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Chapter 8 - Family Law and Violence against Women
PROBLEM 1: Getting a divorce
My husband and I want to get a divorce. Where do we start? How can we get help with lawyers, legal fees and so on? What steps must we follow to get a divorce in the High Court?
What does the law say?
Divorce cases are heard in the High Court and in most Magistrate's Courts. A law was passed recently that gave all regional magistrate’s courts jurisdiction to hear family matters.. A divorce can be simple and cheap in these courts. This means that people wanting to get a divorce do not have to go to the cities to use the High Court to get a divorce. You can choose whether to do your divorce in the Family Court or the High Court.
What can you do?
Even when there is serious trouble in a marriage, sometimes the couple can avoid a complete breakdown. Before going to a lawyer or the court for a divorce, the married couple could speak to a social worker or marriage guidance counsellor to see if they can solve their problems. Divorce is a last resort.
The Family Advocate helps the Regional Court or High Court with divorce cases.
The Family Advocate works together with family counsellors in divorce and similar cases. Their main role is to work out what will be the best arrangement for children when the parents want a divorce. The Family Advocate is important because it allows the two sides to meet together with an independent person to sort out differences on the arrangements for the children. If the case goes to court then the Family Advocate will represent the best interests of the children in the trial.
A divorce can be defended or undefended.
- A defended divorce means that one partner wants a divorce and brings the case to court but the other partner does not want the divorce OR does not agree on how the property should be shared, or about the maintenance and custody arrangements. The other partner wishes to argue in court about these things. This is called defending the divorce action.
- An undefended divorce means the other partner agrees to the divorce AND agrees to the arrangements suggested by the divorcing partner. If a divorce is undefended the cheapest and quickest way to get a divorce is to use the Regional Court.
The Regional Court.
If you cannot afford a divorce lawyer you can get Legal Aid if you qualify according to the means test.
See Applying for Legal Aid.
See Model letter: Request for social worker’s report to assist with application for legal aid.
A wife who wants to divorce her husband, but does not have enough money to pay for an attorney, can ask her lawyer to claim some money towards her legal costs from her husband. If she needs support for herself and the children, she can ask her lawyer to claim maintenance from her husband. A woman can also claim maintenance at the Maintenance Court from a husband who deserted her and the children. She can do this without consulting an attorney.
See Arrangements made at the time of the divorce.
If the divorce is undefended and there are no complications, you can cut out legal expenses and do the divorce yourselves. To do this you should check with the Registrar of the High Court or Regional Court.
Steps in a divorce action
1. Consultation with an attorney
The spouse (husband or wife) who wants the divorce takes his or her marriage certificate and goes to see a lawyer. The spouse explains why he or she wants to get divorced. The lawyer gives advice on whether there are proper legal grounds for divorce. You can also go to one of the volunteers at the Regional family court and they will assist you to fill out the forms.
The attorney or divorcing spouse draws up a summons against the other spouse. This is a document which tells the other spouse about his or her right to defend the divorce. The Registrar of the Court issues (stamps) the summons.
3. Particulars of claim
The summons is attached to the Particulars of Claim. This documents sets out the reasons for the breakdown in the marriage. It also sets out what the divorcing spouse claims, for example custody of the children.
4. Notice of Intention to Defend
The other spouse usually has 10 days to file (send to court) a Notice of Intention to Defend. If he or she does not do this within 10 days, the court sets a date for an undefended court hearing. If he or she does file the Notice within 10 days, then the spouses must send in their Pleadings. Pleadings are legal documents in which the husband and wife try to work out exactly what their claims and defences are.
5. Consent paper
If the other spouse does not file a Notice of Intention to Defend or if the parties reach a settlement, where they agree on what should happen to the property, children and maintenance, they can write their agreement down in a Consent Paper. Then only the spouse seeking the divorce action has to go to the court hearing.
Even if the divorce is defended at first, the parties can reach a settlement at any stage. They also write this down in a Consent Paper.
Both the husband and wife sign the Consent Paper. When the divorce is granted, the magistrate makes the agreements in the Consent Paper an order of court. This means that if either person breaks the agreement on purpose, the court can send him or her to jail for contempt of court. Regardless of what the parties put in the consent paper, the court will make sure it is in the best interests of the children and ask for the recommendation of the Family Advocate.
6. The court hearing (trial)
In an undefended case, only the spouse who seeks the divorce must attend the court hearing. The divorce only takes a few minutes.
If the case is defended, both spouses must attend the court. If the spouse bringing the action proves his or her case, the court will grant a Divorce Order and also an order about the marriage property, care and contact in relation to the children, and maintenance. The court sends a copy of the Divorce Order to each spouse. At the Family Courts the Divorce Order must be collected.
Using the Regional Court
A person using the Regional Court does not need to have an attorney. A person wanting a divorce can go to the court on any day during the week from 9 a.m. An assistant will help complete the necessary forms. A summons will be issued and then served on the spouse.
The divorce will take longer to settle if:
- the other spouse chooses to defend the matter
- there are children and this usually involves a Family Advocate.
If a couple don't have children, a divorce can be finalised in about two weeks if it is not contested by either of the parties. They must both fill in a notice of non-defence. This only gets signed by the defendant when the summons is served on him/her. A date for the court appearance is then set. If one spouse refuses to sign the notice of non-defence when it is served with the summons, but does not defend the matter, it can take about five weeks to finalise. However certain courts are so busy that people sometimes wait longer than 6 months for a date for an undefended divorce
If the couple has children, the Family Advocate will be involved to make sure that the interests of the children are seen to.
The costs of using the Regional family court are very low. Contact the Regional Court that is closest to you for information on up-to-date costs and procedures.
The Family Court.
Resources for contact details
PROBEM 2: Entering into a civil union
Riana and Charlene, both South Africans, have a lesbian relationship and want to get married. Riana is 21 years and Charlene is 25 years old. Riana has been married before but is now officially divorced.
What does the law say?
Riana and Charlene are not legally allowed to marry each other in terms of the Marriage Act. The Civil Union Act, however, allows them to enter into a civil union which can be either a marriage or civil partnership. If they do this they will get a certificate that indicates that they have either entered into a marriage or a civil partnership, depending on their choice. This registration certificate shows that the civil union has been registered under the Civil Union Act and is not a marriage certificate under the Marriage Act. The certificate will serve as a legal proof that the two partners are married or have become civil partners.
Riana and Charlene will be able to register a civil union because (a) they are both over the age of 18 years, (b) while Riana was previously married, she is divorced and has divorce documents to prove this, and (c) both women are South African citizens.
What can they do?
Riana and Charlene can get married or enter into a civil partnership in terms of the Civil Unions Act at any public office, including the Dpartment of Home Affairs and magistrate’s court in their area, in any private dwelling, including their own home, or any other place that is used for the purposes of marriages or civil partnerships.
They will need to supply the following documents:
- identity documents (or an affidavit if an ID or passport is not available to confirm their identity;
- application forms specific to the Civil Union Act which can be obtained from the department of home affairs in their area;
- Riana’s divorce documents
Finally, they will need to have two witnesses to the ceremony.
PROBLEM 3: Adopting a child
My husband and I wish to adopt a child. What must we do to find a child to adopt? What are all the steps to follow before we can bring a baby home?
What does the law say?
See Adoption of children.
What can you do?
There are many different places you can approach in order to adopt a child, for example, the Child Welfare Society in your area or voluntary or charitable adoption agencies.
Steps in an adoption
- Make an application for adoption at one or more adoption agencies.
- Social workers from the agency check that you are suitable people to be adoptive parents.
- If the agency finds a child, you must apply to the Children's Court in the district in which the child lives.
- The court holds a formal court hearing which is not open to the public.
- The Commissioner of Child Welfare sits in the court. You must satisfy the Commissioner that you have a good reputation and are fit to have custody of the child. You must also show that you can support and educate the child.
- The social workers from the agency also make a report to the Commissioner, saying if they think you are suitable parents. The Commissioner can consider the religion, culture and race of the child's natural parents and its adoptive parents. BUT the Child Care Act does not say the
- Commissioner must match these things. The welfare of the child is the most important thing.
- The Commissioner must see a consent form signed by the natural parents. Usually your names as the adoptive parents are filled in on the consent form. But you can have a 'secret adoption'. This means the adoptive parents and the natural parents agree that the natural parents will not know the names of the adoptive parents.
- If the Commissioner is satisfied with everything, he or she gives an order of adoption. This can happen months after you first apply to adopt a child.
Cancelling an adoption
The natural parents, adoptive parents or the Minister responsible can apply to the Children's Court for a Rescission (an order cancelling the adoption), within two years of the date of the adoption, if:
- the adoption is not in the interests of the child
- the child was mentally ill at the time of the adoption and the adoptive parents did not know this
- there was some fraud or mistake that persuaded the adoptive parents to adopt the child
- the natural parents did not give proper consent
PROBLEM 4: Getting maintenance through the Maintenance Court
I have two children of four and seven years. How can I get the father of the children to pay me support money for them?
What does the law say?
Both parents have a legal duty to support their children, including children from unmarried fathers. This duty of support ends when the children become independent, for example, when they marry, or when they become self-supporting. One parent can apply to the Maintenance Court for the other parent to pay support for their children. Once there is a court order instructing a parent to pay child support, it is a criminal offence not to pay. The parents have to pay in proportion to their income.
The duty to support.
For children up to the age of 17 you can also apply to the Department of Social Development (represented by the South African Social Security Agency SASSA) for a Child Support Grant if you comply with the means test.
Child Support Grants.
There are special Maintenance Courts at every Magistrate's Court. Maintenance clerks working in these courts help people who want to apply for maintenance and also deal with applications to get more or to pay less maintenance.
What can you do?
Check when applications can be made at the Maintenance Court as some Maintenance Offices are only open on certain days of the week. These are the steps you must follow:
- Go to the Maintenance Office at the Maintenance Court in your area.
Take with you:
- the name and address of the father, as well as details of where he works
- photographs of the father (if available) so that the court can identify him
- if you were married and are now divorced, a copy of the divorce order
- proof of your income (like a wage slip, or your UIF blue card if you are unemployed)
- your papers, receipts and accounts, showing all the things you have to pay every month.
- The maintenance officer sends a letter, called a summons, to the father asking him to come to the maintenance office on a certain date.
- On the date, you and the father must go to the office. You must try to agree on how much the father must pay for his children.
- The maintenance officer will work out with you all the things you must pay for every month, and how much money you earn and how much money the father earns. Then you can see how much you need from the father.
- It is important to get the court to make an order to do a paternity test if the father denies that he is the father.
- If you agree on how much the father must pay for his children, the maintenance officer will get both of you to sign a paper called an order of court. This states how much, when and where it must be paid.
- If you do not agree, then the officer will say your case must go to the Maintenance Court on a certain date. The court will warn both parties verbally of the date that they must appear in court.
- If the father does not come to court on the date that he was supposed to, and he has been properly informed, you can ask that a default order be made in his absence. Often the court issues a warrant for his arrest instead of giving a default order but it is better for you to get a default order otherwise there is more delay in getting the maintenance.
If the father seems to have disappeared, then the court can order any person who knows where he is to come to the court and tell them where he is. It is the responsibility of the state to trace the father. However this is very difficult and it is a better idea to claim maintenance from the grandparents (this sometimes brings the father out of hiding!)
- At the maintenance enquiry in the court, the magistrate listens to both parties and finds out how much their income and expenses are every month.
See Monthly expenses.
- The magistrate then decides how much the father must pay for his children. The magistrate makes this amount an order of court, in writing. It is called a maintenance order. Then the father must pay that amount every week or month to the maintenance office or into the mother’s bank account.
- The court can also order a stop (debit) order to be put on the person's account without their consent or make an order that the employer deduct the money from an employee’s salary.
- If the father is out of work, he will not have to pay maintenance straight away. The magistrate will tell him that he has a certain time, say three months, to look for work. He will be given a form to be signed by employers he has approached if they do not give him a job. The enquiry will then be postponed to a future date. Once he has work, an enquiry will be held and the magistrate will make an order. But if the father stays out of work a long time, and doesn't look hard to find work, the magistrate might send him to jail for not paying support. If the father stays out of work a long time, you can try claiming maintenance from the grandparents as they have a duty of support towards their grandchildren if the parents can’t support the children.
PROBLEM 5: Maintenance is not paid
I got a maintenance order against the father of my children, but he still doesn't pay support.
What does the law say?
- Go to the maintenance office and complain. It is important to make a formal complaint every time when the father doesn't pay.
- If the father is employed and failed to pay his maintenance, the mother must ask the court to make an order to get the maintenance deducted from the father’s wage by the employer. This is called a garnishee order. The consent of the father is not required for a garnishee order and the employer has a duty to obey the court order.
- If the father does not pay, he will be in contempt of court which is a criminal offence. The police will give him a paper telling him he must come to court where he must explain why he did not pay the money. If he doesn't have a good reason, the court usually tells him that he must pay all the maintenance he owes, or he will go to jail.
- If maintenance is not paid you can ask the court to issue a warrant of execution. This means the court orders property of the father to be attached and sold to cover the cost of the maintenance. Complainants sometimes have to pay a fee of approximately R150 towards the costs of the Sheriff. This cost varies but it can be recovered from the maintenance debtor in the end.
Some more points about maintenance
- You can ask the maintenance court to make the maintenance amount higher even if the father is behind in his payments. You must show good reasons for needing more money. You can ask the court to make an order that the maintenance goes up automatically every year either by a set percentage eg 10% or by the official inflation rate. This means you won’t have to go back to court regularly just to keep up with the rising cost of living. There may still be other reasons to apply for an increase, for example, you lost your job, the father got a much better job or a child had unexpectedly high medical expenses.
- The father can also ask the maintenance court to make the maintenance money lower. He must show the court that since the court order was made, he earns less money. Or he can show that the mother or children can now support themselves.
- You do not need an attorney to get maintenance through the maintenance courts. So it does not cost you anything. But some people want an attorney to help them when they go to court. You can do this, but then you have to pay the lawyer, usually at least R1 500. Legal Aid will not help you get maintenance because you do not need an attorney.
- If a man pays maintenance directly to the mother of his children, he should get a receipt from her to prove this.
- A mother is also entitled to get back-payments of maintenance and medical expenses during her pregnancy and during or after the birth of her child.
- To prevent wasting time and travelling, you can telephone the maintenance office and ask whether your maintenance was paid or not.
- You are entitled to charge interest on any back-payments of maintenance.
PROBLEM 6: Reporting rape or assault and going to court
I was raped and I want to report the rape. How do I do this? What will happen to me when I go to the police? And what will happen in the court case?
What does the law say?
If you make a complaint to the police, the police must investigate the matter. They must arrest the accused and may arrange identity parades, for you to point out the criminal. They must collect evidence that will help the court to properly try the person accused of the crime. They must get statements from any witnesses (people who saw the crime).
See Rape, incest and indecent assault.
Other rights that you have when reporting a rape are the right to:
- call the police and have them come to you
- have a friend or a family member with you to support you
- give your statement in privacy
- give your statement to a female officer (if you are female), if there is one available
What can you do?
- Go to the charge office at the nearest police station and make a complaint. You can go to any police station. If you report it at a police station that does not cover the area where the assault took place, it will be referred to the appropriate station for investigation. You should try to go within 48 hours of the attack. If you leave it longer, you may have to explain why it took you so long to go to the police. It is advisable to report it to the police or a health facility within 72 hours, then you can access PEP treatment against a possible HIV infection.
- Make a statement to the police. The detective will take a statement from you. You have the right to make the statement in your own language or have it translated. Because you are making a complaint, you will be called a complainant. You must then swear that you are speaking the truth and sign your statement. If you forget something and think about it later, you can add it to your statement.
- Ask for a copy of your statement and the police reference number before you leave the charge office. You have the right to get a copy. The police reference number is called an OB number (Occurrence Book Number) or a VB –nommer (Voorvalleboeknommer).
- Get a medical report. If you have any injuries, the police will ask you to get a medical report form filled in. This form is called a J88 medical report. You can go to your own doctor or to a district surgeon (a government doctor) to get this form filled in. This form must go back to the police station where you laid the charge. If you go to a district surgeon, he or she will send it back for you.
- After you make your statement to the police, they must open a case docket and investigate a criminal charge against the person who sexually assaulted you. Then there will be a CR (Criminal Register) or MR (Misdaadregister) number.
- Check on the progress of your case a week or two later to see what is happening. Ask for the name of the investigating officer so you can speak to him or her when you contact the charge office.
Sometimes nothing happens because the police investigation is stopped or the National Prosecutions Authority decides not to charge the person who raped or assaulted you. You can ask the investigating officer for reasons. If you are not satisfied, you can ask your lawyer to make the authorities take your case more seriously.
- Identity parade. You may have to identify the person who assaulted you by pointing out the person in an identify parade.
- Evidence. The police must gather as much evidence as possible to show that the story you have told is the truth, for example, the clothes that you were wearing when the attack happened, etc. They may be needed in the court case.
- Medical evidence. The police also need the medical report and samples taken by the doctor. Do not wash yourself after the attack until you have seen the district surgeon or your doctor. Also do not drink any alcohol or take any other drugs such as strong painkillers or tranquilisers. You have a right to ask the doctor what he or she is doing and why. You should also ask the doctor to treat you in case you may be pregnant from the rape. The doctor is not legally obligated to treat you for pregnancy, sexually transmitted diseases. You may need to see another doctor to be treated for these problems or any other injuries.
The court case
Steps in a criminal court case.
- If the man who raped you is charged, you must give evidence in court. You will be cross-examined by the accused or their lawyer.
- The state prosecutor will present the case against the accused. You will be called as a state witness to say what happened to you. Tell the court about the effects the sexual assault has had on you.
- The prosecutor must prove the charge against the accused beyond a reasonable doubt. This means there should be no doubt in the magistrate's mind that the man is guilty. The magistrate might decide that the prosecutor has not proved the case well enough and then find the attacker 'not guilty'. This does not always mean that the accused did not do it. It just means there was not enough evidence to prove the case.
- Even if the magistrate or judge finds the attacker guilty, the sentence might be light - a fine or only a short time in jail. You have no say over what sentence the accused gets.
- If the accused is found guilty, ask the prosecutor is you can submit a Victim Impact Statement or can testify how the rape or sexual violation affected you and your life.
- You can ask for certain damages in terms of the Criminal Procedure Act. If you do then you may not be able to bring a claim for civil damages against the perpetrator.
Bringing a civil claim for rape
A person who has been raped can also bring a civil case against the person who has raped and/or sexually assaulted them.
In a civil claim a young girl sued the man who had been raping her for many years for damages. The civil claim was made after the man was found guilty of rape in a criminal court. The man was sued for depriving the young girl of freedom of movement, and for raping and/or sexually assaulting her. Because of this she suffered shock, pain, discomfort, mental anguish and humiliation. The damages claimed were:
- R30 000 general damages for pain and suffering, hurt feelings, anguish and stress
- R10 000 for wrongful deprivation of freedom of movement
- R10 000 general damages for shock, pain and suffering
- R20 000 for disablement in respect of enjoyment of the amenities of life
You can also sue for child sexual abuse many years after it happened if you only became aware and truly understood the impact it had on your life later eg after seeing a counsellor.
If the state does not prosecute, you can conduct a private prosecution. The only problem is that this is expensive.
PROBLEM 7: Using the law against domestic violence
What are all the legal options I can try to stop my partner from beating me up?
What does the law say?
Domestic violence is an assault and therefore a crime. If a court finds a man guilty of assault, he can get a fine or a prison sentence.
What can you do?
These are the legal options you can try:
- Call the police to stop your husband or boyfriend from hitting you. They will probably not take him away or arrest him.
- Lay a charge of assault against your husband or boyfriend.
See Problem 6: Reporting rape or assault and going to court.
You must be prepared to make a statement to the police and later to go to court. Many women are scared to do this because they fear that their husband or boyfriend will beat them up even more if they find out. Also, if the man is found guilty, the sentence is usually just a small fine.
- Get a Protection Order. This is an order from the court to your boyfriend/ husband to stop him hitting you, or to tell him to stay away from you or to have him evicted from the home.
See Problem 8: Getting a Protection Order.
- If you are married to the man who batters you, you may want to end the violent relationship. You may want to leave him and get a divorce.
See Problem 1: Getting a divorce.
- Lay a charge of trespass. You can do this if you own or rent a house and someone keeps coming onto your property without your permission. It is important that you have told the person before not to enter your property or your house. If he does not obey, you can tell the police he is trespassing.
PROBLEM 8: Getting a Protection Order
This is the procedure for getting a Protection Order under the Domestic Violence Act in order to stop abuse or domestic violence.
What does the law say?
The Domestic Violence Act protects people (men, women and children) in abusive relationships.
See Reporting child abuse; Stopping child abuse using the Domestic Violence Act; The Domestic Violence Act
What must you do?
If you want to get a Protection Order you will have to go to the court on two separate days. The first time you go, the magistrate might give you an interim order if he/she believes there is a threat to your safety. If the magistrate gives you an interim order, he/she will set a return date when you have to go back to the court. The return date is the second time you have to go to court, and the abuser is also called to appear in court on this day. You do not need an attorney to get a Protection Order.
The steps in the process are:
- Apply for a Protection Order
You go to the magistrate's court to apply for a Protection Order. The clerk of the court must explain what your rights are and how to get a Protection Order. Take with you any documents like medical reports, photographs of the injuries, supporting affidavits from family members, neighbours or children who know about the abuse.
- The court issues an interim Protection Order
The magistrate will listen to your story and read any affidavits that you have brought with you. If the magistrate believes there is enough evidence of abuse he/she will give you an interim or temporary Protection Order. The magistrate will also give you a suspended warrant of arrest which you can use to get the abuser arrested if he disobeys the order.You can ask the magistrate:
- for protection from domestic violence
- to have a firearm confiscated, if you explain how this has been used to threaten you
- for the abuser to have no contact with the children, if appropriate
- for the police to come with you to collect your belongings at your home
- not to say where you have moved to, if you are leaving or have left home
- for the abuser to be evicted from the home
- for the abuser not to prevent you from entering the common home
- for emergency monetary relief, for example for loss of earnings because you can't work, medical and dental expenses, accommodation expenses, money for food or clothes
- The Protection Order is served on the abuser
The Sheriff of the Court, or the police will serve the Protection Order on the abuser. You can ask the court to phone you and tell you when the Protection Order has been served. The order is only effective from the time that it has been served on (delivered to) the abuser by the Sheriff or the police.If you do not hear from the court that the Protection Order has been served within one week, then you should check with the clerk of the court whether it has been served or not. Sometimes the Sheriff of the Court can't find the abuser.The Protection Order tells the abuser that he must be at court on a return date written on the Protection Order. He must go to court to tell the magistrate why the Protection Order shouldn't be made final. The return date is usually a few weeks after serving the documents.
- Go back on the return day
You must go to court on the return day written on the Protection Order. The abuser will also be there. You can ask the police to protect you if necessary. The court will decide whether to make the temporary order final or to set it aside. If the abuser doesn't come to court then the court will probably make the order final.
- The court issues the final Protection Order and warrant of arrest
Once the magistrate has heard all the evidence, he/she will issue a Protection Order. The magistrate also issues a warrant of arrest, to be used if the abuser disobeys the Protection Order. The Sheriff or police serve the final Protection Order on the abuser. You get a copy of the order signed by the court (certified copy), together with the warrant. The order lasts until you choose to cancel or change it.
If the abuser doesn't obey the Protection Order:
- you can go to any police officer with the warrant of arrest which is attached to the Protection Order
- you tell the police how the abuser has broken the Protection Order
- he police will charge him with breaking the Protection Order
- the police must arrest the abuser if you are in danger (they can also do this without a warrant) or if they think you are not in immediate danger, they will warn him to appear in court.
If you lose your warrant of arrest
If you lose your warrant of arrest and Protection Order you can go back to the clerk of the court and get another copy.
What happens to the abuser?
If the abuser is arrested, he will be kept in jail until he goes to court within 48 hours.
Besides being charged with disobeying the Protection Order, he can be charged with any other criminal offence he has committed while abusing you, for example if he assaulted you or pointed a firearm at you.
If he is found guilty in court, he will be fined or sent to jail.
Changing the Protection Order
If you want to change the Protection Order, you can give written notice to the abuser and to the court to apply to change the order or to withdraw it completely. You must say why you want to change it or withdraw it.
PROBLEM 9: Making a will
I want to make a will, leaving small sums of money to my friend and to Child Welfare, and the rest of my estate to my wife. Should I consult an attorney? What should I say in my will?
What does the law say?
Remember the will must be in writing and it must be signed on each page by you the testator (the person making the will), and by two witnesses who are not named in the will, all present at the same time.
Dying with a will.
What can you do?
Making a will is very important. Unclear language in a will can cause problems. And if the legal requirements are not met, the Master of the High Court can ignore your will.
So it is best to consult an attorney or a bank if you want to make a will, or you can buy a will form from a stationery shop. A good lawyer can draft a will that includes ways of saving tax when dividing up your estate. A bank may draw up your will without charging, if you are a client of the bank.
Your will can be simple, like the example below, or it can have detailed instructions. For example, it can say what must happen to everything you own and what must happen at the funeral. It can name someone to be guardian of your young children.
If you want to leave something special to someone, for example a sum of money to a charity, or a book or watch to a friend, you can write this in your will. This is called a legacy. The rest of your estate, after legacies and debts are all paid out, goes to your heir or heirs.
You can write your will in handwriting, as long as it is clear and neat and you can change it at any time. You and your witnesses must sign any changes you make. If there are big changes, it is best to make a new will.
An example of a simple will
LAST WILL AND TESTAMENT OF ROWAN DANIELS
of 42 Blouboom Drive, Blikkiesfontein, Port Elizabeth
(1) I hereby cancel all previous wills made by me.
(2) I appoint as Executor of my estate, my brother PETER DANIELS, of 12 Marais Street, Aurora, Port Elizabeth.
(3) I bequeath the following legacies:
(4) The rest of my estate I leave to my wife, SORAYA DANIELS (nee FREDERICKS), to whom I am married out of community of property by ante-nuptial contract. If she does not survive me, I leave the rest of my estate to our daughter, ELSIE DANIELS.
(a) to my friend, JOSEPH WITBOOI, R2000 (two thousand rand) and my books on motor mechanics.
(b) to Animal Welfare (W.O. 2345) the sum of R2000 (two thousand rand)
(5) Should my wife die before me, or at the same time, and should our daughter at that time still be a minor, I appoint my brother, the said PETER DANIELS, to be her guardian.
SIGNED by Rowan Daniels, the testator of this will,
in the presence of the undersigned witnesses
who signed in presence of the testator and each other, all being present at the same time
at PORT ELIZABETH this 5th day of August 2011.