We’ve all grumbled about being endlessly FICA’d and RICA’d. “Waste of time,” we mutter as we wade through all the red tape yet again. Compliance certainly is a hassle, but don’t blame the bank, service provider or conveyancer who asks for it. They are legally obliged to ensure compliance, and so are you.
But FICA and RICA? Yes, in some instances (like applying for a cellphone contract) both will be necessary. That’s because FICA (the Financial Intelligence Centre Act) focuses on fighting money laundering, tax evasion, and terrorism funding by verifying your identity and scrutinising financial transactions. RICA (the Regulation of Interception of Communications Act) focuses on telecommunications, requiring SIM cards and internet connections to be linked to a verified owner. Neither is of course anywhere near foolproof in fighting crime, but they do help – to everyone’s benefit.
It’s tempting to think that a “director” must be formally appointed to that position, but the Companies Act provides a much wider definition. “‘Director’ means a member of the board of a company … or an alternate director of a company and includes any person occupying the position of a director or alternate director, by whatever name designated.”
When it comes to deciding who is and isn’t a “director”, it’s the substance of the person’s position that counts, not their designation. “A rose by any other name,” as Shakespeare might put it, although not necessarily smelling quite as sweet. Consider, for example, a delinquent director trying to hide their (unlawful) high-level participation in a company by adopting an inoffensive title like “Liaison Officer” or “Floor Supervisor”. It just won’t wash.
As intimidating as that old Roman law adage sounds, it has a very simple and common sense meaning: No one can transfer more rights to another than he himself has.
Often referred to as the nemo plus iuris rule, it was formulated by one of Rome’s great jurists, Ulpian, and eighteen hundred years later it is still regularly quoted in our modern courts. To take one example, if you don’t own that house you’re selling me, you can’t transfer ownership to me. With only a few exceptions, that remains our law today.
“Trade Mark”
A trade mark is a brand name, slogan or logo that identifies your services or goods and distinguishes it from the goods and services of other businesses.
Registration gives you easily enforceable rights to use or licence the mark, and to stop others from using it (or one that is confusingly similar). Without registration, you must prove another ground for protection, such as “passing off”. Your mark can be protected forever but must be renewed every ten years. Note that trade mark rights are inherently territorial, so local registration doesn’t ensure international protection.
“Codicil”
A codicil (from the Latin codicillus, meaning “a small writing tablet”) is a legal document in which you can make minor changes to your existing will. That said, rewriting your whole will can sometimes be a better option – particularly if the changes are substantial or complex, or if you already have a codicil (multiple codicils can be confusing!).
Remember that it must comply with exactly the same signing and witnessing rules as a will to be valid. And, on a practical level, be sure to attach the codicil to your will as an addendum, and to tell everyone who needs to know about it, especially your executor.
Commonly used interchangeably in the context of wills and estate planning, these terms do in fact carry different meanings, and the distinction can be important. Simply put, a “beneficiary” is anyone who benefits under a will. A “legatee” is a type of beneficiary who is left a specific item, amount or benefit (e.g. “I bequeath R100,000 to Mary”). An “heir” on the other hand, is a beneficiary who is left the residue of the estate (or a percentage of the residue) after all other beneficiaries, estate debts and administration costs are settled.
A final thought – if you haven’t heard of a legatee before, you’re in good company. It’s used mostly in legal circles because “beneficiary” and “heir” are more widely understood by lay clients and often used as umbrella terms covering all three concepts.
“Abuse of Process”
“Abuse of process” is the use of our court system to improperly delay, harass, or obstruct another party. Some examples: repeatedly litigating on the same matter without justification, launching meritless cases for ulterior motives, taking unnecessary legal steps purely to frustrate the other side, or dishonestly using a legal process merely as a tactic to block or delay lawful action by another party.
To deter such behaviour and keep our legal system fair and efficient, courts can impose punitive costs orders or even declare offenders “vexatious litigants”, thereby limiting their ability to launch further proceedings without court permission.
“Per stirpes”
You’ll come across the Latin term “per stirpes” often in wills. It’s an important concept, translating literally as “by roots” or “by stock” and telling everyone, in simple terms, that you want your estate to be divided equally between the branches of your family rather than between individuals.
Take for example a testator who leaves their estate 50/50 to two children. If one child dies before the testator, the surviving child gets their full 50% whilst the deceased child’s 50% is divided equally between that child’s children (e.g. 25/25 if there are two of them). And so on, down the line.
You’ll often come across the term “alimony” (from the Latin “alimonia”, meaning “nourishment” or “support”) in American movies and series. It also occasionally crops up in some older English law contexts such as P.G. Wodehouse’s wry comment that, “Judges, as a class, display, in the matter of arranging alimony, that reckless generosity which is found only in men who are giving away someone else’s cash.” Our South African equivalent of “alimony” is “spousal maintenance” or “spousal support”.
“Maintenance” on the other hand is our law’s broad term for both spousal and child maintenance, “child support” being the American term for the latter.
A nolle prosequi (Latin for “do not want to pursue”) is a formal certificate issued by the National Prosecuting Authority (NPA) when it decides not to pursue criminal charges against a person accused of a crime. This does not mean the accused is innocent, only that the state has chosen not to proceed. That’s usually due to the NPA’s assessment that there is no reasonable prospect of a successful prosecution. But it does open the door for the person laying the charges to consider instituting a private prosecution.