PIMVILLE LEGAL CLINIC
HOSTED BY: KEABETSOE STICKS MALEBO
LEGAL ADVISOR: ZOLA MBATHA
HELD AT: KONKA SOWETO
DATE: 10 MARCH 2022
TIME: 17H00 – 19H30PM
On the 10th of March 2022, we held a legal clinic at Konka Soweto that started at 5pm. It was an absolute honor and pleasure to spend the evening with the residents of Pimville most of whom were very troubled by their personal circumstances. I was saddened by the amount of heartache and strain that the elderly displayed and hope that our session makes a little difference to them.
I gave every single person an opportunity to introduce themselves and let us know what matters they came to hear about and how I can help them. The following summary is based on their questions and request for guidance:
• HOW DOES A PROPERTY GET EXPOSED TO HIJACKING:
Only family members hijack immovable property and then sell it to outsiders. The outsider is not the hijacker but rather the family member that convinced the title deed owner to sign all the transfer documents under false pretenses.
I have advised the residents of Pimville to visit the Deeds Office in Johannesburg (the glass building) in order to obtain the sale records in order to identify who in the family signed the property transfer documents and the family must then deal with that person accordingly. The solution would be to reverse the transfer but that is often unrealistic as it costs a lot of money and the buyer will need to be compensated.
• CAN A FAMILY HOUSE BE SOLD WITHOUT THE CONSENT OF THE FAMILY:
Yes. A family house can be owned by only one member of the family and that member is legally allowed to sell the house without the consent of the family. The family must choose wisely as to who will be the legal owner of the property in order to avoid being sidelined.
• WHY DOES THE COMMUNITY HELP EVICTED PEOPLE IN THE COMMUNITY:
The community incorrectly involves itself in civil dispute matters based on the outcome of public opinion. They decide from a caring point to protect the mother with her children living in the house or a member that they have known for a long time. What the community has not done is consider that the mother might have taken that house from a minor heir who couldn’t stand up for the rights when they were younger. They have not considered the fact that the member they are protecting might not be on the title deed and their rightful owner needs to use their property.
• HOW DO WE DEAL WITH A SUSPECT/ FRAUDULENT WILL:
Declaring a Will invalid is a High Court process that costs a lot, includes the costs of an advocate or an Attorney with High Court appearance. The journey starts with notifying the Masters Office of your suspicion that the Will is fraudulent and/forged and as a result you will be approaching the High Court.
• WHEN A SHERIFF SERVES ON A FAMILY HOME, HOW DO WE STOP THEM FROM TAKING ANY ASSETS:
You merely have to notify the sheriff that the property inside the house does not belong to the person cited on the judgment. It is not your job to disprove ownership but rather the legal process to prove which assets are owned by the family member listed in the judgement. It is important to keep you proof of purchase as much as you can.
• HOW TO OBTAIN INFORMATION AT THE MASTERS OFFICE:
The Johannesburg Masters Office is situated at 66 Marshal Street and the public currently has access to this office. You need the ID number of the deceased and/or the Masters Reference (estate number) this will allow you to request the file and look through it in order to make sure that everything is in order and according to what you have been informed.
• HOW DO MINOR CHILDREN GET PROTECTED WHEN THEY ARE THE ONLY HEIRS:
The government guardian fund is set up to receive the inheritance of all minor heirs. This protects their inheritance until they are of legal age to receive same. A parent can place a clause in their Will that the inheritance due to their minor heir can be held in a testamentary trust (this is the cheaper trust option) until their desired age. The best way to protect a minors inheritance is through a testamentary trust.
• HOW DO WE DEAL WITH A FAMILY HOME THAT NEEDS TO BE INHERITED BY MANY PEOPLE:
Families need to understand that, the more people listed on the title deed the more complicated it is to keep that property in the family. With each member of the family listed on the title deed passing away, the property is subjected to estate and transfer obligations.
Honestly speaking, the best solution to the Soweto Family property feuds and succession complications, is the registration of family trusts and transferring of the family property through bequeathing it in a Will, into the family trust.
• HOW TO OBTAIN A LETTER OF AUTHORITY:
You are required to report death at the Master of the High Court by submitting the following documents:
1. Death Notice;
2. Inventory and proof of asset value;
3. Declaration of Marriage;
4. Nomination form – all interested parties to nominate their chosen Representative;
5. Reporting affidavit;
6. Undertaking and Acceptance of Master’s Directions – Section 18(3);
7. Certified copy of the death certificate;
8. Certified copy of the ID of the deceased;
9. Certified ID copy of the nominating parties;
10. Certified ID copy of the Representative.
• WHERE CAN WE GET PROPER WILLS OUTSIDE OF THE BANKS:
Attorneys, Trust companies, Accountants, Financial advisors etc, there are plenty options to getting your Last Will and Testaments drafted. A simple Will that can best explain your wishes. I recommend that you should make a trusted family member or friend the Executor of your estate so that they can have the freedom of appointing the institution that best services your estate and heirs.
• HOW TO TRANSFER IMMOVABLE PROPERTY OWNED BY A DECEASED PERSON:
Once an estate has been administered in terms of the 10 steps of estate administration as explained in our session, the estate becomes distributable. Distribution of an estate entails, amongst other things, the transfer of the immovable property in line with the approved Liquidation and Distribution account:
1. Liquidation and Distribution account is approved by the Master of the High Court and advertised in terms of Section 35 of the Administration of Estates Act;
2. The Masters Office must give approval of distribution.
3. The Conveyancing Attorney is appointed to attend to the transfer of the property in terms of the Liquidation and Distribution account (a summary of the estate and who the heir is);
4. A Rates Clearance certificate is requested from the municipality – the accounts must not owe;
5. Once other requirements are met, the property is transferred at the Deeds Office.
6. A new Title Deed will be issued.
• WHAT HAPPENS IF THE OWNER OF THE PROPERTY LEAVES PROPERTY TO THE WRONG PERSON:
The Wills Act gives every person the right to decide what happens with their estate/property. In the event that a family property ends up owned by a single individual, they can leave that property to whoever they so wish. I repeat, family trusts are the best tool to assist with the family property dilemma.
• HOW TO AVOID DEALING WITH A WILL PRODUCED YEARS AFTER DEATH:
The Administration of Estates Act provides that a death should be reported to the Master of the High Court within 14 days of the date of death. Most people are unable to attend to this within that time provided, this is understandable however some people leave estates unreported for years and assume they have time to deal with it later on. However, this exposes estates to risk and one of those risks is the reporting of an estate with a fraudulent Will and thereafter it becomes a burden on the family to prove that the Will was forged after the deceased passed away. Report estates as speedily as possible.
• WHO MUST COLLECT THE RENT MONIES ON RENTED FAMILY HOMES:
The Executor of the estate. In order to use the funds to take care of the property that is being rented. Thereafter, the heir of the property will continue where the Executor left off.
• CAN YOU SELL OR BUY A HOUSE USING ONLY THE TITLE DEED:
No. it is incorrect to believe that you can sell an immovable property using only the Title Deed. A Title Deed is replaceable at the Deeds Office. It is incorrect to take possession of a Title Deed and then pay the sale price directly in the account of the seller, they can always replace that Title Deed.
• WHERE DO WE GO TO GET SOMEONE EVICTED:
You can go to the Legal Aid at Maponya Mall or at the University of Johannesburg Law Clinic. LPC Pro-Bono program. An eviction process is very costly.
• WHAT LEADS TO A MAKOTI DECIDING WHAT TO DO WITH A FAMILY HOME:
In the event that a male heir is the sole heir of the family home and they leave that property to their spouse, that transfers the family property to the Makoti and once she is the legal owner of the property, she can then decide what to do with that property. This is another reason why I recommend the use of family trusts for family properties.
• CAN FOSTER CHILDREN/ADOPTED/TAKEN IN CHILDREN CLAIM FROM ESTATE:
Yes they can. This is why a Last Will and Testament is important in order to make your wishes understood. Family meetings are also important while we are still around to sit and talk in order to avoid unnecessary conflict amongst the family once you have passed away.
• HOW CAN WE PROTECT OURSELVES FROM AN EVICTION:
An Eviction action needs to be defended. Many people receive either the summons or a Notice of Motion and completely ignore this process hoping it will go away, next thing there is a sheriff at your gate accompanied to evict you.
• CAN A SPOUSE INHERIT A FAMILY HOME WHEN MARRIED IN COMMUNITY OF PROPERTY:
No. inherited property does not form part of your marital regime. The only way a spouse can inherit family property that was historically inherited is through a Will. The owner of the family property can leave the family home to their spouse in a Will.
• CAN GRANDCHILDREN CLAIM FROM GRANDPARENTS PENSION FUND:
Yes, as long as you were a dependent of the deceased you can claim as a dependent from their pension fund.
• HOW CAN WE PROTECT THE FAMILY HOME:
I am very passionate about families sitting down together and having lengthy discussions about the reality of their circumstances and discuss what they would like to see happen to their family home. Families must do their best to reconcile and get along, all this feud is only filling the pockets of legal practitioners and destroying family structures entirely. Family trusts will also prove to be very effective in the protection of the family home.
Thank you for your time and for entrusting me with your inner most stressful situations and I hope that I was able to provide some guidance and light to your situations.