custodian is not apt to have custody in respect of the child.
1.7. Section 28: Termination, extension, suspension or restriction of parental responsibilities and rights
A co-holder of parental duties and rights in respect of the child and any other person partaking a adequate interest in the care, guard, welfare or progress of the child may apply to the Court for an decree:
(a) appending for a certain period,
(b) or dismissing, in the least or entirely of the parental duties and rights which a specific person has in respect of a child
(c) or encompassing
(d) or restricting the exercise by that person of any or all of the parental duties and rights that person has in respect of a child.
When the Court considers the above application, they take into consideration the following into account:
i. the best interests of the child,
ii. the relationship between the child and the person whose parental responsibilities and rights are being challenged,
iii. the degree of commitment that the person has shown towards the child and
iv. any other fact that should, in the opinion of the court, be taken into account.
1.8. Section 30: Co-holders of parental responsibilities and rights
When more than one person holds the equivalent parental duties and rights in respect of a child, each of the co-holders may act without the consensus of the additional co-holder when enforcing those duties and rights, excluding where the Children’s Act, any supplementary law or a directive of court affords otherwise.
A co-holder of parental duties and rights may not renunciate or handover those duties and rights to other person but can by agreement with that other person allow the other to exercise slightly or all of those duties and rights on his or her behalf.
1.9. Section 35: Refusal of access or refusal to exercise parental responsibilities and rights

A co-parent or guardian having care or custody of a child is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year if that person contravenes:
(a) Contravenes a decree of any court or in terms of a parental arrangement,
a) by denying another person who has access to that child or who holds parental duties and rights in respect of that child (in terms of that order or agreement) to exercise such access or responsibilities and rights or
b) who prevents that person from exercising such access or such responsibilities and rights.
(b) Informing, in writing, any change in residential address to such other person who holds parental duties and rights in respect of a child.

2. WHAT IS A PARENTAL PLAN

The Act provides a method of an agreement between the parents called a parenting plan. “Co-parenting is not asking permission. It's about discussing your child's needs and wants and deciding what's best” (quote by Anonymous). Parental Plan is a written agreement drafted by both parents with the help of a neutral third party which is to be used to support parents on in what manner they are to exercise their parental duties and rights after separation or divorce.
It must conform with the main intention of ensuring that the best interests of the child are placed first.

Parental Plan must be in writing and signed by the parties. The level of additional formalities depends on whether the plan is "mandatory" or "non-mandatory" of which will be discussed further in this article.

3. WHAT IS THE MAIN PURPOSE OF THE PARENTAL PLAN

Parenting plans ought to minimise loss and maximise relationships for children, and both parents should realise that they are more important to their children than alternative care providers. “At the end of the day, the overwhelming key to child’s success is the positive involvement of the parents” (quote by Jane D Hull). Ultimately, the role of parents is to cooperate and to provide as many opportunities for their children as possible.


4. VARIATIONS OF PARENTAL PLANS
In terms of Section 33 of the Act, there are two situations in which a parenting plan comes into play.
4.1. "Mandatory" Parental Plan - Section 33(2)
This type of parental plan is for parties who are experiencing difficulties in coming to an agreement. They must least have endeavoured to come to an agreement before approaching a court for assistance. An effort must have been made between the parties to try to come to a resolution.

In terms of Section 33(2) it states:

“If the co-holders of parental responsibilities and rights in respect of a child are experiencing difficulties in exercising their responsibilities and rights, those persons, before seeking the intervention of a court, must first seek to agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child”.

As stipulated, all holders of parental duties and rights in respect of a child do not need to enter a parenting plan as from the outset as stated, but if there are difficulties and one or more of the parties need to take
them to court, they ought to first attempt to settle on a parenting plan before imminent court proceedings. If the parties fail to settle on a parenting plan after following the conventions of the Act, the court may then be required to hear the application.

An application to register this form of parenting plan or to have it made an order of court must be made. There are two types of forms to consider, namely:
a) Form 93: This form will be used if the parental plan was completed with the assistance of a family advocate, social worker or psychologist or
b) Form 104: This form will be used and completed after mediation.

An application will then be made with one of the above forms together with a copy of the parental plan and a declaration by a family advocate, social worker or psychologist confirming that the plan was determined after conference with a family advocate, social worker or psychologist, or subsequent mediation by a social worker or other befittingly trained person.
4.2. "Non-Mandatory" Parenting Plan – Section 33 (1)
This type of parental plan is for co-holders of parental duties and rights who may agree at any time of a parental plan if they so choose. There is no stipulation as to how thoroughly co-holders of parental duties and rights ought to try to decide but the only requirement is that they must have at least made a "sensible effort".

In terms of Section 33 (1) states:

“The co-holders of parental responsibilities and rights in respect of a child may agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child”.

This type of parental plan would apply when the parties want to have a organized parental plan in place but no one anticipates any action application to go to court on any problem.

Parenting plan "could" be recorded with a family advocate or made an order of court. It is not obligatory for parties to formalise a "non-mandatory parenting plan".
.
5. MEDIATION

It is always best to have a biased third party involved when attempting to come to an agreement in terms of a parental plan. This is essential as at this stage parents are emotional and not really thinking about the children but rather focused on the hurt and resentment they have towards each other.

Section 33 (5) instructs parties to pursue aid of a family advocate, social worker or a psychologist, or mediation through a social worker or suitably qualified person in preparing a parenting plan.

Mediation is focused on attaining win-win. It is about sitting down and getting rid of all the angst and aggression.

During the drafting phase, the mediator will explore all aspects of family life and together with the parents, they will determine the care, contact, access and other relevant factors that come into play with regards to the best interest of the children.

According to s 33(4) of the Act:

“A parenting plan must comply with the best interests of the child standard as set out in section 7”.


6. WHAT PARENTAL PLAN WILL FOCUS ON

It’s simple, it will not focus on you and your feelings but rather on the best interests of the children.

The set format of parental plan involves many issues such as:

6.1. Where and with whom the child is to live;
In situations where one parent has done the majority of the child care, that parent should continue to be the primary caregiver until the child has time to adapt to spending more time with the secondary parent. In these situations, it may be feasible over time for the child to spend an equal amount of time with each parent. Having more than one home base is not always in the best interests of the child.
6.2. Maintenance of the child
6.3. Contact between the child and any other person
Parenting plan may state that the parents will reassure the child to phone the other parent each day, or that the parents approve not to speak destructively about each other in front of the child.
6.4. Schooling and religious upbringing of the child
6.5. Breaching parental plan
The parenting plan will have a dispute resolution section, employing a mediator and/or facilitator to attend to any disagreements that may rise amongst the parents and to intercede in situations where one parent breaks the plan.

7. FORMALITIES PARENTING PLANS – SECTION 33
In terms of Section 33, it details the formalities of a parenting plan that need to be adhered to before it can be registered with the family advocate or made an order of court. It states the following:
“
1) A parenting plan –
a) must be in writing and signed by the parties to the agreement; and b) subject to subsection (2), may be registered with a family advocate or made an order of court.
2) An application by co-holders contemplated in section 33 (1) for the registration of the parenting plan or for it to be made an order of court must –
a) be in the prescribed format and contain the prescribed particulars; and b) be accompanied by a copy of the plan.
3) An application by co-holders contemplated in section 33 (2) for the registration of a parenting plan or for it to be made an order of court must –
a) be in the prescribed format and contain the prescribed particulars; and b) be accompanied by –
i. a copy of the plan; and
ii. a statement by –
(aa) a family advocate, social worker or psychologist contemplated in section 33(5)(a) to the effect that the plan was prepared after consultation with such family advocate, social worker or psychologist; or (bb) a social worker or other appropriate person contemplated in section 33 (5)(b) to the effect that the plan was prepared after mediation by such social worker or such person.
4) A parenting plan registered with a family advocate may be amended or terminated by the family advocate on application by the co-holders of parental responsibilities and rights who are parties to the plan.
5) A parenting plan that was made an order of court may be amended or terminated only by an order of court on application –
a) by the co-holders of parental responsibilities and rights who are parties to the plan; b) by the child, acting with leave of the court; or c) in the child’s interest, by any other person acting with leave of the court.”
When the parties resolve to proceed to try to settle on a parenting plan, they need to have the parenting plan set.

8. COURTS

The Act encourages a parental plan as a means to avoid co-holders of parental duties and rights from future applications to court as a first option when they experience problems in exercising those duties and rights.
8.1. Avoiding legal battles

It is not to say that the courts do not want to hear issues regarding parental rights and responsibilities, but rather to ensure that the coparents have made a "reasonable effort" to reach agreement.

To avoid parents from running to court for every little problem, the Court has uttered its dissatisfaction with co-holders of duties and rights who do not follow an appeasing approach to come to a mutual agreement. Courts usually enforce adverse cost orders to encourage co-parents to make a reasonable effort and to make use of mediations to draft a parental plan as a prerequisite before being allowed to approach the court.

8.2. Approval of parenting plans in court

After agreeing to a plan, parents can choose to lodge a signed plan with the Office of the Family Advocate or have it made into an order of the court.

Should parents agree on a proposed parenting plan, the court will usually approve it. If the parents do not agree, the court will choose on a parenting plan after a subsequent hearing or trial. The court looks at various factors when coming to a decision, but the most critical issue is that the plan serves the best interests of the child

Once a plan is made an order of court, breach thereof may result in a contempt of court.

In cases of conflict partings or domestic violence cases, a complex level of responsibility is compulsory and so lodging with the court is an complete requirement.








9. DO CHILDREN HAVE A SAY

Depending on the child’s age, maturity and stage of development, such child must be accessed during the development of a parenting plan and granted an opening to state his or her opinions, which must be rendered due deliberation.

The Act necessitates that children also be referred when such a plan is conscripted so that they have an chance to bounce their say on who they request to live with, how much time they wish to devote with each parent and wherever they request to occupy distinct junctures, as well as any additional ranges in which they feel they ought to have a say.

The minute the plan is finalised, it is contracted by both parents. Parenting plans need to be frequently revised, as children’s evolving wants modify over time.


10. CAN YOU AMEND OR TERMINATE PLAN ON APPLICATION

Parental plan may be amended or terminated. If the plan was recorded at the family advocate, they must apply directly to the Office of the Family Advocate.

10.1. Who can amend?
Only three classes of persons may approach the court for an amendment or termination, namely:

(a) the co-holders of parental responsibilities and rights; (b) the child; or (c) a person acting in the child’s interests.
10.2. Procedure to amend
The side by side of procedures mandatory to amend or terminate a parenting plan is not subject to its status of "mandatory" or "non-mandatory", but rather on whether it was recorded with a family advocate or made a decree of court.

a) Parenting plan registered with a family advocate
A parenting plan registered with a family advocate may be amended or terminated by a family advocate on application by the parties to the plan.

Even though section 33(4) of the Children's Act 2005 mentions "the family advocate", it is unlikely that this wording was proposed to limit this capability solitary to the family advocate who recorded the parenting plan.

b) Parenting plan made an order of court
A parenting plan that was made an order of court may only be amended or terminated by:
i. a court on submission by the parties to the plan,
ii. the child (with leave of the court), or
iii. by any other person acting in the child's interests (with leave of the court).

Even though the position in section 34(5) of the Act to an request by "the parties" give the impression to suggest that an request by one party in the face of disagreement by another is impermissible, this clarification was rejected by Goosen J as the learned judge noted, " [s]uch an interpretation would be in direct conflict with section 8 of the Divorce Act, in terms of which a court having made a determination in respect of custody and care of a minor child, is entitled to vary or amend such order in the best interests of such child"6 and would yield an "absurd result".


11. WHAT HAPPENS WHEN YOU VIOLATE PARENTAL PLAN?

When a parent encroaches upon a court-ordered or approved upon parenting plan, they run the danger of being apprehended in contempt of court. Not only that, but they could face guardianship and visitation-related penalties if the court deliberates it to be a grave and reliable adequate problem.

12. ARE PARENTAL PLANS ENFORCEABLE?

As soon as the court makes a parenting plan a decree, both parents has a legal duty obey to it.
If single parent does not permit the other to see the child once he has the right to do so, he may be found in contempt of court. If a parent is found in contempt, the court could direct jail time, fines or another type of punishment as mentioned in this article above.


13. CONCLUSION

It is important to note that “there is no such thing as a perfect parent, so just be a real one” (quote by Sue Atkins). Despite the emotions, anger, hurt and resentment you might have with the other parent of your child, remember that all should be left behind, and focus should be made for the best interests of your child.

“It’s not only children who grow. Parents do too. As much as we watch to see what our children do with their lives, they are watching us to see what we do with ours. I can’t tell my children to reach for the sun. All I can do is reach for it, myself” (quote by Joyce Maynard). A parental plan is the beginning of a new chapter where your relationship with your ex-partner only involves the best interests of your children. If you put your love for your child above your feelings against your ex, you lead an example for your children to lead a harmonious life ahead. (NOTE: this article is for information purposes only. Each case depends on merits of matter and should be consulted with an attorney OR clerk of the court)

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REALITY OF DIVORCE: UNDERSTANDING THE LEGAL PROCESS

by on 05-11-2018 02:58AM in News from advertisers

- "Love, the quest; marriage, the conquest; divorce, the inquest" (quote by Helen Rowland) -

In South Africa, the statistics of divorce is increasing. This is a reality. Divorce has emotional and financial implications which are excessive. Divorce is not a simple break, but during the divorce one should remember “… divorce is like being hit by a truck…but if you live through it, you start looking very carefully to the right and to the left” (quote by Jean Kerr).

When we get married we believe it will be “till death do us part” but realistically life changes and things happen. We would love to live in the fantasy world where love concurs all. “I used to think that divorce meant failure, but now I see it more as a step along the path of self-realization and growth” (quote by Alana Stewart). If the marriage relationship has broken down and that there is no possibility of restoring it, the inevitable result will be divorce.

Registered marriages can only be terminated by divorce order granted by a Court.

As stressful and time-consuming as preparing for your wedding day, the same can be said for divorce. Divorce proceedings have a process that is to be duly followed. In this article I shall provide a basic guide to the process and highlight certain aspects related to divorce proceedings.

1. PROOF REQUIRED IN ORDER TO BE GRANTED A DECREE OF DIVORCE

There are two grounds upon which a Decree of Divorce may be granted. These are:

1.1. The irretrievable breakdown of the marriage. In terms of Section 4 of the Divorce Act, irretrievable break-down of marriage as ground of divorce is applicable if:

1.1.1. the court is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.

1.2. The mental illness or the continuous unconsciousness of a party to the marriage. In terms of Section 5 of the Divorce Act, mental illness or continuous unconsciousness as grounds of divorce is applicable if the court is satisfied that the opposing party in terms of the Mental Health Act, 1973 (Act No. 18 of 1973):

1.2.1. has been admitted as a patient to an institution in terms of a reception order is being detained as a State patient at an institution or other place specified by the Minister of Corrections...

2. ISSUES THAT WILL BE DEALT WITH IN DIVORCE

The issues generally dealt with are:

• Assets and Liabilities. • Maintenance for the Parties. • Parental Rights and Responsibilities. In terms of section 18 of the Children's Act, 2005, parental Responsibilities and Rights include: Contact, Care, Maintenance and Guardianship.

3. DIVISION OF ASSETS

Divorce order will reflect the marital regime of the parties which governs in what way the possessions will be divided upon termination of the marriage at the time of the divorce.

4. WHICH COURT TO APPROACH TO APPLY FOR DIVORCE?

There are two types of courts you could approach, namely you can institute divorce proceedings in either a High Court or Regional Court.

To establish which Court to use, you will need to determine which court has jurisdiction. Jurisdiction will be determined by you or your spouse. So, one will have to look at:

4.1. The place you consider your permanent home located inside the area of jurisdiction of the Court on the date on which the action is instituted or

4.2. The place where you regard as being an ordinarily resident in the area of jurisdiction of the court on the date the action is instituted and has / have been ordinarily resident in South Africa for a period of not less than one year immediately prior to that date.

The High Court has jurisdiction over all the courts, so if you are unable or unsure which court, then the High Court will apply. The difference between the High Court and the Regional Court is based action being more costly and long waiting periods due to high volume burdened court rolls.

5. DIVORCE PROCEEDINGS:

Once you have established which court you will proceed with divorce, then you can start the divorce process. To commence with the divorce process, a Summons needs to be served personally on the other party by the sheriff of the court.

There are two types of divorces, namely unopposed divorces or opposed divorces.

5.1. UNOPPOSED

This is the most cost-effective divorce where both parties are in agreement to the terms of the divorce. The parties usually arrive at settlement agreement and a parenting plan which relates to aspects governing children’s care, access, custody, maintenance etc.

As soon as the settlement agreement and parenting plan are signed by both parties and witnesses, the divorce process can start. This type of divorce is also time-effective in that it is much quicker to obtain a divorce as it can be finalised in about four to six weeks. Where summons is issued, and the other party does not defend the matter, then on the return date the court can grant divorce based on the terms of the divorce reflected in the summons.

5.1.1. Process of Unopposed Divorces:

o STEP 1: SETTLEMENT AGREEMENT AND PARENTAL PLAN

Prior to divorce, parties enter into a settlement agreement plan which are terms of the divorce that parties agree to.

Where children are involved a parental plan will be drafted and signed by both parties. Thereafter the parental plan will be sent to the family advocate who will view the parental plan and ensure that the best interests of the children are maintained. The parenting plan must be endorsed by the Office of the Family Advocate prior to the divorce being heard in court as the matter will not be heard without this endorsement.

The settlement agreement and parental plan should be signed by both parties and witnesses and then it needs to be attached to a summons and a particulars-of-claim as supporting documents.

o STEP 2: SUMMONS

A summons notifies the other party that if he/she disputes a claim and wishes to defend the action, he/she must serve a
notice of appearance to defend the claim within a prescribed period of time after the date of service of summons. The summons further warns the other party that failing to defend could result in judgement being made final based on the contents of the document.

Summons has to contain particulars of claim, which states the nature and grounds for divorce to be made final.

o STEP 3: ISSUE OF SUMMONS AND SUPPORTING DOCUMENTS

The clerk of the court/register will open a file, stamp the Summons and supporting documents and allocate a case number.

Summons and the signed agreements will then be issued at court. The divorce action is then regarded to be instituted on the date the summons was issued.

Once a case number is provided and issued at court, the summons and supporting documents will be returned for service. A copy of the issued Summons and supporting documents has to be handed to the sheriff of the court to be served on the other party.

o STEP 4: SERVICE OF SUMMONS AND SUPPORTING DOCUMENTS The Summons and Supporting documents has to be served personally on the other party by the sheriff. The sheriff will then issue a return of service proving that the summons and documents were served.

The return of service must state that the service has been duly effected and provide date thereof or that the service could not be effected and state reasons why.

o STEP 5: PLACING MATTER ON THE ROLL FOR HEARING

After a period of 10 days, (if the parties live in same area of the court), or 20 days, (if they live in different jurisdictions), the matter may be placed on the court roll for hearing. A date will be allocated by the clerk or registrat of the court and the matter will be set down.

o STEP 6: DATE OF HEARING

On the date of the hearing, the party who instituted divorce proceedings must be at court. It is not necessary for the other party to be present.

The Judge or Magistrate will call the party who instituted the proceedings to the stand and request confirmation of the application for Divorce and signatures on the agreements.

Should the Judge or Magistrate be satisfied, he shall then grant the divorce.

5.2. OPPOSED

This type of divorce is where parties cannot come to a mutually agreed settlement and are disputing aspects of the divorce terms. “Although marriages traditionally begin with I do, when they fail, they invariably end with You don't” (quote by Judith Viorst).

Opposed divorces are emotionally draining and time consuming. If a divorce is opposed, it may take between two to three years. Usually where children are involved or where there are substantial assets, retirement annuities or pension funds, disputes regarding its distribution causes the long-drawn process of divorce. This will inevitably lead to a trial where both parties present their case together with evidence and the Magistrate/Judge thereafter will make a final ruling.

The same steps as in unopposed divorces regarding summons; issue and serve thereof will be the same. After receipt of notice of intention to defend, then the matter will be considered an opposed divorce.
I shall as above I shall elaborate on the various steps below leading to trial.

5.2.1. Process Of Opposed Divorces:

o STEP 1: SAME AS STEP 2 ABOVE IN UNOPPOSED DIVORCES

o STEP 2: SAME AS STEP 3 ABOVE IN UNOPPOSED DIVORCES

o STEP 3: SAME AS STEP 4 ABOVE IN UNOPPOSED DIVORCES

o STEP 4: PLEA

Plea is provided by the other party who defends the matter (“the defendant”). This plea must be submitted to the person / representative that instituted the divorce proceedings (“the plaintiff”). The Defendant must use the plea to answer each and every allegation of the Plaintiff and to set out his or her defence clearly. Defendants response to the particulars of claim must either admit/confess/deny or avoid the material facts alleged in the particulars of claim. The defendant must further state the nature and grounds of his/her defence.

If the defendant does not deliver his plea after the lapse of 20 days, the plaintiff must deliver a notice requesting the plea within 5 days and failure to do so will result in the matter be set-down for hearing without further notice. Once this matter is set down due to non-delivery of plea, judgment can be made against the defendant.

o STEP 5: COUNTERCLAIM

The defendant may provide a counterclaim which is similar to the particulars of claim. The counterclaim is what the defendant will set out and ask the court what he or she wants
the court to order. The counterclaim has to be served the same time as the defendant’s plea.

o STEP 6: PLEA TO COUNTERCLAIM

As with the plea by the Defendant, the plaintiff has to respond thereto within the prescribed period of time. The plea to counterclaim will have to admit/deny/confess or avoid and respond to the material allegations in the counterclaim.

o STEP 6: DISCOVERY OF DOCUMENTS

Prior to trial, each party sends a notice demanding disclosure of documentation and other material which parties intends to use as evidence in trial. The reason for discovery of documents and supporting material is that it provides the other party an opportunity to validate; investigate and read the evidence before the trial.

Only documents discovered may be used as evidence. Any other documents or supporting material not disclosed in the discovery affidavit may not be used unless the Judge or Magistrate consents thereto.

o STEP 7: PRE-TRIAL

Where there is a possibility of settlement of disputes, the Magistrate or Judge may request either party to an informal meeting where they will discuss aspects of the matter that are disputed or not; whether settlement can be made and whether the matter is ready for trial. This assists in cutting down the duration of the trial by eliminating unnecessary allegations where parties have agreed on; confirming that all documents have been provided etc...

o STEP 8: TRIAL

When the day finally arrives, both parties address the court
with an opening statement and highlights the dispute between the parties.

Evidence will be presented by both parties. An opportunity will be provided for a final response to other party statement and evidence.

o STEP 9: JUDGMENT

After both parties present their arguments and evidence, the Judge or Magistrate will consider and make a ruling.

6. FINANCIAL ASSISTANCE:

In most cases there are the spouses that rely on financial support of the other spouse and as soon as divorce proceedings commence, they stop with their financial obligations and support. As divorce is a lengthy process, one can approach the court for interim relief. This application allows the spouse to apply to court for an order where the other spouse provides financial support, which financial assistance will be used to support the children and maintain the household. The court will grant interim relief which is a temporary order until the final divorce order has been granted.

7. CONCLUSION

So, after all the paperwork and getting through of court dates, one thinks that it will be incredibly redeeming. What you opt to recognize is the ramifications that divorce entails. It may seem pleasant or enjoyable to be away from your spouse. We fail to recognize the ramifications of divorce until we experience it, especially if the divorce tracks on the ugly side. One thinks the hard part is getting through the divorce, but the real challenge is the building of the life thereafter, especially where children are involved. “Divorce is brutal and horrible and... you have to actively work to get your life back on track” (quote by Jane Kaczmarek).

Life is not simple. Divorce sometimes brings the worst out of people. A divorce should be a dealt with care as children have to deal with the changes
and adjustments too. “Divorce in and of itself, and with children, is devastating” (quote by Robin Wright).

We will face challenges, but we will have to understand and accept our decision. Divorce should not be taken likely, but in instances where it is for the best, the healing will only begin. As much as we all wish to live in a world of happy endings of “till death do us part”, some endings have a modern-day twist where remaining in a marriage with no happiness, is a metaphorical death on its own part. “Divorce isn't such a tragedy. A tragedy's staying in an unhappy marriage, teaching your children the wrong things about love. Nobody ever died of divorce” (quote by Jennifer Weiner)

(NOTE: this article is for information purposes only. Each case depends on merits of matter and should be consulted with an attorney)

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WATER BY-LAW 2010 AND WATER AMENDMENT BY-LAW 2017: KNOW YOUR WATER REGULATIONS - EVERY DROP COUNTS –

by on 05-11-2018 02:57AM in News from advertisers

Water is one of the most vital elements on earth. All plants and animals must have water to survive. If there was no water, there would be no life on earth. “Water is the driving force of all nature” (quote by Leonardo da Vinci).

We open the tap, and we expect clean drinking water to flow. In the past, “for many of us, clean water [was] so plentiful and readily available that we rarely, if ever, pause to consider what life would be like without it” (quote by Marcus Samuelsson).

Due to inadequate rainfall and declining dam levels, Western Cape has reached the most severe drought in all of its time. Cape Town’s damns are near to empty leaving water crises to rise. In February 2018, the City of Cape Town implemented Level 6 water restrictions in a means to prevent Day Zero. Day Zero is when the last drops of water in our reserves are completely depleted leaving our taps to run dry resulting if negative effects to our environment; health; economy and civil society.

We as residents have understood the water crisis and have lessened water use. However, usage is still high. Level 6 water restrictions is a result to water use levels not declining to adequate heights.

Whether we like it or not, Western Cape must acknowledge the danger it is now facing. We hear about the Water By-Law 2010 and Water Amendment By-Law 2017, but do
we really understand what it is about? To assist in understanding the legislation and consequences thereof, I have briefly set out my understanding of it below.


1. WATER MANAGEMENT DEVICES

Level 6 restrictions are now in place which is stricter and manages those use more municipal drinking water more than the specified limits, which will be prioritised for enforcement. This enforcement will be through having water management devices installed.
The Water By-law allows the City of Cape Town, at the cost of the owner of the property, to install or require the installation of metering for any unit in the complex or property. This system will help the City of Cape Town’s customers to save water and to manage their monthly water bills as wells as help the City of Cape Town to manage debt.
This device will help owners of property to recognize any leakages and have them fixed, instead of ending up an enormous water bill and then being incapable to paying it.

2. RESIDENTIAL PROPERTIES

2.1. LIMIT

A person, whether at work, home, school or elsewhere is limited to 50 litres or less per person.

2.2. LANDLORDS AND TENANTS

Properties that have a higher number of tenants can justifiably use more water than properties with less occupants. For consideration for an increase in daily limit, household can apply for an increase the apportionment of water due to the number of tenants occupying the residential property.

Property owners of leased property are accountable for all water fixings on the property, while the tenant is responsible for any consumption or misuse of water.


Should there be a leak or any other problems involving the water usage or leaks, it is the owner’s obligation to hire the amenities of a registered plumbing servicer to attend to the problem, at the owner’s fee.

2.3. SECTIONAL TITLE OWNERS

Unfortunately, although sectional title owners have made attempts to save water, they could still be penalised if other owners in their complex continue to be wasteful.

The City will monitor these residential complexes and will be information on the number of units in each complex which will be identified and prioritised for enforcement. Depending on the circumstances, this may include fines and/or the installation of a water management device at the cost of the account holder.

Cluster developments with units where the number of occupants necessitates higher usage are encouraged to apply for a quota increase.

2.4. BODY CORPORATES AND HOMEOWNERS ASSOCIATIONS

Body corporates and homeowners’ associations has a duty to encourage water saving and, where necessary, take action against unit holders who misuse water. Where possible, submetering ought be fitted in order to monitor the usage of all distinct units.

3. COMMERCIAL, INDUSTRIAL AND OTHER NON-RESIDENTIAL PROPERTIES

Non-residence is to use less than 45% of their pre-drought billings. This usage will be equated to the equivalent period in 2015. Fines will be issued for every month that the 45% reduction is not achieved.

3.1. BUSINESS OWNERS

As business owners, businesses consumption could increase above the 45% threshold due to demand or increase of business relations as from 2015 and to expect to use less than 2015 usage could be unrealistic.
Should an increase be required, non-residential customers may motivate by means of an Affidavit to the City of Cape town for to increase their allocation beyond 45% reduction limits.

3.2. AGRICULTURAL LAND OWNERS

Businesses are not the only sector that will be affected. All agricultural users are to reduce usage by 60% equated with the equivalent period in 2015 (pre-drought).

“Water is a finite resource that is essential in the advancement of agriculture and is vital to human life” (quote by Jim Costa). The agriculture sector will affect all spheres of the non-residential and residential residents in that this is one of our primary sectors which fulfils our necessities of food source as well as sustains our economy.

Nevertheless, fines will not be dispensed founded on projected appraisals (only on actual readings) or where a problem arose with the meter.

4. FINES

Although water charges will increase in means to force consumers to use less water, one must ask if this will be enough to reduce consumption.

“[A] message has to be sent that if you commit a crime there [will] be punishment” (quote by Benigno Aquino III).

In order to ensure that we work together and forced to take the seriousness of water shortage, City of Cape Town has enforced fines to discourage misuse of water.

Spot fines can be up to R5 000 in terms of the Water By-law.

Homes using more than the usage limit of water per month and exceed their usage limits of water will be issued firstly with a warning letter which will inform them that they are contravening the Level 6 water restrictions. Thereafter an inquiry will be done and then the owners of the property can be summonsed to appear in court which may lead to a fine, and/or have a water management device connected. This fee of the meter will be payable by the owners of municipal account.

Fines can be recirculated if the usage remains more than 10 500 litres of water per month.

5. WHAT IS PERMITTED AND WHAT IS NOT PERMITTED?

5.1. IRRIGATION SYSTEMS AND WATERING – ILLEGAL

Irrigation or watering with municipal drinking water is illegal. Usage for irrigation purposes will be limited to an all-out of one hour only on Tuesdays and Saturdays before 09:00 and after 18:00. Though, please note that use of hoses and irrigation systems linked to another water sources (such as grey water systems and rainwater tanks) is permissible.

5.2. BOREHOLES AND/OR WELLPOINTS – LEGAL IF REGISTERED

Outdoor usage of boreholes is discouraged for outside purposes as this is to reserve groundwater resources. There is no charge for using borehole or Wellpoint water.

Borehole or Wellpoint water use must be metered and all users are required to keep records and have these available for inspection.

If you wish to sink in a new borehole or Wellpoint, you will need to apply and obtain permission from the national Department of Water and Sanitation. Regardless of whether you wish to sell or buy a borehole or Wellpoint water, you or your contractor will still need to apply. As soon as connected, the borehole or Wellpoint must be registered and the sign should be displayed with the obtained registration number.

Wellpoints and Boreholes must be registered. The registration is free and signage is provided free on registration.

5.3. HOSING DOWN OF PAVED SURFACES WITH MUNICIPAL DRINKING WATER - ILLEGAL

No one may use municipal drinking water to hose down paved surfaces or hire power washing driveways companies. The Municipalities uses non-drinking water for Municipal street-cleaning.

5.4. WASHING OF VEHICLES, TRAILERS, CARAVANS OR BOATS WITH MUNICIPAL DRINKING WATER - ILLEGAL.

This applies to private washing, as well as formal and informal car washdowns. Cars must be washed with non-drinking water’ cleaned with waterless products or dry steam cleaning processes. Washing down petrol station forecourts is not allowed with municipal drinking water.

Yes, as frustrating as it is to drive a dirty car, this is unfortunately what we must sacrifice. You will get the odd person who then says, well then “Can I pull my vehicle along the side of a river and wash it with bucket water on the river bank”. The answer is simple – NO!. “It not only pollution that's harming the environment. It's the impurities in our air and water that are doing it” (quote by Dan Quayle). The impact of using the river banks to wash anything would impend on the environmental life of our ecosystem. Rivers are considered part of a stormwater system, so uproar of the river banks are acts in direct violation of the Stormwater Management By-law.

5.5. SWIMMING POOLS WITH MUNICIPAL DRINKING WATER - ILLEGAL

Swimming pools may not be full or topped up with municipal drinking water - even if fitted with a pool cover. This includes filling new pools; portable pools or refilling an existing pool after a repair.

A chemical/liquid pool cover may be used to aid limit evaporation from the pool. However, this type of pool cover may not be as operative as a conservative pool cover, particularly in blowy areas.

5.6. WATER FEATURES - ILLEGAL.

Spray parks and sprinkler systems are not allowed to operate under Level 6 restrictions

5.7. USING FIRE HYDRANTS – ILLEGAL

Using fire hydrants, by anyone, for anything other than their intended purpose without permission is an illegal act (refer to section 55 of the Water By-law) so is water wastage (refer to section 37 of the Water Bylaw) and such contraventions will be dealt with in accordance with existing legal processes in terms of section 64 of the Water By-law.

5.8. GREY WATER TO WATER LAWN – LEGAL

Grey water is relatively clean waste water from baths, sinks, washing machines, and other kitchen appliances.
There are no restrictions on watering times when using grey water. However, you must show visible signage averring that you are using nondrinking water to water your garden. This must be clearly visible from a public street.

5.9. WATERING AGRICULTURAL OR VEGETABLE GARDENS WITH MUNICPAL WATER – ILLEGAL

No irrigation or watering using municipal drinking water is permitted. This also applies to vegetable gardens and agricultural within the Cape Town area.

I have just briefly outlined some of the points in the Water-by law (“Act”). This Act aim is to help prevent Day Zero, which will ensure that we have water until the drought ends. Remember “You are 60% water. Save 60% of YOURSELF.” (quote by Ban Kimoon).
(NOTE: this article is for information purposes only. Each case depends on merits of matter and should be consulted with an attorney)

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Empire Club

by on 04-01-2018 10:35PM in News from advertisers

Are you in need of expert advice on matters concerning the real estate of Canada? Here at Empire Club, our team takes a specialization in the real estate of Canada. Hence, visitors to our site are guaranteed to find everything that they need to know about the real estate of Canada. In addition, it is worth noting that our site contains tons of information that is relevant to the homes in Toronto. Visit us daily to make use of the information.

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BUSINESS ENTITIES AND COMPANY LAW – THE BASICS!

by BUSINESS ENTITIES AND COMPANY LAW – THE BASICS! on 03-13-2018 09:38AM in News from advertisers

“No individual or company, no matter how large or how profitable, is above the law” (quote by Eric Holder).
Company law in South Africa has not been comprehensively arranged in a decree. Accordingly, the two pivotal fundamentals of South African company law are the Companies Act of 2008 (“Act”) and the common law as developed by the courts. South African company law is that body of rules which regulates corporations formed under the Companies Act.
However, there are also numerous other sources of rules related to companies. The Constitution of the Republic of South Africa affords that a company is enabled to the rights in the Bill of Rights to the degree essential by the nature of the company and the nature of the right concerned. More pointedly, the Bill of Rights is binding on a juristic person if and to the degree that it is pertinent considering the nature of the right and the nature of any obligation imposed by it.
Since 1 May 2011, the Companies and Intellectual Property Registration Office (CIPRO) ceased to exist and was replaced by the Companies and Intellectual Property Commission (CIPC). The New Companies Act came into being at the same time, changing the way business owners register their companies.

1. COMPANIES ACT OF 2008
The Act is a modern piece of work which is aligned to the South African Constitution.
Below are a few points on the prominent ideologies and distinctive features of the Act.
1.1. The Act affords for what is basically a gliding measure of directives. As a all-purpose opinion, smaller originalities are subject to smaller directives while more substantial originalities are indebted to fulfil with fairly a number of governing requirements which seem to be intended at safeguarding their societal responsibility.
1.2. The Act requires companies to commit time and capitals to nursing their amenability with other governmental necessities and intercontinental ideals, also seemingly in an determination to protect the societal responsibility and sustainability of bigger originalities. 1.3. The Act shortens supremacy for companies, by providing precisely for the holding of board and shareholder conferences by automated communication and for the transient of board and shareholder resolves and the appointment of directors by way of inscribed determination even when undisputed agreement is not attained. 1.4. The right of access to information is stretched outside the directors and shareholders of the company. Although their rights of access are rooted in the Act, in addition creditors and trade unions on behalf of employees of companies are assumed specific discussion and access to economic reports. 1.5. The Act requires the complete and itemised exposé of salary remunerated to directors, in reviewed economic reports. Payments paid to directors for presence at conferences and other such amenities may be remunerated solitary in agreement with the sums pre-approved by shareholders. 1.6. The supremacies of directors are significantly heightened. The right to manage the company and exercise its powers is bestowed in the board, subject only to prohibitions in the Act or the memorandum. 1.7. The Act is not directly troubled with the conservation of investment progressive by shareholders. Rather it entails that the company calculate its vision of continual creditworthiness and liquidness subsequently the incurrence of specific responsibilities.

“Beware of any enterprise requiring new clothes” (quote by Henry Thoreau). Although above is not exhaustive, one should keep in mind new legislation and amendments that shall inevitably change corporate governance in the future.

2. THE COMPANY AS A JURISTIC PERSON
Companies are juristic persons. The common law also recognises as juristic persons associations formed for purposes other than that of making a profit such as clubs and societies. “Corporation: An ingenious device for obtaining profit without individual responsibility (quote by Ambrose Bierce).

2.1. CHARACTERISTICS OF JURISTIC PERSON

2.1.1. The company is separate from its employees, shareholders or members. If a company is liquidated, its shareholders will lose their shares and such liquidation would prevent its creditors from chasing the shareholders for fulfilment of the its arrears. It is important to note that in some cases juristic personality may be ignored in terms of the Act while the so-called
corporate veil may also sometimes be pierced in accordance with the common law. Piercing the corporate veil would be enforceable when it is evident that the shareholders “used” the resources of the company as a veil to protect themselves from being held personally liable. 2.1.2. It has continued existence of the person which does not depend on the continued membership of any member. 2.1.3. It has limited liability. For example, such a person will acquire its own rights and liabilities 2.1.4. A company exists independently of its members

3. DIFFERENT KINDS OF COMPANIES/BUSINESS ENTITIES

The most essential difference in the Act is between profit companies and nonprofit companies. Profit companies are unified for the determination of monetary gain for their shareholders.

3.1. NON-PROFIT COMPANIES:

This is a company incorporated for public profit or another object relating to one or more cultural or social activities, or communal or group interests, the income and property of which are not distributable to its incorporators, members, directors, officers or persons related to any of them except as barely tolerable in terms of Schedule 1.

Non-profit companies either have members and directors or just directors. Members may either be voting members and non-voting members. The memorandum of a non-profit company will determine whether the company is one with or without members and if there are to be members it will regulate the credentials for membership, the procedure for applying for membership, the price of membership, the rights and responsibilities of members in voting or non-voting member category as well as the requirements on which membership may or will be lost or deferred.

Since a non-profit company has no share capital, members are not owners of the company as with a profit company. Their rights are as set out in the memorandum of the non-profit company. Given the absence of a share capital, the requirements of the Act dealing with capitalisation of profit companies, securities registration and transfer and public offerings of securities do not apply to non-profit companies at all. Nevertheless, the necessities of the Act amendable to shareholders assemblies apply to non-profit companies with voting members, read with the needed changes.

Possibly the most significant delivery in the memorandum of a non-profit company is the statement of its object. The stated object must be a public benefit object or an object relating to one or more cultural or social activities, or communal or group interests and, if the incorporators wish the company to be approved as a public benefit organisation with tax exemption, the stated object must be a public benefit activity listed in Part I of the Ninth Schedule to the Income Tax Act. If, in addition, the incorporators wish to be able to issue certificates to donors for the reduction of their taxable income in terms of section 18A of the Income Tax Act, the stated object must also be a public benefit activity listed in Part II of the Ninth Schedule to the Income Tax Act.

Schedule 1 to the Act includes provisions to guard the assets of nonprofit companies for the stated object. A non-profit company must apply all of its assets and income, however derived, to advance its stated objects. A non-profit company must not pay any portion of its income or transfer any of its assets to any person who is or was an incorporator, member or director of the company, or a person appointing a director of the company, except in the limited instances contemplated in Schedule 1.11.

On the winding up or dissolution of a non-profit company the entire net value of the company must be distributed to one or more non-profit companies, voluntary associations or non-profit trusts with similar objects to the company’s main object.

The memorandum of a non-profit company seeking approval as a public benefit organisation in terms of the Income Tax Act must be aligned to the requirements of section 30 of the Income Tax Act in addition to those of Schedule 1 to the Act.


3.2. PROFIT COMPANIES:

Profit companies are stated as companies without limitations on the transferability of their shares and that do not forbid offers to the public (such as bigger public companies), and companies that do contain limitations on the transferability of their shares and that forbid offers to the public (such as smaller private companies).



3.2.1. Types of Profit Companies

3.2.1.1. Personal Liability Companies

i. The directors and past directors are jointly accountable with the company for any debts and liabilities arising during their periods in office. ii. The company name ends with the word ‘incorporated’. iii. Several professional control bodies, such as those for attorneys and auditors, only allow firms of their members to incorporate if those professionals remain personally liable for the debts of the company. iv. A personal liability company must expressly provide in its memorandum that it is a personal liability company. v. The memorandum should also provide that the directors will be liable jointly and severally with the company for debts and liabilities of the company that are or were contracted by the company during their respective periods of office.


3.2.1.2. State-Owned Companies

i. This is a company defined as a ‘state-owned enterprise’ or a company owned by a municipality. ii. The names of a state-owned company must end with the expression ‘SOE Ltd’. iii. A state-owned company is an initiative that is listed in terms of the Act as a company, and either is listed as a public entity in Schedule 2 or 3 of the Public Finance Management Act, or is maintained by a municipality as intended in the Local Government: Municipal Systems Act and is otherwise parallel to a public entity listed in Schedule 2 or 3 of the Public Finance Management Act. iv. State-owned companies are preserved as public companies under the Act and are consequently subject to more rigorous directorial and responsibility necessities. v. The credentials to this are that the Minister may exempted a state-owned company from the submission of the Act on request by the relevant cabinet minister and furthermore the Public Finance Management Act and the Local Government: Municipal Finance Management Act will overcome in governing a state-owned
company in the event of an discrepancy with the Act which cannot be acquiescent.


3.2.1.3. Public Companies

i. The explanation of a public company is principally unaffected. The only alteration is that a public company now only necessitates one member for incorporation compared to seven members in the past. ii. Public companies are proposed to be utilised by larger connotations where there is a difference between management and membership whereas private companies are predestined to be used where fewer members are involved and there is no clear difference between the membership and those who manage the company in question. iii. Last word(s) of the name of the company for public company is Limited or Ltd. iv. Minimum number of members is one and the maximum is unlimited.


3.2.1.4. Private Companies

i. While analogous to private companies under the old Act, these are parallel to former close corporations. ii. Some of the deviations made to private companies comprise fewer revelation and transparency necessities, no longer being limited to 50 shareholders, and a board that must include at least one director. iii. The name of a private company must end with the expression ‘Proprietary Limited’ or ‘(Pty) Ltd’. iv. Minimum number of members is one and the maximum is unlimited.


3.3. DOMESTICATED COMPANIES

A foreign company may transfer its registration to South Africa. A company must be deregistered in one country and reregistered in another. The requirements for a foreign company to be eligible to transfer its registration to South Africa is that the company is not allowed to issue
and has not issued bearer shares, it is in good financial standing, the majority or all of its assets and undertaking are within South Africa, the majority of its shareholders are resident in South Africa and the majority of its directors are or will be South African citizens.

A foreign company intending to transfer its registration to South Africa must satisfy the necessities of the laws in the jurisdiction of its incorporation for the transfer and pass a resolution equivalent to a special resolution of the shareholders in terms of the Act, if this is not done to satisfy the requirements of the foreign laws.


4. FORMATION

4.1. SOLE PROPRIETORSHIP
A sole proprietorship does not have to be formed; it comes into being when a person begins a business.

4.2. PARTNERSHIP
A partnership is founded on a agreement between the parties and entails nothing just an agreement.

4.3. A BUSINESS TRUST
A business trust is also formed by agreement though the trustees may not undertake control of the trust property pending the lodgement of a copy of the trust deed with the Master of the High Court and have attained from him approval of their appointment as trustees in the form of “Letters of Authority”.

4.4. CLOSE CORPORATION
As of 1 May 2011, it is no longer possible to incorporate a new close corporation,3 although existing close corporations may continue to exist indefinitely.

4.5. COMPANIES
Persons who propose to integrate a company must lodge numerous documents with the Commission.

5. LEGAL NATURE OF THE BUSINESS ENTITY

A sole proprietorship, partnership and business trust have no communal personality whereas companies and close corporations are juristic persons.
The veil of juristic personality may be pierced in accord with the common law and legislature. Moreover, creditors often necessitate adherents of juristic persons to give personal security for the arrears of the juristic person.
A partnership is occasionally treated as a distinct entity at liquidation and for the resolve of litigation.
A business entity that does not have juristic personality does not have continuous sequence but a trust deed of a business trust may regulate that the trust will remain notwithstanding variations in trustees or recipients.

6. MANAGEMENT

In a company management and membership are at least tentatively distinct. A prescribed construction for administration is arranged and set down by the law.

Partnerships entitle all partners to share in administration of a partnership and the law does very little to regulate it. However, the parties may modify this by agreement.

In trusts, separation between beneficiaries and trustees exists. The assets of a business trust must be managed by the trustee in accordance with the trust deed.

A sole proprietor may manage his business as he sees fit.

7. ACCOUNTING REQUIREMENTS

Companies are obligated by legislature to retain appropriate monetary chronicles.

State-owned Company, Public Company and certain Private Companies, Personal Liability Companies and Non-profit Companies, a complete legislative audit must be essentially be done by an independent auditor.

All other companies, except for Owner-managed Companies, must have their annual financial statements independently reviewed. An independent review does not have to be carried out by a registered auditor.

Companies which are obliged to have their annual financial statements audited must also file a duplicate of their annual financial statements with the Commission with their annual returns.

Partners may agree that certain accounting ethics should be upheld, and they are obligated to account to the partnership for their management of it and formal accounts must be purified annually or at other appropriate intervals even in the absence of agreement.

The Master of the High Court may necessitate a trustee to retain specific records and to account to the Master for his management of trust property.

In any event, each tax-paying business entity is obliged to retain such records, books of account and documents as are needed to enable it to comply with applicable tax legislation and to enable the South African Revenue Service to be satisfied that the person has complied with applicable tax legislation.

8. INCOME TAX

“Most large companies structure their affairs so that they minimize their tax payments. As long as you do it within the law, it's OK" (quote by Chuck Feeney).
A company, close corporation or business trust is a distinct tax entity for income tax purposes but then partnerships and sole proprietorships are not.
Tax will be paid by the partners or sole proprietors. This has several inferences, namely:
8.1. For tax purposes:
8.1.1. Companies pay tax at a flat rate of 28% (although dividends tax will also be payable in some cases). There are also considerable tax benefits for companies that fall inside the classification of “small business corporation”. It is advised that persons with small businesses ought to conduct their businesses as companies or close corporations if they fall within these provisions.
8.1.2. Sole proprietors pay tax at the rates applicable to natural persons. The applicable tax rate of a partner will depend on whether he is a natural person or not.
8.1.3. Trusts are taxed at a flat rate of 40%.6

8.2. Tax year end
8.2.1. coincides with financial year for company’s tax year.
8.2.2. for a partner who is a natural person, a trust and a sole proprietor is the end of February.

8.3. Income of
8.3.1. a company may be paid to the members if a dividend is declared.
i. Tax is payable on these amounts in the hands of the member. ii. The tax is imposed on members at a rate of 15% on receipt of dividends but is withheld from the dividend and paid over to the South African Revenue Service by the company or corporation.

8.3.2. a business trust will be regarded as having accrued to the beneficiaries of the trust if they have a vested right to it.

i. Income will then be taxed in their hands and they may subtract all deductions that apply to such income. The income does not have to be distributed. ii. It is sufficient if the beneficiary has a right to it. If not, the income will accrue to the trust and will be taxed there. iii. Income will be taxed in the hands of the beneficiary if the trustees have a discretion to vest income in a beneficiary and they exercise this discretion in favour of a beneficiary. iv. In a trust, tax will only be paid by the person to whom it accrues originally. If the income is taxed in the trust then the beneficiaries will not pay tax on it when it is distributed to them at a later stage.

8.3.3. in partnerships distribution is irrelevant as income already accrues to partners when it is earned. Income splitting to reduce tax is therefore possible in some partnership and business trust situations.

8.4. Salaries paid
8.4.1. by Company may be deducted from income on which tax is paid, providing the salaries are realistic for services rendered in the production of income. i. If shareholders are employed by the company this will be the most tax efficient technique for distributing income of the company to the shareholders. ii. Such an amount is, of course, taxable in the hands of the person who receives the salary. iii. On the whole, it will be only be more tax efficient if the person to whom it is paid pays tax at a relatively lower rate than the company (and the amount of dividends tax payable must also be included in this calculation), which will often not be the case. 8.4.2. to a partner is merely an advance payment of partnership profits and it cannot be subtracted from tax. 8.4.3. to beneficiaries of a trust are tax deductible.

8.5. If there is a loss in a particular year, then that assessed loss normally may be set off against profits in later years. 8.5.1. Assessed tax losses of a company may only be deducted from trade profits on which tax is paid in the hands of the company and it may only be carried forward to the following tax years if the company does not cease to trade for a whole financial year. 8.5.2. A natural person, like a sole proprietor, may deduct an assessed loss from any income he receives from whatever source. It will be carried over from one year to the next even if that person ceases trading. 8.5.3. An assessed loss of a partnership will be deductible by each partner from any income that has accrued to him. If the partner is a natural person, tax losses will be carried forward to the following tax years regardless of whether he is trading. 8.5.4. If the partner is a company as defined in the Income Tax Act 58 of 1962, losses may only be carried over by that company if it has not ceased trading for an entire financial year. 8.5.5. An assessed loss of a business trust, which accrues to the business trust, is deductible in the trust, and it will not be lost if the trust does not trade. i. If the loss is allocated to a beneficiary then he will be able to deduct it.
“Ideas are easy. Implementation is hard” (quote by Guy Kawasaki). Ensure that once you decide on a business entity that all requirements related to the structure and implementation is done correctly. Ensure you understand which business structure you fall under and which business structure fits your idea best.

(NOTE: this article is for information purposes only. Each case depends on merits of matter and should be consulted with an attorney)

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