FJ Senekal Incorporated

29/03/2023

WATER RIGHTS
1. This article will deal with the recent constitutional court judgement that was delivered on 15 March 2023 in the matter between Minister of Water and Sanitation and 2 others and Casper Jacobus Lotter and 2 others case number CCT 387/2021.
2. It is in our view extremely important to advise on this matter the prohibition that was placed on the transfer of water rights literally destroyed the most valuable agricultural land in this country, if the water rights of an irrigation farm cannot be transferred the property value diminish, nothing have greater cause of devaluation of agricultural land that the prohibition to transfer wate right, or the granting of a mining right in certain instances.

3. This case raised issues of great public interest and to give certainty as to the current Water Right legislation, especially for SA farmers and more particularly farmers dependent on irrigation.

4. It will also assist farmers and financial institutions in the consideration in application for credit.

5. In the few days that followed the judgment, and as would be expected, various articles of the judgment was shared. Our goal as a team, similarly with our previous articles, is to convey a simple synopsis to our readers as to some of the aspects of the judgment we believe to be important and only touch on certain findings of the Court as set out below.

6. Uncertainty arose when the department issued a circular on 19 January 2018 wherein it was recorded that section 25 does not allow trading in water use entitlements.

7. The department was successful in the Pretoria High Court, which judgment was then upset on appeal and ultimately found its way to the Apex Court which dismissed the appeal of the department and other applicants under discussion.

8. The issues that the Court had to decide was whether a water use entitlement obtained in terms of the Water Act may be transferred to a third party and, if so, whether a fee may be charged for the transfer the so-called “trading” of the entitlement. This entailed that the Court scrutinized the interpretation of section 25(1) and (2) of the National Water Act.

9. For the above purpose the Court divided the above section in two parts termed the “first part/leg” and “second part/leg””.

10. The first part concerned allowing, on a temporary basis, “a person authorised to use water for irrigation under the Act” to use some or all of the water for a different purpose. On this score the Court found that the Applicants which include the department accepted, correctly, that the act allows water use by the holder for a different purpose on the same property in respect of which the authorisation was granted.

11. It is the second part that was in contention e.g. allowing the use of some or all of the water on another property in the same vicinity for the same or similar purpose. Here the applicants argued that this section refers to use “on another property”, and says nothing about such use being “by another person or third party”; that “transfer of water use authorisations” in the heading under which section 25 falls means no more that the transfer of a water authorisation from one property to another, “and not from an authorised water user to a third party” and that their interpretation is consistent and harmonious with the remaining provisions of the Water Act.

12. The Court referred to and quoted the judgment of Cool Ideas 1186CC v Hubbard [2014] ZACC 16; 2014(4) SA 474 (CC): “words of a statue must be given their ordinary grammatical meaning, unless to do so would result in an absurdity. Three riders to this are that: the provisions must be interpreted purposively; the provisions must be contextualised; and statutes must, as far as is reasonably possible, be interpreted in conformity with the constitution.

13. The Court found that it makes grammatically sense that although the authority (the first “allowance”) is given by the institution, it is the holder of the water use entitlement who then allows (the second “allowance”) the use of the water on another property. The second “allow” (in the phrase “to allow the use of”) most naturally refer to the situation where the holder of the entitlement allows someone else to use the water on nearby land.

14. The court found that with reference to the second part of the section, that although it is true that there is no express mention of a third party one could equally say that the section does not expressly exclude a third party.

15. On the issue of sections 26(1)(l) and 29(2) dealing with “transactions” and “compensation” the court referred to the definition of transaction to mean “to involve more than one person” and that from these sections it is clear that money may change hands.

16. The applicants argued that section 25 is substantive or norm-setting, whilst the aforementioned sections concerns procedural matters.

17. The Court and the Honourable Justice Madlanga then went on to say that firstly he is not aware of a rule of interpretation that says different parts of a statue dealing with different subject matter must be compartmentalised such that each can never bear relevance to the interpretation of the other and secondly, courts must interpret legislation contextually and reference was made to the Cool Ideas matter. And that “context includes other provisions of the statue or the statue as a whole and here reference was made to the Hoban v ABSA Bank Ltd t/a United Bank [1999] ZASCA 12, 1999 (2) SA 1036 (SCA) at para 20 and other authority cited therein, where Hoban Howie JA held that an interpretative approach that says “context” “is confined to parts of a legislative provision which immediately precede and follow the particular passage under examination” is unacceptably narrow”. He continued by saying that ‘’’[c]ontext’ includes the entire enactment”.

18. The Court was also tasked with the applicant’s point of a paltry administrative fee that is paid for the license versus the huge fees payable for trading in water use entitlements. The court found it not to be a relevant consideration as the reality is that a farm with water use rights is worth more than the same farm without water use rights and for the reason that holders can trade in water use entitlements without selling the farms themselves resulting in market forces that dictates what the fees must be.

19. Private parties entering into an agreement may agree on any terms which the law does not prohibit, which is distinguishable from public bodies.

20. In conclusion it was found that the water use entitlement may be transferred to a third party and a fee may be charged for the transfer.

21. This is again a very step in the right direction for the protection of property rights.

22. We wish to advise our readers in the future about the importance to be proactive when it came to the knowledge of property owners that an application for prospecting rights are applied for, our office are dealing with matters were there are attempts to have farmers rights severely infringed and it is an important matter as the field of mineral law is not only a mine field it is a very serious matter when it come to the right of property owners.

At FJ Senekal, we understand that legal issues can be overwhelming and stressful. Our experienced attorneys are here to provide you with the guidance and support you need to navigate the legal system and achieve the best possible outcome for your case.
🌐 https://www.fjslaw.co.za/
☎️ +27 51 880 0077
📌 42 President Steyn Ave, Westdene, Bloemfontein

Our firm's vision is to provide legal services to all businesses, institutions or persons, to offer practical solutions to our clients.

16/02/2023

MARRIED OUT OF COMMUNITY OF PROPERTY WITH THE INCLUSION OF THE ACCRUAL

The purpose of this article is to lay down in simple terms the development in divorce matters, and the intention is not to embark on a legal tutorial, to quote judgments and specific sections of the applicable acts as in our view it would not assist the reader of this article neither would it be beneficial to them.

Since there exists extensive articles dealing with Section 7 (3) and the Greyling judgment in which it was found that Section 7 (3) of the Matrimonial Property Act (which gave our Courts a discretion to only order a redistribution of assets in respect of marriages concluded prior to 1984 before the enactment of the Matrimonial Property act) was inconsistent with the Constitution, this article will only focus and explore the confusion and/or misconception that is created when it comes to marriages that is concluded with accrual sharing.

There exists a belief amongst some that only the assets accumulated that contributed to the growth of the estate from the date of marriage to the date of the divorce is considered for accrual calculation.

The inference drawn is not correct. As part of the Antenuptial Contract there exists specific provisions in the agreement a “standard agreement” which caters for a net value of each spouse’s estate at the commencement of the marriage and also importantly assets which each spouse intends to exclude when it comes to divorce and the accrual calculation. This is where each spouse is specifically afforded the opportunity to exclude same. Net value may include a large amount of savings or balance in your bank account etc. which one spouse intend to exclude (the value of your estate at the time). If one spouse intend to exclude a net value it would be wise for the other spouse to ascertain the correctness and accuracy of such amount to avoid and prevent the possibility of such dispute arising later on. Another example would be if you received a large inheritance, legatees donation/s and proceeds from certain damages claims etc although automatically excluded from the accrual and any benefit derived therefrom, we would advise for the sake of certainty and beneficial to such spouse to also record such amounts in the agreement to be excluded.

When it comes to the exclusion of assets the first asset that ought to come to mind for consideration is your pension fund (that reflect your hard work and live savings) especially if you have been employed for a considerable long period before marriage, this surprisingly is overlooked more than often, which cause serious conflicts and is very costly. Then of course immovable property.

It may be that certain spouse’s will also exclude assets that carry great sentimental value, being irreplaceable for the specific spouse. It should also be noted that although one may also exclude his vehicle etcetera one must take into account and appreciate loss in value over time in respect of certain items, but then again although no one ever intends for their marriage to end, we cannot predict what the future holds and the duration of a marriage, but it is sound advice to rather be save than sorry.

It is therefore emphasized that if the net commencement value (monetary value) and/or assets are not specifically excluded in the agreement it falls part of the assets to be taken into account in the accrual calculation, which include all pre-marital assets.
A simplistic example of the calculation of accrual:
Estate of A has grown/increased to 1000 000 since date of marriage.
Estate of B has grown/increased to 500 000 since date of marriage.
The difference in growth between A & B is R500 000.
B has a claim for R500 000.00
The CPI (consumer price index) also plays a role in the calculation for obvious reasons as inflation needs to be taken into account.

If it would then happen that one of the spouse’s contend that the other spouse would unduly benefit from sharing in the accrual he/she can claim forfeiture. Forfeiture of any benefit that the one spouse would otherwise be entitled to claim from the other spouse ito the marital regime.

The factors to be taken into account for a forfeiture claim include:
The duration of the marriage
Circumstances that gave rise to the breakdown of the marriage
Substantial misconduct.

The courts have a discretion to order forfeiture on the facts of each specific case and on the ground that it would be just and equitable.
A good example of substantial misconduct may be that one of the spouses has a drug dependency and it can be proven that he/she depleted both parties estate.
If one of the spouse’s allege that the other spouse engaged in extra marital affair/s and relying on substantial misconduct, the court will for instance look at the duration of the marriage as one of the factors and if the parties were married for a long period our courts have already described such conduct as rather a “symptom “ of the marriage and not the cause for the actual breakdown of the marriage.
Then there might be the example where one spouse is particularly wealthy and after a short marriage the other spouse wishes to end the marriage and it might be that such spouse married for an ulterior purpose to financially benefit.
The question of the value and/or the interest in trusts and different legal entities will be dealt with at a later stage.

“A good marriage is one where each partner secretly suspects they got the better deal.”
- Unknown

At FJ Senekal, we understand that legal issues can be overwhelming and stressful. Our experienced attorneys are here to provide you with the guidance and support you need to navigate the legal system and achieve the best possible outcome for your case.
🌐 https://www.fjslaw.co.za/
☎️ +27 51 880 0077
📌 42 President Steyn Ave, Westdene, Bloemfontein

13/01/2023

FJ Senekal would first and foremost like to wish everyone who reads this post a prosperous 2023.

We all know since Covid-19 struck, times became more and more difficult, our country faced numerous challenges, which unfortunately only increases.

The financial demise of individuals, trusts, close corporations and companies are increasing daily and the financial strain is devastating to those at the receiving end.

January is always the most stressful and fearful time of the year for some people.

The purpose of this article is not to deal with liquidations, sequestrations, comprise or business rescues in particular detail, it is only a brief overview.

In my more than 30 years in the legal profession, I was acting on behalf of financial intuitions, took appointments as trustee of insolvent estates or liquidator of liquidated legal persona, I became aware of what financial strain and heartache people endure.

It is for this very reason that I want to post this article, as financial constrains does not mean the end of the road, it should rather be seen as a second opportunity, many successful people had endured financial difficulty.

The reason why the law makers in most parts of the civil world implemented insolvency proceedings is to give those under severe financial constrains an opportunity to get rid of the debt, in the process get a trustee or liquidator to orderly dispose of the assets and treat all creditors equally before the law.

The darkness of the financial ghost is unquestionably one of the most difficult demons to face, after more than 30 years of experience, FJ Senekal Incorporated is equipped to advise and assist with this difficulty.

I have started my legal career more than 30 years ago at Israel, Sackstein, my mentor was Lesley Neil Sackstein, who later became my partner and co-director.
Over the years I had the opportunity to act on behalf of most of the commercial banks, South African Revenue Service and numerous other creditors, and I was appointed as trustee and liquidator in numerous insolvencies across the country.

Since 2010, I was privileged enough to act for more and more liquidators, trustees and on behalf of clients against financial institutions, which caused conflict between the financial institutions for which the company and myself acted.

I decided to start my own practice where I can act without the fear of conflict of interest, I did not want to be comprised nor did I want financial institutions dictating to me.

The biggest problem is that the same attorneys who are supposed to assist clients are dependent on the very financial institution who the client needs to receive advise against, and that is untenable.

The insolvency process is a creditor driven process, but is not only a process to be used to the detriment of the debtor, as long as the debtor is properly advised within the corners of the relevant Acts, and for this reason the importance that someone in financial distress be assisted from the start by a legal representative who is experienced in insolvency matters can never be overstated.

If you get the assistance early enough it might not even be necessary to go the route of insolvency, as creditors’ claims and/or security upon proper investigation can cause a much better settlement as the creditors’ claims are sometimes compromised.

Unfortunately, creditors and understandably so, don not take kind to the non-payment of debt which causes creditors to sometimes take relentless actions against the debtors which can cause more heartache, pain and stress.

Financial stress can be a killer and for that reason it is advisable that people consider their position and get proper legal advice on their financial distress, it can become so problematic that you might become too insolvent to be sequestrated.

Judgement granted against an individual stand for a period of 30 years and during this period creditors can always proceed with ex*****on steps, financial institutions like banks usually sell their debtors book to collecting companies who can wait for a certain time period and then once the debtor is back on his/her feet proceed with the recovery of the debt, which then again cause the debtor serious financial heartache.

Once you have been sequestrated you can proceed under normal circumstances within roughly 5 years to approach the Court for an application and an Order to have yourself rehabilitated, then start to build your new estate, the purpose of insolvency is not to defraud your creditors but to enable creditors to stop hunting (you down) and selling your assets piecemeal, which in the end causes you to be incapable of being sequestrated and start your (life all over again after 5 years).

My experience over the last 30 years was that insolvency has got a profound effect on people, however in most instances if not all, once you have been rehabilitated, you come out a much more financial disciplined individual on the other side and you start over, whilst if you are deprived of your assets there is the possibility of recovery and you will not be haunted by your creditors for the rest of your life.

There is nothing shameful in admitting defeat, the question is, are you prepared to retake control of your life, stand-up and build a new financial independence.

If you require any assistance, do not hesitate to contact an expert, rather sooner than later, which will definitely count in your favour.

“Money won’t create success, the freedom to make it will.”
– Nelson Mandela

25/12/2022

May this season be full of light and laughter for you and your family. Merry Christmas🎄

14/12/2022

DEATHS FOLLOWING PITBULL ATTACKS AND THE ACTIO DE PAUPERIE IN SOUTH AFRICA

1. We as the FJ Senekal Incorporated Team considered what has transpired in the media recently about the Pitbull attacks and thought it be of assistance to place some information on our page, which might be of assistance.

2. Following the unfortunate death of a female adult woman in the Eastern Cape who was on her way to work when she was mauled to death by three pitbulls, another incident was reported over the past weekend whereby a 39-year-old male was mauled to death at the teeth of another pitbull in the North-West Province.

3. The conflict between animals and humans is almost a daily occurrence, and the emotional conflict by these incidents is evident.

4. It stands to be noted that civil and criminal liability can be established, we will however only deal with the civil liability.

5. A person who was attacked, harmed or injured by a domestic animal has a specific remedy available, the actio de pauperie.

6. This remedy is available to an injured person against the owner of a domestic animal which was the cause of injury or harm which such a person sustained.

7. The requirements to succeed with the actio de pauperie, as the SCA stated in the case of O’Callaghan v Chaplin are the following:

i. That the wrongdoer must be the owner of the animal at the time the damage was inflicted;

ii. The animal must be domesticated;

iii. The animal must have acted contrary to its nature at the time of inflicting the damage.

8. The following must be proved by the injured party as was restated in the Van Deventer v Botha judgment delivered in the Free State High Court in 2019:

i. The ownership of the domestic animal vested in the wrongdoer at the time the damage was inflicted;

ii. The dog was a domestic animal;

iii. The animal acted contrary to the nature of domestic animals, and in particular dogs;

iv. The conduct of the dog caused the injured parties’ damage.

9. In instances where the animal did not act contrary to its nature, the aforementioned remedy will not be available against the owner of the animal. Alternatively, the injured person will have to rely on the actio legis aquiliae where there was negligence on the part of the owner or any person in charge or in control of the domestic animal at the time of the damage.

10. There are certain defences available to the owner of the domestic animal which might limit and/or exclude liability on the part of the owner. These defences are the following:

i. The dog must have been provoked by the victim, a third party or another animal;

ii. A third party in charge or in control of the dog at the time must have negligently failed to prevent the dog from injuring the victim;

iii. The unlawful presence of the victim on the premises must have opened the victim to risk; and

iv. The victim must have known of the risk of sustaining injury from the dog and voluntarily accepted that risk.

11. In the most recent judgment of Van Meyeren v Cloete, the SCA stated that the owner of a dog, that attacks a person who was lawfully at the place where he was injured, and who neither provoked the attack nor by his negligence contributed to his own injury, is liable, as owner to make good the resulting damage.

12. There has been much talk recently, especially by the SPCA that dogs must be socialised and that a ban on pit bulls is not an option because there is no capacity to accommodate more animals.

13. Since the call for bans and/or licensing of pit bulls, that is exactly what has been happening. The SPCA was flooded with the handover of pit bulls. They also emphasize that there remains a legal duty on owners of dogs, and that they are responsible to take control over their dogs. Should this not happen, liability remains.

14. The best is for owners to keep animals save and prevent injury.

15. Please make sure that you look after your animals over the festive season, and remember animals are entitled to proper care.

“Justice will not be served until those unaffected are as outraged as those who are.”
- Benjamin Franklin.

25/11/2022

DEFAMATION AND CONTEMPT OF COURT – WHAT TO KEEP IN MIND BEFORE YOU SIMPLY PROCEED TO POST YOUR VIEWS, THOUGHTS AND COMMENTS ON ANY SOCIAL MEDIA FLATFORM

1. During the past few months we acted as correspondent attorneys in a defamation suit on behalf of the applicant seeking interdictory relief. We have on previous occasion during the period of 2018 (when written judgment was delivered) successfully obtained an interdict on behalf of our client where both parties were successful businessman.

2. The most recent matter other than the defamatory content similarly being shared and commented on by the public or other users of Facebook was extinguishable in that both parties had a substantial following on social media and various social media platforms. Furthermore, there was a transgression of the initial interdict that was obtained on an urgent basis. It is for this reason that we intend to explore what is meant with defamation, the requirements for an interdict and the requirements for contempt of court.

3. Before we however deal with the aforementioned it is of importance to mention that in the most recent matter the Respondent, after successfully obtaining a final interdict against him, changed tact and continued with his defamatory and injurious conduct by initiating a topic directed at the applicant or attaching the court order on social media and thereby inviting his followers and audience to express their views, knowingly that his loyal followers will continue with such defamatory postings and thereby making himself guilty of contempt of court. Mindful that the Respondent was at all times in control of his page, could have easily and immediately removed any defamatory postings, but knowingly and intentionally chose not to do so. Although the author of such defamatory posting/s could be the next Respondent (and rightfully so) it is practically a nightmare to obtain the information of such individual/s as one could imagine to take the matter further and various other factors that may play a role such as and which relate with aforementioned reason, being financial implications (various individuals who post defamatory comment) rendering it in many instances practically impossible to take such course. Nevertheless, in such a case the Respondent remains responsible as if the defamatory content was publicised by him alone. There is a Latin legal maxim “Qui facit per alium facit per se” which means “he who does an act through another is deemed in law to have done it himself.

4. Without dealing or considering defamation in detail, a statement is defamatory if it has a “tendency” or is calculated to undermine the status, good name or reputation of the plaintiff. This describes the element of unlawfulness. One’s right to privacy and dignity also being a constitutionally protected right.

5. The applicant may seek mandatory (to remove the defamatory statements) and/or prohibitory (to refrain from posting defamatory statements in the future) relief. The Courts are reluctant to grant the latter relief as they might hold the view that each new statement (whether defamatory or not) are to be considered afresh in light of its own merit and defence/s raised and the party whose rights alleged to be infringed has a recourse to again approach the court in the future.

6. The requirements for a final interdict are that the Applicant must establish a clear right; that injury has been suffered or is reasonably apprehended and lastly, that no other suitable form of relief or remedy is available.

7. However, where a party transgresses the interdict, they may be found to be in contempt of court which constitutes a criminal offence and therefore attracts the onus of proving it beyond a reasonable doubt the requirements being: The existence of a court order; service and notice of the court order; non-compliance with the terms of the court order and wilfulness and mala fides beyond reasonable doubt.

8. The relief for contempt in civil proceedings are usually sought by way of affidavit on application, wherein the relief is sought declaring the Respondent to be in contempt of court and referral of the contempt of court finding to the National Prosecuting Authority for sentencing.

“Ignorance of the law is no good excuse, where every man is bound to take notice of the laws to which he is subject”
_ Thomas Hobbes

17/11/2022

The Director of FJ Senekal Incorporated was involved in a matter pertaining to parties as set out in the judgement under case number 6190/2016 , in the High Court of the Free State Division, in the matter of Willem Frederick Niemann (Applicant) v Theo "Kwagga" Ferreira (First Respondent) & Jan Eksteen (Second Respondent). The matter was an interdict on placements on FB comments, and the Court found in favour of the Applicant.

Recently there was, and is still going on the litigation and disputes between Louis Petrus Liebenberg and Schalk Willem van der Merwe. In the judgement, also in the High Court of the Free State Division, under case number: 4762/2022, the parties Louis Petrus Liebenberg (Applicant) v Schalk Willem van der Merwe (Respondent), the same attorney FJ Senekal Incorporated acted herein as correspondent attorney on behalf of the Applicant, this judgement also dealt with placings on FB by the Respondent Schalk Willem van der Merwe.

We ought it important that these judgements be considered and brought under the attention of the public, taking into consideration the risks and possible consequences of FB placements.