Neil Parker Attorneys INC

29/10/2025

26/03/2025

The most beautiful Cape in the world slowly goes to sleep. Quickly, come get your share!

12/10/2024

Every now and again the most beautiful Cape in the World dresses up for a show! Don't delay! Come get your share !

01/10/2024

In a significant challenge to South Africa’s legal framework, the Free State High Court recently ruled on the unconstitutionality of section 26(1) of the Births and Deaths Registration Act 51 of 1992.

This section prevented men from assuming their wife’s surname after marriage, a right exclusively granted to women.

Four applicants brought this case forward, each with personal experiences of being denied the right to assume their spouse’s surname—an act of discrimination based on gender norms.

The court found that section 26(1)(a)-(c) of the Act, along with Regulation 18(2)(a), violated the right to equality under section 9(2) of the South African Constitution. This section guarantees that everyone is equal before the law, and that equality includes the full and equal enjoyment of all rights and freedoms.

To promote the achievement of equality, legislative and other measures may be taken to protect or advance people disadvantaged by unfair discrimination. Men, however, were forced to apply for a surname change through the Director-General, while women automatically received this right.

The judgment declared this provision unconstitutional, stressing that modern values of equality must be upheld. In essence, the law had perpetuated a patriarchal system by treating men and women unequally in the matter of surname changes.

This ruling has wide-reaching implications for identity and personal autonomy. With the suspension of the unconstitutional provision, men can now assume their spouse’s surname without jumping through bureaucratic hoops. The court has given Parliament 24 months to amend the existing law, or pass new legislation, to ensure it aligns with gender equality standards. This case is expected to reshape how South African law balances individual identity with gender roles.

27/06/2024

In response to the Financial Action Task Force announcing that South Africa had been added to its grey list of countries with insufficient anti-money laundering and terrorist financing controls, the General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Act, 22 of 2022 (“the GLAA”) was enacted in April 2023.

The GLAA amended the Companies Act, 71 of 2008 (the “Companies Act”) to require companies to keep a record of all natural persons who ultimately own or control the company, and to file this information with the Companies and Intellectual Property Commission (“the CIPC”) on an annual basis.

The information to be disclosed includes the identity or passport number, contact information and physical addresses of the individuals directly or indirectly holding more than 5% of the company’s issued securities.

The CIPC reporting form also requires companies to indicate any complex ownership structures, including juristic persons and trusts.

As of 11 December 2023, the CIPC has implemented a system whereby annual return filings can only be submitted once beneficial ownership filings are complete.

Should a company fail to adhere to this requirement by not completing its beneficial ownership information and filing its annual returns with CIPC, the company will run the risk of being deregistered and may result in possible business restrictions as well as non-compliance with the Companies Act.

As a result, serious reputational damage may be caused to the company affecting its business activities.

This requirement originally followed a phased roll-out, however, as of 1 April 2024 has become mandatory.

There is therefore a clear trajectory to ensure accountability and transparency as well as minimise white-collar crime within the corporate space in South Africa and it is therefore crucial for companies to be cognisant of the requirements of beneficial ownership to avoid legislative penalties and reputational harm.

22/06/2024

The most beautiful Cape in the world is shy sometimes! Come get your share of her secret beauty.

20/06/2024

Cheerio Donald! Thanks for the memories! RIP.

19/09/2023

Spouses married in community of property (COP) have a joint estate, where their assets and liabilities are equally shared. This includes assets and liabilities that were acquired before the marriage.

In this marital regime, the spouses have an equal and undivided share in the joint estate – and that share is indisputable.

At death, the surviving spouse is only entitled to their share of the estate and not the entirety of it.

The deceased spouse can choose to bequeath their share as they wish.

Should the deceased spouse have a larger estate than the surviving spouse, assets will be transferred to the surviving spouse as they are married in COP.

In this instance, or where the deceased bequests a part of or the full share of their estate to the surviving spouse, no capital gains tax (‘rollover relief’ principle) or estate duty (Section 4q of the Estate Duty Act) will apply.

This is only true for South African assets.

Should offshore assets be involved, then it would depend on where those assets are domiciled and the rules of that jurisdiction.

The ‘rollover relief’ principle allows the estate to defer paying capital gains tax (CGT) when transferring the capital assets to the surviving spouse.

The surviving spouse will then inherit the assets with the original base cost, and when CGT is triggered in the future, the original base cost will be applicable when calculating CGT.

Simply put, it is viewed as if the surviving spouse steps into the shoes of the deceased, as the owner of the assets, with regard to the history of the asset.

The Section 4(q) deduction is a leniency provided to spouses when assets are transferred from one spouse to the other due to death.

It allows assets that are bequeathed to the surviving spouse to be exempt from estate duty. This benefits the deceased’s estate by reducing the estate duty payable by the estate.

As mentioned, the deceased spouse may distribute their share of the joint estate to third-party beneficiaries such as children, relatives, trusts and so on.

When leaving assets to third-party beneficiaries, the deceased estate becomes liable for all applicable taxes.

In this instance, the estate will be liable for CGT on all capital assets.

This excludes personal use items.

There is also the R2 million exclusion on the gain of a primary residence.

The R2 million exclusion is an exclusion on the asset itself.

Therefore, for spouses married in community of property, a maximum of R1 million can be excluded from the gain of the primary residence.

Another exclusion is the R1.8 million small business exclusion, applicable to businesses with a value not exceeding R10 million.

Certain requirements must be met for this exclusion to apply.

For estate duty purposes, the deceased estate will not enjoy the Section 4(q) deduction benefits in respect of assets bequeathed to third-party beneficiaries.

Should the deceased spouse’s gross estate exceed R3.5 million, 20% estate duty will apply and 25% will be applied on the value of the estate exceeding R30 million.

In conclusion, the share belonging to the surviving spouse is indisputable, but this does not automatically entitle them to the entire estate.

The deceased spouse has the freedom to distribute their share of the joint estate as they wish, taking into consideration the tax implications that will be applicable.

Assets inherited by the surviving spouse will be exempt from CGT and estate duty.

Your will is the document that will regulate the above so it is important to have it drawn up by an attorney.

Contact us for assistance.

021 785 3232

[email protected]

Neil Parker Attorneys INC

07/09/2023

Cheerio Mr Pick'n Pay. Thanks for the memories and your contribution to this country. RIP Sir. Great man. Great innings!

30/05/2023

Review your Life Cover

For many, personal circumstances that should trigger an insurance cover review tend to go unnoticed over time which, in turn, could lead to either insufficient cover – or even too much cover for one’s needs. In fact, most long-term insurance policies are renewed automatically each year without the policyholder paying too much attention other than to the contribution increases.

Ideally, however, your risk cover should be reassessed at every significant life event, including the following:

Your smoker status

If there have been changes to your smoker status since the inception of the policy, be sure to find out what your insurer’s requirements are in this regard as there may be an obligation on you to notify them, particularly if you applied for cover as a non-smoker and have subsequently started smoking. Keep in mind that failure to inform them of this change may result in a reduced or declined claim depending on the rules of your particular insurance company. On the other hand, if you were underwritten as a smoker and have subsequently stopped smoking for a period of at least one year, your insurer may reduce your premiums as a result of your new status. Bear in mind that most insurers will require you to sign a non-smoker declaration and reserve the right to insist on smoking tests that measure the level of cotinine present in your body. As far as insurance is concerned, you are either classified as a smoker (which includes e-cigarettes and vapes) or a non-smoker – there is no grey area – so be absolutely honest with your insurer.

Change in occupation or pastime

Your occupation, including the nature of your job, where you work, how much you travel, how much time you spend at a desk, and any component of your job, is an integral part of the underwriting process which also affects your premiums. As such, any change in the nature of your occupation should be communicated to your insurer, particularly in relation to your disability cover. Certain occupations, such as pilots and air traffic controllers, present much greater risks than, for instance, a desk-bound accountant, and your insurer will need to underwrite any additional risk that you present as a result of your new occupation. While most occupations qualify for cover, there are certain occupations, such as cash-in-transit guard, which may result in an outright decline. Similarly, if you’ve taken up a sport or pastime which is considered high risk, such as certain motor sports or scuba diving, it is important to let your insurer know about these.

Getting married

Marriage should automatically trigger a review of your life cover as you will no doubt want to make financial provisions for your spouse in the event of your death. For instance, you may want to ensure that in the event of your death, there is sufficient liquidity in your estate to settle your combined debt and to make provision for an income for your spouse for a pre-determined period of time. Naturally, the level at which you need to provide financially for your spouse will depend on several factors such as their qualifications and/or earning potential, health status, living standards, and whether or not you have children who need to be provided for.

Travel outside the borders of South Africa

If you take up new employment that requires you to travel frequently outside the borders of South Africa, your insurer will need to know – particularly if you are required to travel to certain high-risk countries. Depending on the time you spend out of the country and which countries you travel to, your insurer may increase your premiums or implement exclusions on your policy.

Group life cover

When reviewing your personal life insurance, it’s important to include your group risk cover in your calculations. If you’re contributing to your employer group’s pension fund, be sure to determine exactly what group risk benefits you enjoy. Importantly, check whether your group cover provides a Free Cover Limit which is the amount of cover you qualify for without being medically underwritten. Group life cover is generally more cost-effective than personal insurance so, if you do need to increase the level of your life cover, it may make financial sense to investigate whether you can increase your group life cover rather than increasing your personal insurance cover. If you have joined a new company that includes life cover as a benefit, you may wish to reassess the amount of personal life cover you have to ensure you are not over-insured. If you leave an employer and still require the group life cover, enquire about a conversion option for this benefit as this cover may be converted into a personal policy with minimal medical underwriting.

Protecting your debt

If you have incurred large debt, such as home or vehicle finance, you may wish to adjust your life and capital disability cover to ensure that your debt can be settled in the event of death or disability. In fact, any increase in your debt levels should trigger a review of your long-term insurance to ensure that, should tragedy strike, your debt can be paid off without burdening your estate. Remember, as your net worth increases over time, you may have a reduced need for life and disability cover. However, before reducing or cancelling any long-term insurance, be absolutely sure that a need for such will not arise in the future – bearing in mind that such cover may be difficult and expensive to replace in the future.

Having children

Having children is a sure trigger to review your life cover to ensure that your children’s living expenses and education costs will be provided for in the event of your passing. Again, the level of cover that you put in place to provide for your children will depend on several factors including the ability of your spouse to generate an income, your debt levels, your standard of living, and the level of education you envisage for your children.

Buying property

If you’re purchasing a property using a home loan facility, your bank will generally insist that you have life cover to the value of your home loan in place. In any event, it is advisable to put sufficient life cover in place to ensure that your bond can be paid off in the event of your death or disability. Remember, if there isn’t sufficient liquidity in your deceased estate to settle your debt, your executor may need to liquidate assets in order to settle your debt, and this can impact detrimentally the inheritance of your heirs. Remember that if your bank requires an insurance policy to cover your bond as a condition of the bond approval, you are under no obligation to take out the insurance offered to you by the bank and you are free to increase your personal life cover.

Divorce

Divorce should immediately trigger a review of your long-term insurance for several reasons. Firstly, following your divorce, you will likely no longer wish to provide financially for your ex-spouse in the event of your death, and you may therefore wish to review the level of life cover you have in place. You’ll also probably want to review the beneficiary nominations on your policy to ensure that your ex-spouse is not named as a beneficiary. Further, keep in mind that if you have a maintenance obligation to your spouse or children in terms of a valid divorce order, you may be required to ensure that this obligation is backed by life cover.

Estate planning

When reviewing your life cover, be sure to determine whether there is sufficient liquidity in your estate in the event of your death. Life cover can be used effectively in one’s estate plan to create liquidity and provide your loved ones with immediate access to capital without having to realise assets in the estate. That said, it is important that such life cover is correctly structured and that the beneficiary nominations are absolutely correct, so be sure to review carefully.

As is evident from the above, long-term insurance can serve a number of different functions in your portfolio and any cover you have in place must be kept updated, adapted, and relevant to your unique circumstances.

Should you not qualify for life cover for any reason, alternative provisions must be made.

Contact us for advice in this regard or any aspect of the above.

[email protected]

15/04/2023

DIVORCE AND YOUR WILL

03/03/2023

Chapman's Bay Estate Homeowners' Association v Lotter and Others (9387/2022) [2023] ZAWCHC 35 (24 February 2023)

The Chapman’s Bay Estate Homeowners’ Association has lost its application to review and set aside an adjudication order by dispute resolution resource , the Community Schemes Ombud Service (CSOS), regarding levies that the association imposed on a property in the security estate.

The original complaint at CSOS had been lodged by homeowner Willem Lötter, who purchased a vacant property in the estate and took transfer in January 2021.

The property had originally first been transferred from the developer of the estate in August 2017 and the Homeowners Constitution, to which all subsequent transferees were subject to, contained a clause that imposed a penalty levy if a dwelling was not completed on the property within three years from date of transfer of the property from the Developer.

The clause further states that construction must be started within two years of taking transfer from the Developer and must be completed within one year from the date of commencement of construction, unless an extended time period is approved due to the complexity of the dwelling.

The association argued that the period within which construction is required to commence and be completed in terms of the clause is calculated from the date of first transfer of the property from the Developer and that it is for the purchaser of a property that is subject to a penalty levy to negotiate a reduced purchase price owing to this restrictive obligation.

In the case of the property in question, neither the first purchaser, nor any of the successive purchasers, except for Lötter, commenced with construction on the property.

Lötter was made aware of the implications of the clause prior to purchasing his property in the estate and had mentioned at a hearing of the matter that the seller refused to agree to a reduced purchase price.

Lötter started with the development of his property shortly after the transfer and it has since been completed.

Lötter was, nevertheless, charged penalty levies in the sum of R58 905 because the property had not been developed within three years of transfer from the Developer to the first owner.

Lötter was not required to pay any levies inherited from the previous owner. Those levies had been paid up.

However, the levies required from Lötter were imposed afresh on the basis of the association’s interpretation of the provisions of the clause.

Fourteen months after taking transfer, Lötter applied to the Ombud for an order that the association be stopped from enforcing penalty levies on new owners who had not taken transfer from the Developer and who have made every effort to develop their property expeditiously post taking transfer from subsequent owner/s.

The Ombud granted the order in May 2022, but the association took the matter to the high court, where the judge ordered the association to desist from imposing penalty levies, in terms of clause 9.10 of its constitution, on any owners in the estate other than those who had taken transfer of their properties from the Developer.

The order was granted with immediate effect and with costs.