Kruger & Co – Page 2

Mar 02

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Choose Your Conveyancer with Care! A Cautionary Tale of “Fraud Unravels All”

By Kruger & Co | Property

Buying and selling a house is probably one of the most important financial transactions you will ever be involved in. Not to mention the emotional aspect of acquiring or letting go of your “home sweet home”.
This is why it’s vital to choose the right conveyancer. Case in point, a recent court battle which saw a couple losing ownership of what they had fondly believed to be their new house. A crooked attorney, in cahoots with her trustee husband, had defrauded both the original owner and the buyers at the end of the transfer chain. And in law, “fraud unravels all.”

Effective 1 March 2026: New National Minimum Wage

By Kruger & Co | Employment and Labour Law

The National Minimum Wage (NMW) for each “ordinary hour worked” has been increased from 1 March 2026 by 5% from R28,79 per hour to R30,23 per hour.

Domestic workers: Assuming a work month of 22 days x 8 hours per day, R30,23 per hour equates to R241,84 per day or R5320,48 per month. Of course, this is just the bare legal minimum. The Living Wage calculator will help you check whether you are actually paying enough to cover a household’s “minimal need” (adjust the “Assumptions” in the calculator to ensure that the figures used are up-to-date).

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

Jan 27

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Love and the Law: Cohabiting? Get Your House in Order Now

By Kruger & Co | Family Law, Property

“All you need is love… and a good lawyer.” (Anonymous)

February, with its Valentine’s Day chocolates, roses and declarations of undying love, should be a month for romance, not legal niceties. But in the real world, love and the law are inextricably linked because any relationship’s structure and consequences are inevitably governed by legal principles. Losing sight of that can expose you to unnecessary angst, dispute, and litigation.

A recent High Court fight between an estranged couple over their jointly-purchased dream house illustrates this neatly.

Broken dreams, and a fall out over the house

A couple’s four-year romantic relationship saw them living together first in her mother’s house and then in his apartment. They then decided to buy a house together with the idea of making their relationship more permanent.

Unfortunately, that dream came to nought – their relationship ended a month after the property purchase, leaving only one of them to live in the house and to pay all the ongoing costs while they decided what to do next.

In due course they fell out over how to end the co-ownership and how to adjust their respective claims for past and future property costs.

Their dispute reached the High Court, which ordered firstly that the co-ownership be terminated. This was necessary, because no co-owner can be forced against their will to remain a co-owner where the relationship between the co-owners has deteriorated to such an extent that it can’t continue.

Then, using an old Roman law remedy still in use today (the “actio communi dividundo”) the Court dealt with both the division of the property, and the adjustment of the various financial claims between the parties. As is usually the case, these were complex and intertwined after years of cohabitation.

Importantly, the Court noted a modern move away from the traditional principle that the property should necessarily be sold by public auction to the highest bidder, towards a much more flexible approach based on the Court having a wide discretion to ensure a fair and practical outcome in each case.

Thus, having considered all the circumstances, wishes and claims of both parties, the Court ordered that the ex-partner living in the house has a first option (valid for 60 days) to buy the other’s half share at valuation. If he doesn’t, he must offer it for sale on the open market at a fair and reasonable market-related price. If there’s still been no sale after 6 months, the Sheriff of the High Court becomes a “receiver and liquidator” and has 4 months to auction the house. The bond, costs and parties’ related financial claims will be settled from the proceeds as directed by the Court.

“Co-ownership is the mother of dispute” – But it needn’t be

“Co-ownership is the mother of dispute” (“communio est mater rixarum”) is another old Roman law concept mentioned by the Court. It confirms that joint ownership has always, since ancient times, inherently provided fertile ground for instability and dispute.

But that needn’t be so. An upfront agreement between joint owners, whether their arrangement is grounded in a commercial or a personal relationship, can hugely reduce the risks of later uncertainty, disagreement and litigation.

Put as much detail into your agreement as you can, including a detailed process of how to end your co-ownership if required. Litigation – with its delay, expense, and uncertain outcomes – should never be embarked on lightly. As the Court wryly quoted from a previous decision, “a court cannot perform miracles”. It will of course do its best to craft the fairest possible outcome for both parties, but avoiding the dispute altogether is always a better option for everyone involved.

P.S. Don’t forget your cohabitation agreement

As a final thought, if you are living with your life partner, you should have a full cohabitation agreement to cover not only your co-ownership arrangement, but also all the other financial and personal aspects of your relationship that would normally be governed by our marriage laws.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

Jan 27

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How to Protect Your Business’ Brand from Copycats

By Kruger & Co | Intellectual Property

“You know you’re winning when you’re being copied.” (Robin Sharma, author of The Monk Who Sold His Ferrari)

Whether your business is brand new or well established, you need to protect your trading, product and service names from being unlawfully copied. Often your names (and associated logos and other branding) are essential elements in your business’ goodwill and profitability. It can be disastrous if competitors adopt similar branding in order to confuse customers and divert business away from you.

Your strongest protection will always be in the form of a registered trade mark, but don’t despair if you don’t have one – our laws still provide protection through the “passing off” concept.

A recent Supreme Court of Appeal (SCA) judgment provides a perfect example.

“Logic” and “Logik”: Similar names, confused marketplace

The opposing sides in this saga are Fire Logic (Pty) Ltd t/a “Fire Logic”, and Logik Group Africa (Pty) Ltd t/a “Fire Logik” (the company itself was previously Fire Logik (Pty) Ltd). Both operate in the same industry (fire protection and safety systems): Fire Logic since 1994 and Fire Logik since 2015.

In 2021 Fire Logic applied to the High Court to interdict Fire Logik from continuing to trade under that name. Logik Group denied any wrongdoing, but the High Court granted the interdict and the SCA confirmed it on appeal.

To understand that outcome, let’s have a look at the law underlying it.

What is “passing off” and how do you prove it?

To succeed in a claim for passing off, you will have to prove three elements:

Reputation or goodwill in your product or brand. That was easily proved here by Fire Logic with its long track record.
Misrepresentation by the other party’s actions causing, or reasonably likely to cause, confusion and deception among consumers. Unsurprisingly, given these names being pronounced identically and with only one letter’s difference between them, the Court found there to have been significant market confusion between the two businesses – such as misdirected purchase orders and misleading Google searches.
Damage, or a likelihood of damage, to your reputation or goodwill flowing from misrepresentation. Again, this was easily proved in this case by Fire Logic given its trading history.

The core question is a factual one, to be answered in light of all the circumstances of each case: Is there a reasonable likelihood that members of the public may be confused into believing that the business of the one is, or is connected with, that of the other?

How best to protect your brand and goodwill?

A registered trade mark will always be your best and strongest protection, and although registration doesn’t come cheap, the cost could well be justified when you consider the alternative – having to apply to the courts for redress.

If you have no registered trade mark, and must rely on passing off provisions for protection, maximise your chances of success with these tips:

Ensure that your trading names are reflected in all your registered company names, domain names, websites, social media channels, marketing channels, letterheads, email signatures, legal documentation and so on.
Keep proof of when and how you first started using each of your trading name/s – length and depth of use by each party will be a factor in these cases.
If you want countrywide protection, you must build up a track record in all provinces. In this case the interdict was confined to only the two provinces (Eastern and Western Cape) in which Fire Logic had built its reputation.
Be ready to prove the goodwill in your brand. How well known are you? What track record have you built up under the name/s in question? What market share do you have?
Be ready to show a “reasonable likelihood” that members of the public will be confused into believing that your competitor’s business is, or is connected with, yours. Keep detailed notes of all actual instances of confusion between the two businesses.
Take legal advice and action at the first sign of any competitor using a name that may cause your businesses to be confused with each other. Delay in enforcement could harm your case!

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

Jan 27

0

Parking Disputes and the “Reasonable Neighbour” Test

By Kruger & Co | Property

“Wouldn’t it be nice to get on with me neighbours?” (from “Lazy Sunday” by Small Faces)

Maintaining friendly relations with the neighbours, or at least an “I’ll ignore you if you ignore me” sort of neutrality, has probably been a primary aim of homeowners since the dawn of history. No doubt even our cave dwelling ancestors were as keen to get on with the Joneses next door as they were to keep up with them. But as we all know, it’s not always easy.

A recent High Court fight over parking rights is unfortunately pretty much par for the course when it comes to neighbourly relations deteriorating into open conflict, both inside and out of the courtroom.

“You can’t park here!” “Yes, we can!”

The setting for this fight: Higgovale, a small and affluent suburb on the slopes of Table Mountain in Cape Town. In one corner: a couple with the right to access their garage using a servitude road. In the other corner: the neighbours, alleged to have impeded the couple’s garage access by parking in the road.

At the heart of the dispute: the road servitude. Servitudes involve a balancing act between the right of the “dominant owner” to exercise the servitude and the right of the “servient owner” to have the servitude exercised in such a way as to impose the “lightest burden” on their property. The tensions inherent in such a relationship can easily escalate into conflict – exactly what happened here.

The garage-owning couple’s initial stance was to ask the Court for a blanket interdict against all parking by the neighbours in the road, but they later softened that to ask only for an order against their garage access being obstructed.

The Court had no hesitation in ordering that the neighbours “are interdicted and restrained from parking vehicles on the servitude area at … Higgovale, in such a manner as to unreasonably obstruct the applicants from entering and exiting their property and exercising their right of way.”

In doing so, the Court took the parties to task for failing to settle their dispute out of court, and urged them “to engage with each other in a manner that promotes the spirit of ubuntu, and the constitutional vision of a caring society based on good neighbourliness and shared concern” (emphasis supplied), and to consider demarcating parking bays in the road as a short-term solution.

The parties now have to pay their own costs (except for the costs of one interim application), and they’re effectively back to square one: having to engage with each other to try to find a fair solution.

What’s a “reasonable neighbour”?

Per the Court (emphasis supplied): “While the common law requires that neighbours act reasonably, the Constitution shows what a reasonable neighbour looks like. She is not only concerned with advancing her own private interests but cares also for the needs of her neighbours. She seeks mutually beneficial solutions. The mindset of the reasonable neighbour is one of collaboration, not competition. She sees herself not as an isolated individual, but a partner in an interdependent community of persons, all of whom are to be respected and valued.”

First prize: Settle!

Courts want us to settle these sorts of disputes in that collaborative spirit, without recourse to law. But if a friendly discussion over a cup of coffee doesn’t resolve the situation, more robust action might be unavoidable – we’re here to help if you need us.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

Jan 27

0

Workplace Sexual Harassment: It’s the Victim’s Perspective That Counts

By Kruger & Co | Employment and Labour Law

“Sexual harassment is the most heinous conduct that plagues the workplace.” (Extract from the judgment below)

Our courts have no tolerance for sexual harassment in the workplace, stressing that, at its core, it is concerned with power dynamics at work.

A recent Labour Court decision has confirmed that in assessing whether or not an employee is guilty of such harassment, it is the victim’s perspective that must lie at the heart of the enquiry. Victims will take heart from this decision, while employers and other employees should understand clearly the dangers of not heeding it.

Manager fired after inviting an employee to sit on his lap

A bank manager was found guilty of two counts of gross misconduct in respect of:

Sexual harassment: Allegations of inappropriate, unwelcome comments towards a female employee, which she said continued despite her asking him to stop.These comments were about her hair, clothing and appearance, such as “you are so beautiful”, “you are so stunning”, and “black looks good on you.” Most tellingly perhaps, he suggested that she sit on his lap when he was taking employee temperatures as part of a Covid screening process. All conduct that, she said, upset and offended her.
A harassment allegation of slamming a metal recycling bin lid to frighten her.

The manager denied all these allegations but was found guilty and summarily dismissed. He approached the CCMA (Commission for Conciliation, Mediation and Arbitration) where the arbitrator, deciding that the employee was untruthful and that no harassment had been proved, held that the dismissal was substantively unfair and awarded the manager R400k in back pay.

The bank took this decision on review to the Labour Court, which reversed the finding and confirmed the manager’s dismissal.

Let’s have a look at the Court’s reasoning.

Firstly, what exactly amounts to “harassment” and “sexual harassment”?

In general terms:

Harassment is unwanted conduct which impairs dignity, which creates a hostile or intimidating work environment for one or more employees, and is related to prohibited grounds of discrimination like race, gender, or disability.
Sexual harassment refers to persistent, unsolicited, and unwanted sexual advances or suggestions by one person to another. The “Code of Good Practice on Sexual Harassment” sets out guidelines for identifying and handling such cases.

The victim’s point of view is critical

The Court in deciding to confirm the manager’s dismissal commented that sexual harassment is heinous conduct. As it goes to the root of one’s being, it must be viewed from the victim’s point of view, how the victim perceived it and whether or not that perception is reasonable.

In this case, held the Court, the employee’s evidence was supported by the probabilities and was more credible than her manager’s version. He was accordingly guilty of the charges of harassment and sexual harassment, his employer could not fairly have been expected to continue the employment relationship with him, and his dismissal was fair.

Victims will take heart from this outcome, and it’s a warning to both employers and other employees to view all workplace conduct from the perspective of those on the receiving end.

Perhaps a good way of looking at it could be this: Might the recipient of a “compliment” or other “innocuous” conduct reasonably construe it as inappropriate and unwelcome? If so, employers have a duty to act, and perpetrators are in trouble.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

Jan 06

1

Your Top 10 (Legal) New Year’s Resolutions for 2026

By Kruger & Co | General Interest

“My New Year’s resolution is to stop procrastinating. I’ll start tomorrow.” (Anonymous)

Most New Year’s resolutions are vague, unwritten, and destined to be forgotten in the first week of January’s hustle and bustle.

But please don’t neglect this Top Ten list of legal issues that we’ve put together for you. Focus on those that are important to you, taking a few minutes to write down exactly what action you’ll take under each heading. Then set and diarise realistic deadlines to address each item:

Top 10 Legal Issues for 2026
1		Update (or draft?!) your will. Check your executor/s, guardian/s, heirs and beneficiaries. Have there been any life events (marriages, divorces, deaths, births, new relationships, new business ventures, new tax changes, new assets or liabilities or anything else) that call for a change in your will? Should you consider making a foreign will as well as your local one? Update (or consider making) a Living Will/Advance Medical Directive.
2		Revisit your estate planning. Are you still on track with your wealth building, your retirement planning, your corporate, trust and tax planning? Have you prepared and updated a file containing your will and all the other information and paperwork that your executors and loved ones will need when the time comes?
3		Check your property affairs are in order. Make sure that your title deed is safely filed away together with your original purchase documents and receipts, as well as proof of subsequent capital improvements – you’ll need all of these to calculate your CGT base cost when you come to sell. If you’re a landlord or tenant, are all leases current, in order and easily accessible? If you co-own property, do you have an agreement in place laying out what each joint owner’s rights and duties are, who pays what costs and when, and so on? Does it need updating?
4		If you cohabit with your life partner, do you have a full cohabitation agreement in place? Does it need amending or updating? Does it mesh with both of your wills?
5		Review all your contracts: personal, employment, suppliers, clients etc. Have there been any changes in the law or in your circumstances that call for renegotiation or amendment? Are all these contracts compliant with any new legal developments?
6		Review all corporate and tax compliance matters. Are you up to date with CIPC, tax and other returns? Do you need to update your POPIA and PAIA documentation? All the red tape and deadlines out there are as annoying as they are time consuming, but compliance is vital.
7		Make sure you have a disaster/continuity plan in place. This should address risks like cyberattacks, data loss, business disruptors (AI springs to mind), load-shedding, natural disasters, another pandemic – the list is endless.
8		Business and personal insurance. Are you sufficiently covered? Are any changes needed? It’s amazing how easy it is to forget to remove that premium-guzzling e-bike you sold on Marketplace, or to add your expensive new cell phone. Now’s your chance to correct that.
9		Perform a full cybersecurity audit and health check. Check password protection, multi-factor authentication and similar safeguards, email and electronic communication security, defence against malware, phishing, ransomware and the like, staff and family awareness training etc. If you have crypto holdings, double check that they are secure.
10		Anything else? Brainstorm with your family, and with us, everything else that could be important to you.

Step into 2026 secure in the knowledge that all the legal aspects of your life are in order. And remember that we’re always here to help when you need us!

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

Jan 06

0

Property Sales and Side Deals: Verbal Agreements Don’t Cut it!

By Kruger & Co | Property

“With a verbal agreement you have nothing but air.” (Author and entrepreneur Robert Ringer)

2026 opens with positive signals for our property market after last year’s encouraging GDP forecasts, a credit-rating upgrade, and a series of interest rate cuts boosting access to bond finance.

All the signs point to a promising year for buyers, sellers, and homeowners. But a recent Supreme Court of Appeal (SCA) judgment is a sharp reminder that getting the legalities wrong, and in particular trying to rely on verbal promises, could mean a very rocky start to your new year. It’s also a reminder that while co-ownership can be a practical way to access and share property, it must be properly structured. When relationships sour, the fallout – as this case aptly shows – can be severe.

One husband discovered all that the hard way, so let’s learn from his mistakes.

“You can’t evict me, I own half the house!”

The central feature of this unhappy tale is unfortunately an all too common one – a personal relationship gone horribly wrong.

A couple married in 2009 and jointly bought a house in 2015. When the husband hit financial trouble in 2017, and creditors threatened to attach his half share, the couple agreed that the wife would buy him out for R1.2 million. A written Deed of Sale was signed, the transfer went through, and she became the registered sole owner. Unsurprisingly, given the purpose of the sale and transfer, she never actually paid him the R1.2 million purchase price.

When the marriage hit the rocks in 2019, she moved out and he stayed on. They divorced but he refused to vacate, arguing that the Deed of Transfer did not reflect their “true intention”. This, he claimed, was for him to remain a co-owner “until it was less risky”, after which she would give him back his half share.

The dispute landed in the SCA, where the ex-wife insisted that the intention was always that the property would be hers alone.

The SCA held that ownership is a question of law, not a factual dispute to be resolved by choosing between different versions of a story. The Court found that the ex-wife remained the sole owner, and its reasons for doing so provide a clear checklist of principles that every buyer, seller, and property owner should keep in mind.

What the ex-husband got wrong, and how to get it right

Let’s discuss the legal principles that sank the ex-husband’s case:

Don’t rely on a verbal agreement: Although our law makes most verbal contracts binding, there are exceptions. One is that any agreement to sell, exchange, donate, or transfer land (or a right to claim transfer) must be in writing and signed to be valid. That includes any “side deals” intended to vary the terms of the sale agreement. So, even if the Court had accepted the ex-husband’s version, a verbal promise to “give back” a half share would have been void and unenforceable.
Make sure your sale agreement is crystal clear: The Court also found the alleged verbal agreement to be “fatally vague” – a poignant reminder to always record agreements with enough detail to avoid them being struck down as “void for vagueness”.
A non-variation clause is essential: Contracts should state that they may not be changed unless the variation is in writing and signed. This is a great way to protect against uncertainty and dispute. The Deed of Sale here contained such a clause, which made the husband’s purported verbal amendment ineffective. There’s a lesson for us all here: never accept verbal assurances or promises from the other party, always insist on them being properly incorporated into the sale agreement in writing.
The value of a “whole agreement” clause: This clause confirms that the written contract reflects the entire agreement. With it in place, no outside evidence can contradict or add to the document – yet another reason the ex-husband found no joy at the SCA. Make sure that your written sale agreement is comprehensive, with nothing important omitted!
On transfer, “intention to pass ownership” is binding and motivation is irrelevant: The couple in this case transferred ownership intentionally and deliberately, and their personal motives for doing so were irrelevant. Equally irrelevant was the fact that the wife never actually paid the husband the purchase price – all that counted was the intentional transfer of ownership.

Complying with all legal formalities is important whether you are a buyer, a seller or an owner. As always, sign nothing without our advice!

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

Jan 06

0

Electronic Wills Aren’t Valid: Stick to Pen and Paper

By Kruger & Co | Wills and Estate Planning

“Let’s choose executors and talk of wills.” (William Shakespeare in Richard II)

You may have read one of the many online articles about an electronic will being validated recently by the High Court.

Don’t be misled into thinking that electronic wills are now valid as a matter of course – they most certainly are not. Unless and until our Wills Act is updated to say otherwise, not leaving a written and signed will complying with all the Act’s formalities exposes your grieving loved ones to the risk of a hard-fought court battle at the worst possible time.

What makes a will valid?

Only a written, signed will complying with all legal formalities will be accepted by the Master of the High Court. If you leave only a non-compliant will, your loved ones will have to ask the High Court to validate it.

What are these formalities?

You must sign the will on the last page (at the end of the document) in the presence of two witnesses who must also sign as such.
If there is more than one page to the will, you must sign every page. Although it’s not strictly necessary for your witnesses to also sign all the pages, it’s good practice for them to do so.
Your witnesses must be “competent”, that is, at least fourteen years old and mentally competent.
Don’t let any of your heirs or beneficiaries either sign as a witness or write out any part of the will, as that will disqualify them from inheriting.

At this juncture you may be thinking: “But it’s 2026! Aren’t electronic documents and signatures as valid as physical ones?” Nope, unfortunately not when it comes to wills.

ECTA and electronic signatures

The Electronic Communications and Transactions Act (ECTA) says that generally, with only a few exceptions and requirements, electronic signatures and documents are valid and binding. But – and this is critical – it specifically states that they “must not be construed as giving validity to the execution, retention and presentation of a will or codicil [addendum to a will] as defined in the Wills Act.”

In other words, pen and paper are still non-negotiable requirements when it comes to wills.

Which begs the next question. What happens if for some reason your will is found to not comply with these formalities?

What your heirs must prove to overcome non-compliance

Fortunately, the Wills Act does allow our courts to look beyond technical non-compliance so as to give effect to the deceased’s true intentions.

In such cases the heirs will need to prove:

That the document was drafted or executed by the deceased.
The maker of the document must, naturally, be dead.
The person making it must have intended that document to be his or her will.

That’s the law underlying the Court’s decision in this dispute, so let’s see how it all played out in practice.

A bitter fight over two conflicting wills, one written and one electronically signed

The deceased, at the time a Constitutional Court Justice, made a will in 2014. She then made another in 2021.

In both wills, she had named her children, a granddaughter, and her life partner as her heirs and beneficiaries. Critically, in the 2014 will she had left 100% of her Magersfontein property to her life partner. But in the 2021 will she changed that, leaving the property to her children in equal shares.

Perhaps unsurprisingly, the life partner challenged the validity of the 2021 will, and her children and granddaughter in return asked the High Court to instruct the Master of the High Court to accept it as valid.

It became clear that the 2021 will was formally defective in two respects:

All three signatures (those of the deceased and her two witnesses) had been appended electronically
The deceased’s signature was in the wrong place on the document.

Critically, however, the life partner did not dispute the evidence of the two witnesses to the will that the deceased had, after a phone call, emailed them to ask that they append their signatures to the will electronically. He also accepted that the will reflected the deceased’s true intentions and that she had intended it to be her final will.

Finding on this evidence that the deceased had given direct instructions for the drafting of the 2021 will, and that she had indeed accepted that will as her own, the Court instructed the Master of the High Court to accept it as her will.

There’s a very clear lesson for us all here…

Pen and paper rule!

Electronic wills, and electronic signatures on wills, are not automatically valid. The only way to protect your loved ones from all the delay, confusion and cost of a High Court application to get an electronic will condoned is to leave a written, signed will that complies with all the Wills Act’s formalities.

We’re here to help!

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

Jan 06

1

How to Fund Your Divorce if Your Spouse Can Outlitigate You

By Kruger & Co | Family Law

“For what is wedlock forced but a hell, An age of discord and continual strife?” (William Shakespeare in Henry VI Part I)

This article is a balm for anyone unfortunate enough to be stuck in an unhappy marriage full of Shakespeare’s “discord and continual strife”, yet too scared to consider divorce because of the costs. An uncontested divorce in which you agree on everything need not cost much, but it’s a very different story if you know that your spouse will fight you to the bitter end.

The hard reality is that contested divorces can be extremely expensive. But if your emotional trauma is compounded by the fact that your spouse has a lot more money than you and will use that financial strength to intimidate and outlitigate you, don’t despair!

Outgunned? “Equality of Arms” to the rescue

Enter stage left the “equality of arms” legal principle, which is aimed at ensuring that the outcome of divorce litigation is based on the merits of the case, not on one side’s financial dominance.

In other words, our law says that you should have a fair and reasonable ability to present your case without being disadvantaged because your spouse has greater financial resources. To achieve that, as the financially weaker spouse you can ask the court to order your spouse to contribute to your costs, allowing you to access proper legal advice, to negotiate fairly, to resist pressure to accept unfavourable settlement terms, and, if necessary, to proceed to trial.

What factors will the court consider?

The other side of the coin is that it’s not “open season” on your spouse’s wallet. The court will order only a contribution to costs that is reasonable and necessary considering all the factors relevant to each case, typically:

The financial resources of both parties
The level of complexity in the divorce case
The anticipated expenses for proper legal representation

Bottom line: you’re automatically entitled to a contribution. You must show that you are in genuine need given your own financial situation, that your estimated costs are reasonable in relation to the complexity of the disputes between you, and that your spouse can afford it.

A recent High Court decision provides an excellent example of those principles in action.

A wealthy husband is ordered to pay R1.5 million

The couple in question were married in 2010, out of community of property with the accrual system. They lived, it seems a “lavish lifestyle characterised by frequent overseas trips and a taste for opulence” until the husband left home in 2020. Battle commenced with the wife issuing a divorce summons a few months later.

Five years on we find them locked in dispute over the true extent of the husband’s wealth, with the wife applying for a R2 million costs contribution to cover both her legal expenses and a forensic investigation into her husband’s financial affairs.

In his Financial Disclosure Form (a standard form completed by parties to a divorce) he had listed net assets of R34 million. But the Court – finding that these disclosures were “unreliable”, that he had failed to disclose the value of his shareholdings in two companies and of a property in France, and that “there are huge sums of money not being disclosed” – decided that the wife’s proposed financial investigation was justified.

Having analysed the respective financial positions of the parties and their respective abilities to cover the costs in question, and having decided that the wife could reasonably trim some of her projected expenses, the Court ordered the husband to pay her a contribution of R1.5 million.

Don’t be intimidated by a big war chest

If you are outgunned financially, you may well be entitled to ask for a contribution to your divorce costs in order to level the playing field. Ask us whether you qualify.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.