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COVID-19 LOCKDOWN – UPDATE TWO:

 



FINANCIAL RELIEF FOR SMME’S



As the President has indicated, the Government is aware of the potential risk to SMME’s and our economy as a consequence, there are currently several funds which have been put in place to try and assist SMME’s by providing some financial relief to businesses in distress owing to the lockdown.
We will explore and briefly discuss some of these funds here like the:

  • The Debt Relief Finance Scheme
  • The SA Future Trust (“SAFT”)
  • The Sukuma Relief Programme (“SRP”):
  • COVID-19 Temporary Employer / Employee Relief Scheme (“TERS”):
  • The Business Growth / Resilience Facility
  • Tourism Relief Fund (“TRF”)
  • Tax measures


1.          The Debt Relief Finance Scheme:

This Scheme is an initiative from the Department of Small Business Development. The fund value amounts to R500 million.

1.1                     Qualifying Criteria

1.1.1                               The business must be registered with CIPC at 28 February 2020;

1.1.2                               The business must be 100% owned by SA Citizens;

1.1.3                               The business should employ at least 70% South African Nationals;

1.1.4                               The business should be fully tax compliant;

1.1.5                               The business must prove that it has been adversely affected by the
                                       COVID-19 pandemic;

1.1.6                               Complete the simplified online application platform;

1.1.7                               Priority will be given to businesses owned by women, youth and people
                                       employed with disabilities;

1.2                     Supporting documentation

1.2.1                               Company statutory documents;

1.2.2                               FICA documents (e.g. Municipal accounts, letter from traditional authority);

1.2.3                               Certified ID copies of directors;

1.2.4                               3 months bank statements;

1.2.5                               Latest Annual Financial Statements or Latest Management Accounts not older
                                       than three months from date of application – where applicable;

1.2.6                               Business Profile;

1.2.7                               6 months Cash Flow Projections – where applicable;

1.2.8                               Copy of Lease Agreement or Proof ownership if applying for rental relief;

1.2.9                               If applying for payroll relief, details of employees - as registered with UIF
                                       and including banking details – will be required as payroll payments will be
                                       made directly to employees;

1.2.10                            Facility Statements of other Funders;

1.2.11                            A detail breakdown on application of funds including salaries, rent etc.

1.3                     Application process

1.3.1                               To apply, the business must register on https://smmesa.gov.za, complete and
                                       submit the online application form and upload the required documents.

2.          The SA Future Trust (“SAFT”):

The SAFT was established by the Oppenheimer family to provide assistance to SMME’s that are affected by the Covid-19 pandemic and lockdown. The SAFT will transfer funds directly to employees of participating SMME’s by way of affording the participating SMME a 5 year interest free loan.

The SAFT will transfer funds directly to the employees of the participating SMME by means of an 5 year interest free loan which is granted to the SMME. The SMME is liable to repay the loan and there is no liability on behalf of the employee.

2.1                     Qualifying Criteria

2.1.1                               The business must have an annual turnover of less than R25 million;

2.1.2                               The business must have been trading for two years or more;

2.1.3                               The business must be in good standing with the banks;

2.1.4                               The business must be a sustainable business as at 29 February 2020;

2.1.5                               The business must be banking with one of the following banks: ABSA, FNB,
                                       Nedbank or Standard Bank; and

2.1.6                               The business must be able to provide proof of how the lockdown and pandemic has
                                       adversely affected the business.

                   

 

2.2                     Supporting documentation:

2.2.1                               Company identification & registration number (if a company or a close corporation);

2.2.2                               Master’s reference number (if it is a trust);

2.2.3                               ID number and business address (if a sole proprietor)

2.2.4                               PAYE Number

2.2.5                               A valid PAYE Number registered with SARS (if applicable)

2.2.6                               Income Tax Number

2.2.7                               A valid income tax number registered with SARS

2.2.8                               Employment Status

2.2.9                               Confirmation of permanent employment status of employee

2.3                     Application Process

2.3.1                               For more information on the SAFT and how to apply to the SAFT, businesses
                                       need to contact their bank as each banking institution has their own process
                                       for applying to the SAFT.

 

 

3.          The Sukuma Relief Programme (“SRP”):

The SRP provides financial assistance and aid for SME’s negatively impacted by the COVID – 19 pandemic. The Rupert family and Remgro Limited have pledged an amount of R1 billion to the SRP.

For the time being, the SRP is temporarily closed due to the SRP having reached its capacity. There is a possibility of the SRP re – opening and as such, we suggest that businesses visit the SRP’s website periodically for updates and to view the qualifying criteria and how to apply.

3.1                     Application Process

3.1.1                               More information on the SRP and how to apply can be viewed on the SRP’S website at https://finance.businesspartners.co.za

4.          COVID-19 Temporary Employer / Employee Relief Scheme (“TERS”):

COVID-19 TERS is a separate fund from the Unemployment Insurance Fund (UIF) and is applicable to employers who are financially distressed and are unable to pay the salaries of their employees during the lockdown. TERS is available to employers who are required to close their doors for a period of 3 months or less due to the lockdown. Only employers may apply to TERS.

If shorter hours are implemented by an employer due to the lockdown or if the employer cannot obtain assistance from TERS, UIF must be claimed by the employee.

Salary benefits will be capped at a maximum amount of R17 712, 00 per month, per employee and an employee will be paid in terms of the income replacement rate sliding scale (38 % -60 %) as provided in the UI Act. Employees are not guaranteed the amount of R17 712 per month however and this amount is merely the maximum amount that may be paid out for an employee. The benefit will be subject to a calculation and a replacement rate sliding scale which is anything between 38% to 60% of the employee’s current income, which is capped.

Should an employee's income determined in terms of the income replacement sliding scale fall below the minimum wage of the sector concerned, the employee will be paid a replacement income equal to the minimum wage of the sector concerned.

4.1                     Supporting documents

4.1.1                               The employer must send an e-mail to covid19ters@labour.gov.za and the employer will receive all the required documents and templates needed to apply. The following documents need to be completed and submitted:  

4.1.1.1                                        Letter of Authority on an official company letterhead granting permission to
                                                   an individual specified to lodge a claim on behalf of the company

4.1.1.2                                        MOA (completion of the agreement between UIF, Bargaining Council
                                                   and Employer)

4.1.1.3                                        Prescribed template that will require critical information from the employer

4.1.1.4                                        Evidence/payroll as proof of last three months employee(s) salary(ies)

4.1.1.5                                        Confirmation of bank account details in the form of certified latest
                                                   bank statement.

4.2                     Application process

4.2.1                               The employer must submit all the required documents to the UIF via the
                                       dedicated email address: Covid19UIFclaims@labour.gov.za

5.          The Business Growth / Resilience Facility:

This facility is for SMME’s who wish to take advantage of supply opportunities resulting from the COVID-19 pandemic and the shortage of goods in the local market.

 

5.1                     Qualifying criteria:

5.1.1                               The business must have been registered with CIPC as at 28 February 2020;

5.1.2                               The business must be 100% owned by South African Citizens;

5.1.3                               Employees must be 70% South Africans;

5.1.4                               Be registered and compliant with SARS and UIF;

5.1.5                               Priority will be given to businesses owned by Women, Youth and People
                                       with Disabilities.

5.2                     Supporting documents:

5.2.1                               CIPC Registration Documents;

5.2.2                               FICA documents (e.g. Municipal accounts, letter from traditional authority);

5.2.3                               ID Copies of Directors/ members;

5.2.4                               3 months Bank Statements;

5.2.5                               Latest Annual Financial Statements or Management Accounts not older than
                                       three months from date of application;

5.2.6                               Business Profile;

5.2.7                               6 months Cash Flow Projections – where applicable;

5.2.8                               Relevant Industry Certification – where applicable;

5.2.9                               Estimations for funding requested.

5.3                     Application Process:

5.3.1                               For non-compliant Micro businesses, SEDA will assist the business to comply.
                                       A request for assistance must be sent to: growthfund@seda.org.za;

5.3.2                               Registration on https://smmesa.gov.za/

5.3.3                               Complete the online application form available from
                                        www.dsbd.gov.za; www.sefa.org.za: www.seda.org.za

 

 

 

6.          Tourism Relief Fund (“TRF”):

The TRF provides once-off capped grant assistance to SMME’s in the tourism value chain to ensure their sustainability during and post the COVID-19 Pandemic and lockdown. The grant funding is capped at R50 000 per entity.

 

6.1                     Categories eligible to apply for the TRF:

6.1.1                               Accommodation establishments: Hotels; Resort properties; Bed and
                                       Breakfast (B&B’s); Guest houses; Lodges and Backpackers.

6.1.2                               Hospitality and related services: Restaurants (not attached to hotels); 
                                       Conference venues (not attached to hotels), Professional catering; and Attractions.

6.1.3                               Travel and related services: Tour operators; Travel agents; Tourist guiding;
                                       Car rental companies; and Coach Operators.

6.2                     Categories excluded from applying for TRF:

6.2.1                               Fast food and take away restaurants, nightclubs, bars, gaming and gambling venues.

6.2.2                               Franchised restaurants and those attached to tourism facilities.

6.2.3                               Establishments wholly or partially owned by Government. 

6.3                     Qualifying criteria:

6.3.1                               Proof of valid registration with CIPC;

6.3.2                               The business must be an Exempted Micro Enterprise (EME) denied in terms of the
                                       Amended Tourism B – BBEE Sector Code, 2015

6.3.3                               Must have a valid tax clearance certificate or PIN;

6.3.4                               Proof of compliance with the minimum wage requirements;

6.3.5                               Proof of UIF registration for employees employed by the business;

6.3.6                               Must be an existing tourism-specific establishment as outlined in the
                                       scope of application (suppliers and intermediaries are not eligible)

6.3.7                               Must be in existence for at least one business financial year

6.3.8                               Proof that the relief is required as a result of the impact of COVID-19.

6.4                     Supporting documents:

6.4.1                               Complete application form.

6.4.2                               Registration certificate issued by CIPC.

6.4.3                               Certified ID copies of Directors/members.

6.4.4                               Six months bank statements. 

6.4.5                               Latest annual financial statements – Income, Cash flow statements and statement
                                       of financial position.  

6.4.6                               Business profile – 2 to 5 pages maximum.

6.4.7                               Relevant industry certification – depending on the business focus area.

6.4.8                               Latest UIF/U-filing contribution certificate.

6.4.9                               Indicate the intended use of the resources – budget breakdown (to be adhered
                                       to in the expenditure).

6.4.10                            Grading certificate or proof of application to be graded (where applicable)

6.4.11                            Certificate of B-BBEE or Affidavit.

6.4.12                            Tax clearance certificate or PIN.

6.4.13                            Medical certificate for people with disabilities where applicable.

6.5                     Application Process

6.5.1                               SMMEs can submit funding applications by completing a form accessible online
                                       at the following website address or by email at covidrelief@tourism.gov.za:

https://www.tourism.gov.za/Pages/COVID19TOURISMRELIEFFUND.aspx        

7.          Tax measures:

7.1                     The following relief tax measures are available during the COVID-19 Pandemic:

7.1.1                               The expansion of the Employment Tax Incentive (ETI);

7.1.2                               Employees’ Tax Deferral of 20% of an employer’s total employees’ tax liability; and

7.1.3                                Provisional Tax Deferral of 35% of a taxpayer’s provisional tax liability.

7.2                     Requirements:

7.2.1                               There are two set of requirements that apply to both employees’ tax and provisional tax. 

7.2.2                               The first requirement is as follows:

7.2.2.1                                        A taxpayer who is conducting a trade with a gross income of 50 million or
                                                   less for the year of assessment the period payment is being made for
                                                   relates to; and

7.2.2.2                                         The gross income must not include more than 10% of income derived
                                                    from interest, dividends, foreign dividends, rental from letting fixed
                                                    property and any remuneration received from an employer.

7.2.3                               The second requirement is:

7.2.3.1                                        The taxpayer must be fully tax compliant; and

7.2.3.2                                        An additional requirement for PAYE and ETI is that employers must
                                                   have been registered as an employer with SARS by 1 March 2020 to be able
                                                   to qualify for these tax reliefs.

 

OUR OPINION

As we have already seen, certain of the aforesaid funds have already reached capacity with two more weeks to go before the lockdown is expected to be lifted. In this regard, we anticipate that most of the above funds will be at capacity.

It remains to be seen how easily accessible and reliable the aforesaid funds are and whether the funds and measures which have been put into place, will be enough to curb the likely economic impact that the lockdown will have on South Africa. That said, we encourage our clients to stay safe and to ensure the safety of their employees during the lockdown by utilising the aforesaid funds (where possible) and measures to assist them financially during these unprecedented times. 

For more information and assistance with applying to the aforesaid funds, please contact Anthony Spellas at SLKB Inc.



LOCKDOWN REGULATIONS – a case of state power by ministerial directive

 

 

 

The Covid-19 State of Disaster lockdown regulations were amended three times within a week, in what government shares seems to be a learning curve. But some amendments highlight contestation between securocrats and constitutionalists in the Cabinet. The question must be raised: will lockdown governance by ministerial directive and regulation be the new normal?

That the initial State of Disaster regulations included a wholesale indemnity for security forces, from soldiers and police to traffic officers, was the first signal securocrats were making a play for control.

Regulation 11E came as a surprise to many in government circles as this indemnity provision was not in the regulations sent for appraisal to the state’s lawyers. Such indemnity may well be unconstitutional: Section 37 of the Constitution prohibits indemnity for anyone in the state even during a State of Emergency.

Passing the draft regulations over legal eyes had been a check and balance as those regulations were drafted by NatJoints, the National Joint Operations and Intelligence Structure, which on the back of a Cabinet memo brings together police, military and state security in a structure that does not account publicly.

It’s not clear how the indemnity provision slipped into the regulations that were signed off by Co-operative Governance Minister Nkosazana Dlamini-Zuma on 25 March.

 



Daily Maverick is reliably informed the justice department stepped in – and the wholesale security force indemnity provision was deleted from the amended regulations published on 26 March.

Similarly, the justice department also stepped in over the initial, and very broadly phrased, track-and-trace regulations published on 26 March 2020 by Communications and Digital Technologies Minister Stella Ndabeni-Abrahams.

According to those communications regulations, mobile network operators must “provide location-based services in collaboration with the relevant authorities identified to support designated departments to assist and combat the spread of Covid-19”.

Justice Minister Ronald Lamola announced the revised 2 April track-and-trace Regulation 11H at a general Covid-19 ministerial update briefing that day.

Key checks and balances include a Covid-19 designated judge – retired Constitutional Court Judge Kate O’Regan was appointed – to whom the health director-general must report weekly. That judge also can make recommendations “regarding the amendment or enforcement of this regulation in order to safeguard the right to privacy”.

Now the health director-general is the only person who may request location and movement information from mobile network providers of “any person known or reasonably suspected to have contracted Covid-19”, and those “known or reasonably suspected to have come into contact” with a confirmed Covid-19 patient.

While this can be done without the person concerned being informed, the health director-general must within six weeks after the State of Disaster ends, “notify every person whose information has been obtained… that information regarding their location or movements was obtained.”

Importantly, the time period for such requests is clearly tied to the Covid-19 public health emergency: from 5 March 2020 to the date on which the national State of Disaster ends. 

And it’s clearly stated: “Nothing in this regulation entitles the Director-General: Health or any other person to intercept the contents of any electronic communication.”

That the State of Disaster regulations were fundamentally amended – twice – represented crucial wins for the constitutionalists. Such changes are a weathervane of the balance of power within Cabinet and the exercise of power by the state. And how power is exercised by the state is fundamental to the character of South Africa’s democracy.

Regulations, like the related ministerial directives, are done behind closed doors with no consultations, and are equivalent to legislation that is binding.

 



Regulations are commonly called secondary laws. But Parliament at best has a limited role regarding regulations, as only in specific circumstances do regulations like those for the Critical Infrastructure Act come before it for scrutiny. This means that, unlike lawmaking with its public hearings, consultations and input, alongside scrutiny of MPs from various political parties, ministerial regulations are done potentially at ministerial whims.

According to an official statement dated 5 April, Parliament has decided its committees have “the necessary powers” to deal with lockdown oversight, leading to the decision by Deputy Speaker Lechesa Tsenoli to decline DA interim leader John Steenhuisen’s request for a dedicated ad hoc committee on the State of Disaster lockdown.

While in a further statement, Parliament on 6 April said it was exploring work means like virtual committee meetings, that statement also argued:

“… holding such meetings, specifically to conduct oversight over implementation of the lockdown regulations, may require the executive to attend briefings. This could risk taking them away from their extremely critical function of managing measures to combat spread of Covid-19 and preserving life.”

Over the past 10 days, parliamentary committee chairpersons from health, police to small business development have issued statements about the State of Disaster.

Broadly speaking, these welcomed ministerial directives and measures. Just one, jointly issued by police and defence, noted with concern various reports on security forces power abuses. 

“Both committees re-emphasis the call made by the Commander-in-Chief [President Cyril Ramaphosa] that the police and soldiers must act at all times with compassion and within the confines of the law.”

By week two of the State of Disaster, the police watchdog, the Independent Police Investigative Directorate (IPID), was investigating eight deaths linked to police alongside at least 30 other complaints, including assault.

And on Tuesday 7 April, police at the Cape Town Magistrate’s Court barred the media from attending the court appearance of Stephen Birch for disseminating fake news on social media.

 



The lockdown regulations permit the media, as one of the interested parties, to attend court proceedings. Yet, a policeman captured on video locked the door to the courtroom and prevented journalists from entering.

Justice spokesperson Chrispin Phiri described the incident as “extremely concerning, especially because the regulations expressly permit the media to be present in court”. And the role of the media was even more important during the lockdown.

“We will be conducting an investigation to establish the facts around this incident. To the extent that barring of the media in this matter was as a result of a court administration process, corrective measures will be taken,” said Phiri.

Right from the start, Police Minister Bheki Cele adopted a posture of kragdadigheidPolice Minister Bheki Cele clenches the iron fist, with no velvet glove. He’s deflected questions about such incidents at one of the Covid-19 ministerial updates, arguing that one death was caused by a heart attack, according to the post-mortem, while another did not involve SAPS but Ekurhuleni metro police.

“I have not seen any brutality, just one officer I saw using a sjambok,” Cele is quoted as saying by the City Press: Bheki Cele: ‘I wish alcohol ban could be extended beyond lockdown’.

Of course, adult whipping goes back to apartheid when it was imposed as a criminal conviction punishment overwhelmingly on black South Africans. For the past 25 years or so, such whipping has been unconstitutional.
The contestation between securocrats and constitutionalists at the highest level of government is also borne out in other amendments.

 



While the State of Disaster regulations were initially drafted by NatJoints and would reflect the law and order priorities of soldiers, police and other security forces, practical day-to-day life issues have now tilted the balance.

Taxi ranks and bus depots were closed, but taxis and buses still had to transport essential services workers and be operational during social grant collections days and so, times and taxi load capacity were amended three times.

Travel between municipal districts and across provincial borders was prohibited – until the impact of cross-provincial migration was brought home by the need to bury loved ones elsewhere. The restrictions were eased on the back of strict conditions such as permits endorsed by magistrates.

But to portray what is unfolding as a dualistic dynamic between securocrats and constitutionalists would be somewhat simplistic. Underneath all this seems to be a push to enact policy measures that the government had previously failed to implement, be it through inability or incapacity.

The ban on alcohol which Cele enthusiastically supports, and cites as a key reason for a drop in crime, obscures the fact that for 26 years the SAPS has failed to enforce the law and close down illegal shebeens, taverns and liquor outlets.

That failure to enforce the law comes even as the SAPS has publicly acknowledged for years that crime spikes from Friday nights, predominately at taverns. Some annual reports show nuts and bolts details of this.

So, put differently, the booze ban under the State of Disaster regulations is doing the job of the police for the police.

And on the governance and policy front, still gathering dust in a Cabinet drawer after some four years are the amendments to the liquor legislation. That 2016 draft Liquor Amendment Bill, reissued in 2018, aimed to raise the drinking age to 21, up from 18, ban booze advertising, and prohibit liquor outlets within 500m of schools and places of worship.

 



The bill got stuck in the legislative pipeline, somewhere between competing interests and elections. It’s not the only one.

Extraordinary times like the Covid-19 pandemic require exceptional measures. Of that, there is no doubt. And regulations have been part of South Africa’s speedy response to the public health emergency.

But it’s not an easy scenario: regulations are entangled in the tussle between securocrats and constitutionalists, and implementation is not as straightforward as it seems amid such contestation.

Against the backdrop of a state sharply criticised for its delivery failures, it would be tempting for the state to try and retain these exceptional Covid-19 State of Disaster powers of governance by ministerial directive and regulation.

South Africa’s post-lockdown democracy will be shaped by who ultimately prevails – and on what terms. DM
SOURCE: DAILY MAVERICK (Marianne Merten)
https://www.dailymaverick.co.za/article/2020-04-08-lockdown-regulations-a-case-of-state-power-by-ministerial-directive/

 

OUR OPINION : CONTRA VIRUS OR ULTRA VIRES?

“Our state and our civil society are no monolithic entities or beings: Nothing is ever entirely good or benevolent, and neither is it entirely bad or evil. In times like these, one of the very important features of our democratic system, the checks and balances of powers is unhinged: parliament has no oversight over the actions of the government and the mighty pen of journalism is also very much in house arrest. Therefore, more than in “normal” times, it depends on the individuals, on every single one of us, to be mindful of this when we engage with this current COVID 19 situation.

Whilst the ends, in this case the prevention of infections with COVID-19 on an even larger scale, might justify the means, our current lockdown, to a certain extent, we should all remain vigilant and procure that the wheel will eventually be turned back again. The protection of life might justify the severe restrictions of our basic human rights and freedoms for now, but we as civil society should not accept this current state indefinitely.”

 



THE CHALLENGES AND PITFALLS faced with DEBT COLLECTION



This is because over time a debtor may move premises, may change contact details and in most cases will close down.

Thus, time is of the essence when chasing bad payers as the sooner you start, the more likely you are of success and the quicker you will recover your funds.

The second challenge is cost. For many South African companies or individuals, the cost of litigation is simply unaffordable.

The third challenge is recoverability. After all the time and costs incurred, a judgment must still be executed, meaning that sufficient assets must be found to satisfy a judgment - this is supposing that there are assets available. If no assets are found, or the debtor cannot be located, tracers are required to locate assets or the debtor, in order to enforce the judgment. This process in itself will have its own costs applicable to it and will likewise take more time, depending on the amount of time and type of searches that are required to execute the judgment. If all these processes yield no result, then one must resort to liquidation in the case of companies and sequestration in the case of individuals.

For these above reasons, the following are very important:

  1. Accurate age analysis: an accurate age analysis is crucial for any business to monitor where its risks lie and must be continuously monitored. By close monitoring of the age, one is able to manage this risk and stop further work or orders being delivered to non-paying customers.
  2. Documentation (accurate and up to date): documentation is crucial to proving a claim and in execution of money judgment: Firstly, the onus of proof is on you to prove your claim against a debtor, therefore you must ensure that your documentation is in order and up to date. Secondly, the documentation is not only required to prove your claim, but also for the execution process in order to be able to locate the debtor and his assets.

Thus, it is important to ensure that when entering into a relationship with a customer that all documents and information required is obtained upfront.

There are so many issues that can and should be resolved upfront in order to curtail the litigation process and deal with the issue of costs. For example, you can agree with your customer upfront, that in the event of non-payment – that the debtor will pay legal costs on a higher scale – i.e. the attorney and client scale. This will allow a successful claimant to recover the bulk of its legal costs from the debtor and not be limited to the court’s tariff.

Whilst collecting the information of the customer, it is important to agree to the terms and conditions applicable. The T’s and C’s will set the rules of the game and provide added security which is useful during the debt collection process.

KYC – KNOW YOUR CLIENT. Banks, attorneys, car dealerships etc. are all forced to collect certain documentation from their clients before providing services or selling goods to those customers. When this practice first started, people thought it was a bad thing, something that would cost them in terms of attorneys, time and resources, however, to their surprise, this had the opposite effect. It places the obligations on us to collect sufficient information from our clients before doing any work. It forces us to conclude agreements with client upfront – and that is something we all should be doing. Know your customer before providing services or before selling products.

It can be done in every business and it should be applied in your business.

Thus by applying strict rules in your business to collect detailed information about your customer at the moment of entry, coupled with concluding written terms of contract and regular scrutiny of your debtor’s age analysis, could save your business time and money when customers fail to pay.

SLKB have the necessary expertise and are happy to provide professional assistance in the above.


Fernando Lengert
082 876 5387
frl@slkb.co.za

 

 



DECEASED ESTATES: What happens when we die?



 

So, what happens to your “things” when you die? The estate of the deceased person is administered in order to bring finality to that person’s affairs and is governed by South African laws of succession and the Administration of Estates Act.

 

Who inherits / Who is the Executor?

By preparing a Last Will and Testament, the Testator will be able to determine beforehand, who receives what and how.

 

Intestate Succession

If a person dies without a valid Last Will and Testament, the rules of intestate succession regulate the manner in which your assets are shared amongst your spouse, children, parents, siblings or other relatives.

In this case, the heirs will nominate a person to act as Executor.

 

Testate Succession

Alternatively, a person may leave a Last Will and Testament, which is essentially a document setting out the Testator’s last wishes.

By preparing a Last Will and Testament, the Testator will be able to determine beforehand, who receives what and how much and who shall be the Executor, the person winding up your estate (more on this later). This is called the principle of freedom of testation and South African law has a very high regard to the Testator’s wishes, invalidating only very few determinations made by a Testator prior to death.

 

The Administration Process

In South Africa, when you die, your estate becomes a deceased estate and is commonly referred to as an estate late and unlike in some other jurisdictions, a person referred to as an Executor will take control of the assets of the deceased person.

The Executor will gather the necessary documents and in most cases, report the estate to the Master of the High Court (the administrative office who oversees the administration of estates and to whom the Executor is accountable) in order to obtain letters of Executorship which will allow him to administer the estate.

The Executor will take control of all assets of the deceased and establishes the liabilities of the deceased, in the process notifying banks, insurers, stockbrokers, bond holders, to mention a few, of the death of the deceased. If these institutions haven’t yet received notification of the death from the Department of Home Affairs, they will at this stage usually place a hold on these accounts to avoid any further transactions until the funds are paid into an estate late account under the control of the Executor.

The Executor will need to advertise his appointment in order to afford creditors the opportunity to submit claims and will ultimately draw up a liquidation and distribution account, detailing the assets and liabilities of the deceased. This account will determine inter alia whether there is enough liquidity in the estate to meet its obligations, whether a cash shortfall is payable by the heirs, whether assets need to be sold and whether estate duty or other tax is payable. The said account is submitted to the Master for approval and lies open for inspection by the public. If no objections are received, the Executor may then proceed to pay the creditors and heirs of the estate and attend to the transfer of any property.

Winding up an estate generally contains a myriad of administrative tasks, with the average estate taking, in the best case between 8-13 months to be finally administered.

 

Who can be an Executor and what does an Executor get paid?

The Master will generally appoint an Executor who has the requisite specialist knowledge. Where a family member is appointed, an agent (attorney/accountant/fiduciary service provider) will generally be required to assist the family member.

By nominating an Executor, especially a professional, it is much less likely that delays will occur with the administration of your estate.

As remuneration for the Executor’s work done, an executor’s fee is payable out the estate. Drafting a Last Will and Testament, allows the Testator to nominate an Executor(s) and waive security required to be furnished to the Master in the performance of the Executor’s functions. Without a Last Will and Testament, this will be subject to determination by the Master.

For the above-mentioned reasons, a valid Last Will and Testament is fundamental in the administration of deceased estates as it allows for the mitigation of unnecessary delays and the holistic planning of your estate. We at SLKB believe that great care should be taken in the preparation of a valid Last Will and Testament.

As already discussed, the winding up of an estate is administratively intensive and requires specialist knowledge and experience. We strongly suggest that an attorney familiar with the laws of succession, wills and administration of estates assist in the winding up process.

SLKB have the necessary expertise and are happy to provide professional assistance in the above.
Ryan Bouwer & Jean Kuebler