MDW Attorneys-Commercial, Trusts, Estates

09/12/2025

Our team wishes you a prosperous 2026 filled with happiness and memorable moments.

Our offices will close on 12 December 2025 at 15:00 and reopen on 5 January 2026 at 09:00.

03/07/2020

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Large Established Erf in a Very Quiet street and neighbourhood, in Walking Distance to Fairburn College and close to All Amenities. 1x Double Garage, 1x Single Garage and 3x Parking Areas on the Fully Paved Driveway. Large Pool and Entertainment Area. Can be utilised as 2 Individual Homes, 1 Home wi...

06/09/2019

FREE Wills for the month of September!!

Book a consultation with us and secure your family's future :)

Contact us:
[email protected]
[email protected]

Contact our team today to get certainty about your family’s future: ([email protected]) ([email protected] )

31/05/2019

Your duties as an Executor of an Estate

When you are appointed as an Executor to administer a deceased estate, you will be tasked with a number of duties. An Executor is customarily a family member, a trusted friend, an accountant, an attorney or a financial institution. It is important to have your estate administered by someone who is competent and who is familiar with this specialised area of law – which is why most “lay” executors give power of attorney to a lawyer to administer the estate on their behalf. Complications and unique situations are quite common even in the most innocuously simple estate. Therefore, it is highly advisable that an attorney is consulted with all matters involving a deceased estate.

The first duty of an Executor is obtain the Will and check on its validity, establish who the beneficiaries are and get an approximate idea of the assets and liabilities of the estate. Gathering items such as bank statements, title deeds to properties, insurance policy documents and any other documents which pertains to the financial affairs of the deceased will certainly be useful later on.
One of the key documents is the inventory form. This is an estimated inventory of assets and property which is submitted to the Master of the High Court. This, along with the other official forms can be downloaded from Master’s office website. One of the key purposes of the inventory form is that it will indicate whether total assets exceed R250 000. This is key as if the assets total less than R250 000, the Master can expedite the procedure and allow the estate to be wound up in an informal, cost saving manner. The procedure in this instance is much simpler, in that the executor doesn’t have to advertise for creditors and doesn’t have to draw and submit a Liquidation and Distribution Account.
In most cases the Will in question would probably have exempted the Executor from lodging security. Security is generally not required in cases where the Executor is a parent, child or surviving spouse of the deceased. Where the Master requires security, it can usually be obtained from an insurer. The amount of security required is at the discretion of the Master, who generally insists on security covering the value of the assets disclosed in the inventory.

The executor needs to apply to the Master of the High Court to be formally appointed. This can take approximately six weeks on average. Depending on the particular circumstances of the deceased, inter alia the following documents should be taken:
• The original Will
• A certified copy of the Marriage Certificate
• A certified copy of the Antenuptial Contract
• A certified copy of the deceased’s ID
• A certified copy of the Executor’s ID
• The death notice
• An inventory
• A certified copy of the death certificate
• An acceptance of trust form, in duplicate.
• An affidavit that the estate has not been reported to another Master’s office. (required by some)
• Nomination form and next-of-kin affidavit where there was no Will

The Master of the High Court will grant Letters of Executorship to those persons who have been authorised to deal with the estate and who have agreed to accept the appointment. Copies of the Letters of Executorship will be needed by banks and insurance companies that may hold assets pertaining to the deceased as proof that the assets they hold will be passed on to the properly authorised representative of the deceased’s estate.

24/05/2019

LITIGATION VERSUS ARBITRATION

What is the difference between litigation and arbitration the two processes of dispute resolution in South Africa?

Litigation is a very timeworn process of dispute resolution which takes place in our courts. A Magistrate or Judge presides over the process, hearing each case put forward and delivering a judgment thereafter. Civil litigation is between two parties and criminal litigation is between one or more parties and the State.

Arbitration, on the other hand, is a far less formal form of dispute resolution that takes place in a venue that the parties choose. An arbitration hearing is conducted completely outside the ambit of the courts, parties in a dispute with one another would proceed to have the matter settled via arbitration in terms of a pre-agreement.

An essential difference between litigation and arbitration is that an arbitrator can be appointed by mutual agreement and be one who is skilled and experienced in the subject matter of the dispute. This is not the case with civil litigation, where the Magistrate or Judge is appointed by the State.

It is also far quicker to get an arbitration hearing than a court date, as soon as all the parties are ready with their documentation and the availability of their expert witnesses has been secured, the arbitration hearing can be set down, on average it can be a matter of months and the process being completed within approximately six months. Alternatively, it can take 18 months to two years to get to the trial court in a civil litigation matter.

In litigation, the judgment of the court can be taken on appeal. Arbitration awards, on the other hand arbitration awards are final, if the parties agree to an appeal procedure, the arbitration award may be appealed to a bench of three arbitrators. Even if the matter is appealed, the appeal can be heard as soon as a date can be set by the arbitrators and the parties to the dispute.

Arbitration is, however, a more expensive route to follow than the litigation process. With arbitration, the cost of the venue and arbitrator is covered by the parties themselves, whereas with litigation, the cost of the courtroom, the Magistrate or Judge and other court officials is covered by the taxpayer.

In both litigation and arbitration, having attorneys represent each party is the norm, and each party calling expert witnesses, a standard – unless the matter is purely a factual inquiry. With arbitration however, the parties are more in control of the timing of the proceedings and can therefor better manage the time of their expert witnesses.

All in all, litigation and arbitration each have a firm place and function in our legal system. The arbitration process has certain advantages over litigation, however, the cost can be a deterrent.

17/05/2019

So, what’s the legally required retirement age?

When must employees retire? Does our law stipulate a standard retirement date? What policies and contracts should employers have in place to prevent uncertainty? These are questions that all employees and employers need to understand when it comes to compulsory retirement.

It is vital to ensure that employers have a policy in place to handle the difficult question of compulsory retirement, as it is inevitable that at some point an employee will turn 55 or 60 or 65. If you, as an employer, think you can just say “Happy Birthday, time for you to retire, see you around”, you are in for quite a shock.

The problem is that there is no law which imposes a standard compulsory retirement age on employees, so trying to force someone to retire at an age that you decide on creates the possibility for an employee to institute a claim of ‘age discrimination’ which is a form of automatically unfair dismissal.

What our law does say is that “a dismissal based on age is fair if the employee has reached the “normal” or “agreed” retirement age for persons employed in that capacity”.

• “Agreed”: Clearly your best course of action is to have a written agreement with every employee specifying a compulsory retirement date.

• “Normal”: You can always try to convince a court that you have, through past practice in your business, established a “normal” retirement age. You will have to prove that you have consistently applied this age in previous retirement situations and that the employee in question was aware of it.

A recent Labour Court case shows how dangerous it can be to try to alter any term of employment without negotiating and agreeing it with your employees –

• An employee’s employment contract made no direct mention of a compulsory or automatic retirement age, but his employer’s ‘Human Resources Policy and Procedure Manual’, which was incorporated into and formed part of his contract, stipulated a retirement age of 65.

• This was reduced to 60 when the Manual was replaced by a “Terms and Conditions of Employment” policy. The new policy excluded employees “expressly entitled to retire at 65 in terms of their individual contracts of employment”.

• The employee’s services were terminated when he turned 60 and he approached the Labour Court for assistance.

• The Court held that the employer is “not permitted to unilaterally amend terms and conditions contractually agreed to” and was therefore in breach of contract. The employer must now reinstate the employee retrospectively to the date of termination, his compulsory retirement age being confirmed at 65.

Age discrimination is just one form of automatically unfair discrimination prohibited by law. I if you think you are being discriminated against, directly or indirectly, you would do well to obtain independent legal advice to assist you accordingly.

10/05/2019

Disciplining employees after being absent from work without providing a medical certificate

Absenteeism is arguably the most problematic form of misconduct in the workplace because it has the most severe influence on productivity. Most employers, therefore, require employees to produce a medical certificate when they have been absent.

It is well known that employers are authorised to require such proof from employees and to discipline absentees who are unable to provide it. Section 23 of the Basic Conditions of Employment Act entitles employers to withhold payment of remuneration if the absent employee has failed to provide a legally acceptable medical certificate proving the employee was ill or injured. It is important to note that this only applies where the employee has been absent from work:

1) For more than two consecutive days or
2) For two or fewer consecutive days recurring three times in the space of eight weeks

Previously, an employer was entitled to withhold payment in the above circumstances and simultaneously issue the employee with a warning for the absenteeism, or to impose more severe sanction, depending on the severity of the case. However, one or two CCMA commissioners have found that withholding remuneration and also disciplining the employee constitutes double punishment.
There have also notable issues regarding establishing the authenticity of issued medical certificates. Many medical certificates given to employers appear to have been validly issued by properly registered medical practitioners. However, such certificates are often not what they seem to be.

This could be the case where an employee might either:
1) Provide a genuine medical certificate which does not cover the period of his/her absenteeism
2) Amend what was a valid medical certificate
3) Obtain a genuine blank certificate belonging to a genuine and properly registered medical practitioner and complete it so as to make it appear to be what it is not
4) Obtain a certificate from a person masquerading as a medical practitioner.

Where a genuine certificate fails to cover the period of absenteeism, the employer is not obliged to accept it.
Where the employer can prove that the employee has knowingly submitted a medical certificate edited by someone other than the relevant doctor, this can be grounds for a disciplinary hearing for dishonesty. This also applies where the employee has filled a blank certificate and submitted it to the employer.

The situation becomes more difficult where it is found that the medical certificate submitted was issued by a fake medical practitioner. It is clear that should the employer establish this to be the case it does not have to accept the medical certificate. However, the question arises as to whether in such circumstances an employer can dismiss the employee for submitting such a false medical certificate. It is possible that a genuinely ill employee consults someone alleging to be a doctor and then innocently submits the fraudulent certificate to the employer. In this case, the employee cannot be found to have been dishonest and a dismissal would, therefore, be unfair.

Employers, therefore, need to proceed with extreme caution before dismissing employees who submit uncertain medical certificates and should seek advice from a reputable labour law expert.

03/05/2019

Crying wolf, false claims of racism don’t resolve cases of misconduct

The Labour Appeal Court has recently decided a case where an employee accused his employer of dismissing him on racist grounds

WHAT HAPPENED
The employee was subjected to a disciplinary enquiry, where he was found guilty of 17 charges and was duly dismissed. All the charges against the employee related to gross insubordination, gross insolence and falsely making tacit accusations of racism and harassment against the employer. The gross insubordination charges related largely to the employee’s failure to obey reasonable instructions to attend several meetings, and mainly a meeting to discuss his poor performance with the employer.

The employee took the dismissal on appeal to the CCMA, which found that the grounds for dismissal were fair. The case then subsequently progressed to the Labour Court.

CASE
The Labour Court was sympathetic to the employee, and found that because there was no evidence of any internal regulation or policy entitling the employer to call performance review meetings, the calling of the meeting was inappropriate and unreasonable. The matter was sent back to the CCMA under a different commissioner for reconsideration, but the same conclusion was reached. The Labour Court then again overturned the CCMA’s findings.
The case was then taken to the Labour Appeal Court (LAC).

The LAC ultimately sided with the CCMA and the employer, finding that the right or prerogative of management to request a meeting to discuss performance is self-evidently inherent in every employment relationship. It also found that an employer has the authority to determine how issues of performance should be addressed. The LAC held that an employer has the authority to determine how issues of performance should be addressed and that it is not open to an employee to dictate how the employer should deal with the issues,
“In the email, the employee implied that the employer was racist by stating that ‘Africans are being vilified’ under the coded name of poor performance”.

RULING
Unfounded allegations of racism against a superior by a subordinate subjected to disciplinary action or performance assessment, referred to colloquially as ‘playing the race card’, can illegitimately undermine the authority of the superior and damage harmonious relations in the workplace.

The LAC concluded that the employee’s actions, besides being insubordinate, reveal a poor level of judgement which supports the conclusion that the employee was not suited to the post he occupied.

This case illustrates the LAC’s strict stance on employees making false accusations of racism to get away with insubordination and trying to dictate performance reviews. It is clear from this judgment that such behaviour in the workplace will not be condoned under the guise of serious societal and workplace issues.

26/04/2019

Employee’s right to privacy and how it can be limited

National Union of Metalworkers of South Africa and other v Rafee NO and others (2017) JOL 37705 (LC)

The court considered the conflicting interest of an employee’s right to privacy and the employer’s right in protecting his business. An employee’s contract of employment was terminated on the basis of two charges, namely that the employee failed to delete photographs off his cell phone that he had taken of the production line of the business without the employer’s consent and secondly that the employee refused to allow his employer to have access to his cell phone to serve as evidence to the employer that he had deleted the photos in question.

Disciplinary action was taken against the employee as he was aware that he needed permission to take any pictures that related to the processes and running of the business. During the disciplinary hearing, the Director stated that the reason they asked the employee to hand over his cell phone was to ascertain whether the pictures had been deleted. The employee refused and claimed that it would be an infringement of the employee’s right to privacy, which consequentially led to his dismissal.

After a failed attempt at arbitration, the employee reviewed the application in the Labour Court and contended that the arbitrator was unreasonable in concluding that the “instruction made by the employer to hand over the employees phone was reasonable and lawful” as the arbitrator failed to consider that the employee’s cell phone contained private information and in doing so there was a violation to the employee’s right to privacy in terms of section 14 of the Constitution of the Republic of South Africa, 1996 (“the Constitution”).

The Labour Court had to weigh the competing interest of the employee’s right to privacy and the employer’s right to shield their business. The employee, without a doubt has the right to preserve the confidential information that is contained on his cell phone, in contrast to the employer’s right to preserve the confidentiality of his business operations. The employee has an existing right to privacy in terms of the information that is stored, but this right is not unlimited and excludes any information that is stored that may harm or infringe the employer and his business.

When an employee uses any form of technology or communication that may be directly or indirectly related to the business of employer, the employer has the right to obtain the information that is stored and shared in a reasonable manner. An employee, therefore, may have to temporarily cease possession of these personal items to prove to their employer that the information contained on their personal device will not negatively impact the employer and his business in any way.

In light of the above, the court confirmed that a dismissal resulting from an employee failing to hand over his personal belongings upon which an employer believes that the information contained by the employee might have had a negative impact on his business is indeed lawful and fair.

18/04/2019

Trustees and Disputes - What happens when Trustees fall out and go to war with each other?

If a request sent to a Trustee to resign is denied, can the majority forcibly remove him or her? And if so, must they have good reason to do so?

When Trustee disputes impact a family trust and that results in irreconcilable differences between the Trustees, the only answer may be for one or more of the Trustees to be replaced. First prize of course will always be to achieve this with a voluntary resignation – but if a Trustee refuses to resign, can the majority forcibly remove him/her?

A recent High Court decision dealt with just that question.

3x professional Trustees vs a ‘connected’ Trustee

Facts are as follows:

• A property in Knysna is owned by a trust created for the benefit of a couple’s daughter. There are four Trustees appointed by the Master of the High Court issuing “letters of authority” to two auditors and an attorney and to the beneficiary’s mother. The trust deed contained this clause – “The office of a TRUSTEE shall be vacated if the majority of TRUSTEES request a TRUSTEE to resign.” .The Trustees fell out in a dispute over the father’s loan account, with the professionals proposing that the trust should pay the father interest on his loan, and the mother objecting on the basis that payment of interest had never been agreed to.

• This was discussed in a telephonic Trustees’ meeting, and resulted in the professionals writing to the mother to say she was removed as a Trustee. The Master then pointed out to the professionals that they could not resolve to remove the mother, only to request her to resign. The mother refused to resign and the professionals asked the High Court to order that the mother “has lost her office as Trustee”. Their attitude was that they were acting in terms of the trust deed and in terms thereof, no reasons for the decision had been given.

• The Court, for the reasons we discuss below, held for the mother, who accordingly remains a Trustee. The Court’s reasons for its decision contain some important principles that anyone involved in a trust would do well to take note of:

• Firstly, The trust’s removal clause was ambiguous, the clause, said the Court, “must be interpreted to read that there must be good cause for such a request and that the Trustee shall vacate his/her office only in the event of an acceptance of the request”. (Make sure the trust deed is clear and unambiguous).

• Secondly, an implied term should be read into the clause requiring good cause to be shown – to allow Trustees to remove another. (Make sure you can show fairness and good cause for decisions).

• Thirdly, the professionals had failed to prove any justification for their action. (Make sure you can justify your actions as reasonable).

• Fourthly, the resolution to request the mother’s resignation “should have been taken on a properly constituted Trustees’ meeting and upon proper notice of their intention”. (Comply with all procedural formalities).

• Finally, said the Court, “Decisions in the interests of the trust and trust beneficiary can be made by a majority vote by the trustees, during a properly convened meeting, therefore it is not necessary to remove the first respondent” (Be sure that removal is actually necessary).