In South African law, an engagement is considered a contract and breaking it off can have legal consequences. If a party breaks the engagement without lawful reason (unlawful termination), they may face claims for damages.

An engagement can be lawfully terminated without consequences under certain conditions, such as:

·       mutual agreement,

·       death of a party, or

·       lawful repudiation for just cause

o   (e.g., misrepresentation

o   or wrongful conduct).

However, “unlawful termination” — ending the engagement without just cause, can lead to claims for both contractual damages and satisfaction under delict law.

Contractual damages include:

·       Real damages: Expenses incurred in preparation for the marriage.

·       Prospective loss: Compensation based on what the wronged party would have received if the marriage had occurred, though this is speculative and controversial.

Recent court cases

Recent court cases like “Van Jaarsveld v Bridges” and “Cloete v Maritz” have questioned the validity of claims for prospective loss, with the courts suggesting that engagement claims should not exceed the consequences of divorce. The idea that an engagement is more of a time to decide about marriage, rather than a binding contract, is gaining ground.

In conclusion

While claims for prospective loss are still debated, it’s becoming less likely that South African courts will allow such claims in the future based on Constitutional Grounds and outdated legislation within the new South African Society.

Consult and contact me to advise you on your financial options and possible consequences before you decide to get engaged or get married in conjunction with your attorney.

The short answer is yes, you can. However, certain conditions must be met for the new will to be valid. A recent case, “Roux N.O and Another v Stemmet N.O and Others”, highlights some of these key considerations.

In this case, the Western Cape High Court examined whether a person intended to revoke their existing will. The deceased, hospitalized with COVID-19, expressed a desire to revoke their will and create a new one. However, the court found that the necessary intent to revoke was absent, stressing the importance of complying with the requirements of the Wills Act. For more detail, see “Roux N.O and Another v Stemmet N.O and Others.” (17064/2022) [2023] ZAWCHC 222.

The Legal Framework

Section 2A of the Wills Act allows a court to declare a will revoked if the testator, in this case, the deceased: “drafted another document or before his death caused such a document to be drafted, by which he intended to revoke his will or part of his will and the court shall declare the will or the part concerned, as the case may be, to be revoked.” (Wills Act, 7 of 1953).

In this case, the court determined that the deceased did not personally draft the document upon which the trustees relied to revoke the 2018 will. Instead, it was drafted by the attorney, based on instructions from Mr. Willemse, not the deceased.

Additionally, the court found that the deceased never physically received, reviewed, approved, or signed the draft will in the presence of witnesses, as required by Section 2(1)(a) of the Wills Act. At the time the draft will was delivered by nursing staff, the deceased was in a coma, unaware of the document’s content and unable to confirm whether it accurately reflected his intentions.

As a result, the court concluded that the necessary “animus revocandi”—the intent to revoke—was absent.

Key Takeaways

Courts are generally cautious about declaring documents that do not meet the Wills Act’s requirements as valid wills. It is always advisable to seek assistance from an attorney or fiduciary expert when drafting or amending your last will and testament, especially as your circumstances or wishes change.

Update Your Will Regularly

It's essential to revise both your financial plan and will regularly. Any significant life event, such as the birth of a child, marriage, divorce, or the death of a family member, should prompt you to update your will.

For example, consider the case of Mr. X, who divorced his wife but never updated his will. He later remarried and had two children with his new wife. When Mr. X died 17 years after his divorce, his will had not been changed. This meant that his new wife and children could not inherit anything, as the original will, made before the divorce, remained valid.

Don’t Delay

Ensure your will is up to date and reflects your current wishes regarding your estate. Contact me today to avoid any potential issues or delays in obtaining your free will.

Introduction:

The proposed amendments to the Companies Act 71 of 2008, specifically sections 30A and 30B, mark a pivotal moment in South Africa's corporate landscape. These changes introduce the "Shareholder's Say on Pay" clause, which empowers shareholders to influence executive compensation policies through binding votes at Annual General Meetings (AGMs). Let's delve deeper into this critical development.

Understanding the shareholder's “Say on Pay”:

To grasp the significance of the Shareholder’s, Say on Pay, we must first understand the definitions and purpose behind these amendments. Sections 30A and 30B mandate greater transparency by requiring affected companies to disclose executive compensation in the annual reports.

Shareholders now have a mechanism to express approval or disapproval during AGMs. Companies must address their concerns if a substantial portion of shareholders oppose the remuneration report.

Implications for Companies and Shareholders:

Corporations face the challenge of justifying their executive compensation policies and payments. With the spotlight on performance-based practices, companies must align pay with results delivered.

These changes empower shareholders to participate in corporate governance matters actively. By understanding their role and influence, shareholders can strengthen organizations and assist the board of directors.

Executives’ pay now hinges on demonstrated results. Companies must justify compensation based on their performance and long-term strategic goals.

The Shareholder's Say on Pay represents a seismic shift in accountability and transparency. As companies adapt to these amendments, they must navigate the delicate balance between rewarding executives and ensuring shareholder trust.

Read more: Navigating the Impacts of the New Companies Act Amendments 2024

International Fraud Awareness Week, November 12-18th was initiated by the Association of Certified Fraud Examiners, where hundreds of organisations around the world come together and pledge to spread fraud awareness in their companies and their communities. Many South African Companies and Medical Schemes are actively part of that pledge.

At Aquilla Financial Solutions we are actively involved in educating and encouraging our clients not to commit fraud and create fraud awareness, especially within the medical scheme claims area. 

Did you know that healthcare fraud can contribute directly and indirectly to the rise of your medical costs, including your membership contributions? You, as a member or a service provider, have the power to help us prevent fraud for the greater good of all medical scheme members and providers.

What are common examples of medical aid fraud?:

• Falsified or altered invoices.
• Member and healthcare provider conspiring to submit false claims and sharing the money paid by the Scheme.
• Members use their membership for individuals who are not dependents.
• Claiming for original medication but dispensing generic substitutes.
• Claiming for unnecessary services.

You might ask how you can help.  There are a number of things that you and I can do:

• Check your claim statements carefully and ensure that you received the services that the service provider is claiming. Be aware that some providers might use your medical scheme details to submit false claims. 
• Ensure that your membership card and number are protected at all times. For some criminals, it might be like an ATM card.
• Don’t accept cash from a service provider in exchange for a medical aid claim. The changes are good in that they will put through a highly inflated claim to get back their cash

I want to encourage you to make use of any of the medical schemes' dedicated Whistleblower hotlines reporting channels to report any suspected medical aid fraud.

You are welcome to contact me if you want advice on your decision to change your medical scheme. We can do no-obligation comparisons for you between your different scheme options or between different medical schemes.

Remember that you have to make your option changes before the medical scheme due date.