McLarens Attorneys celebrates its 30th anniversary

This September McLarens Attorneys celebrates its 30th birthday.

From its humble beginnings in Delvers Square, Kerk Street Johannesburg McLarens has grown into a boutique Law firm with five Attorneys, one Candidate and four support staff.

McLarens offers expert services in Commercial Law, Company Law, Property Law, Employment Law, Wills Trusts deceased estates and Family Law.

Our clients range from Multinational Corporations, local Business to the man in the street.

We are extremely proud of our journey and mindful of the fact that successes would not be possible without the support of our loyal staff and clients.

We look forward to being of service for many years to come.

Ian McLaren
Senior Partner
1986-2016

MAINTENANCE: THE GRANDPARENTS DUTY OF SUPPORT

Section 28(1)(c) of the Constitution provides that every child has the right to basic nutrition, shelter, basic health care services and social services.  In addition our common law provides that both parents have a legal duty to support their children according to their means.

A large majority of the public considers the legal obligation of maintenance to only be the responsibility of the parents of the child and that no one else can have the legal obligation placed upon them. This is incorrect.

While the legal obligation to maintain a child primarily rests on the parents of the child in question it is accepted that other relatives of the child have to support the child in circumstances where a parent is deceased or unable to support/maintain the child.

In circumstances where a parent is deceased or unable to support/maintain their children the general rule is that the support/maintenance must always be sought from the nearest relative to the child, and only if that support/maintenance is not forthcoming from that relative, then it can be sought from more remote relatives.

As a result of the accepted common law principles, our courts have held that there is a reciprocal duty of support between grandparents and their grandchildren (Barnard v Miller 1963 (4) SA 426 (C)), and that if parents are not able to support their children, the duty of support falls on paternal and maternal grandparents of the child (Barnes v Union and South West Africa Insurance Co Ltd 1977 (3) SA 502 (E)).

Accordingly in South Africa there can be no doubt that both maternal and paternal grandparents can be required to support/maintain their grandchildren, but it must always be remembered that this can only happen in circumstances where a parent is deceased or unable to maintain their child themselves. In this regard it has been held by some of our courts that grandparents can defend maintenance claims against them by insisting that the claims first be pursued against a parent.

NUNO PALMEIRA

Racially Offensive Remarks

“Subsequent to his Facebook remarks which were construed as being racially offensive, Khumalo was duly suspended from the employ of the Gauteng Department of Sport, Arts, Culture and Recreation and charged for serious misconduct for having “conducted himself in an improper, disgraceful and unacceptable manner”.

Velaphi Khumalo – Politics Web Report

It is trite law that discipline must be consistently applied and as such within the Gauteng Department of Sport, Arts, Culture and Recreation such conduct if coupled with a sense of remorse may only merit a suspension and final written warning.

Maybe there is some balance in the decision, maybe Corporate South Africa has overreacted on these issues. On balance and upon reflection maybe we have regained our sensibilities on this difficult issue.

Ian McLaren

MARRIAGES SUBJECT TO THE ACCRUAL SYSTEM: WHEN TO DETERMINE THE VALUE OF THE ESTATES

In South Africa marriages out of community of property are automatically subjected to the operation of the Accrual System, unless the parties include a specific clause in their Ante-Nuptial excluding the operation of the system. The operation of the Accrual System basically means that when the marriage is dissolved, by death or divorce, the spouse whose estate has grown the least during the marriage will be entitled to claim and receive half of the difference between his/her estate and the estate of the other spouse.

While the Matrimonial Property Act is clear that a spouse’s claim in terms of the accrual only arises when the marriage is dissolved by death or divorce, there has been much debate and varying court decisions as to when the value of a spouse’s estate must be determined for purposes of the accrual.

In 2010 Acting Judge Brassey  found, in his judgment in MB v NB 2010 (3) SA 220 (GSJ), that the operative moment when one must value the accrual of spouses is the moment when pleadings in their divorce action have closed and the disputes between the parties have been crystallised (litis contestation).

The findings of in MB v NB 2010 (3) SA 220 (GSJ) were subsequently followed and agreed with in the decisions of MB v DB 2013 (6) SA 86 (KZD) and KS v MS 2016 (1) SA 64 (KZD).

In 2014 however, Judge Sutherland, in his judgment in JA v DA 2014 (6) SA 233 (GJ,) disagreed with the findings made by Acting Judge Brassey and found that the accrual of spouses should be valued on the date on which the accrual claim rises between the spouses, being the date on which the marriage is dissolved.

On 26 March 2016 the Supreme Court of Appeal finally put the matter to rest in its judgment in Brookstein v Brookstein (20808/14) [2016] ZASCA 40, where it found the Judge Sutherland’s findings were undoubtedly jurisprudentially correct. In this judgment the Supreme Court of Appeal found that the date at which the accrual of the value of a spouse is to be determined is the date of dissolution of the marriage either by death or divorce.

NUNO PALMEIRA