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I gave in after realising that he really wanted to “fish” with me the following day. I rescheduled my diary and took to Susugi Dam the following day.
Barely a few minutes at the dam, he started pouring his heart out.
“Ben, all the businesses my father left behind are collapsing in our eyes?”
“As far as someone told me, most of your family members have masters degrees from overseas universities, therefore you should be able to sit down and chart a way forward,” I interjected.

“Sad to say we cannot call each other to a round table. We disagree on everything. I wish these degrees enable people to use more common sense than emotions.
“No one seems to think that survival of these businesses is more important than our individual differences. Each son or daughter reports only to his or her mother and only agrees to have a meeting with his or her mother.
“Unfortunately, there are more than three mothers who are working tirelessly to sow seeds of disunity among the surviving children.”

“Did your father leave a will?” I asked.
“Yes, but the will does not in any way deal with issues of corporate governance. The businesses are now in intensive care. All systems have broken down. Looting is now rampant in the businesses, perpetrated by both family members and workers,” said John.

“So how to do you intend to solve this problem?” I asked.
“We have no choice except taking each other to court. Washing our dirty linen in public is the only way to salvage some remaining assets and businesses,” answered John.
The issues of inheritance or succession planning are quite topical and sensational in our culture. Understandably arranging a succession or inheritance plan is not easy.

Inheriting company assets poses some challenges to many families. Company assets are not governed by the following common pieces of legislation: Administration of Estates 6.01, Administration of Estates Amendment Act No. 6 of 1997 and Deceased Estates Succession Act Chapter 6:02.
This legislation gives some guidelines on how assets (that are not in company names) are supposed to be distributed.

On the other hand, companies are governed by the Companies Act Chapter 24:03. In theory, death of any director should not affect the operations of a company because a company is required to have two or more directors.
An individual’s relationship to the company is supposed to be through share ownership that can be sold or transferred anytime.
The company is supposed to be separate legal entity from the owner.

However, the reality on the ground is different for most indigenous companies. The owner is in most cases the 100 percent shareholder and managing director of the company.

The other director is a sleeping director who is not at all involved in shaping the strategic direction nor running of the company on a day-to-day basis. In some cases a second director is appointed to fulfil the legal requirement of registering at least two directors with the Registrar of Companies.
In such circumstances the death of the founding shareholder spells doom for the company.

Useful tips on arranging succession planning
Most wills and trusts I have seen are mainly focused on who become beneficiaries. The focus has been to protect children and wife from relatives. However, they fall short on protecting children from mothers or protecting children from other children.
It is not easy to predict how people will behave when you are gone because some people only behave well during your lifetime and turn a new leaf after your death.

Never leave anything to chance
The first principle in arranging a succession plan is never leave anything to chance.

Formulate a code of conduct for the trustees
I have read stories of beneficiaries failing to access their assets from trustees or from the brothers and relatives of the deceased.
In other instances trustees can convert themselves into owners of the property. Other trustees refuse to step down from serving the trust by declaring themselves life trustees.

It is therefore important to formulate a code of conduct that deals with issues of appointment, firing and reappointment of trustees. Ensure you choose trustees of people who are reputable and good standing in the society.
Avoid flamboyant people or people with ostestantaneous spending habits. Flamboyant people can be tempted to use companies’ resources hoping to return it on a later date.

Corporate Governance
The grey area for most black-owned businesses is on succession. Even if the successor is known there is no clear separation of powers between him or her and other family members.

I have heard of cases where all children and wife fight to control the business/es. Other children declare themselves executive management without following procedures in appointments of executives. It is not clear who appoints executive management even if the successor has been chosen.
Though the articles and memorandum specifies this, it is normally ignored for expediency purposes. Most businesses left by late indigenous people would not have been developed to a stage where management is divorced from the owners.

Even if divorce ownership is not yet in place, it might be prudent to design the board charters which governs the code of conduct for your directors.
What tends to happen, is after the death the entrepreneur, the surviving children at times have divided interests, which at times is not in sync with the founding ideals of the entrepreneur. The entrepreneur needs to set clear-cut corporate governance framework for his businesses before he dies.

Real Estate
In cases where real estate is left, it normally benefits those sitting residents than non-residents. The law of our country seems to suggest that occupying a property is 90 percent of ownership of the property. Therefore sitting tenants tend to benefit more than the non-residents.
This applies to houses and shops. The distribution of rental income among the beneficiaries is normally left as a grey area. Only the children with access to rent will benefit.

This applies to property other than the primary residents of surviving widows.
A framework for rental income distribution needs to be formulated as well as ensuring that these properties will not be used for speculative purposes.
Use a “poison pill” framework in formulating real estate policies.
For instance, should the children decide to sell a property all the surviving children must approve the decision, the same applies to mortgaging any of the properties even if the properties have been allocated to individual children.