News & Articles
Can a testator rule from the grave?
“I was recently appointed as the executor of a deceased estate of a family member. The provisions of the deceased’s last will and testament are very strict and every bequest is subject to some form of condition. Do I have to adhere to the provisions of the last will and testament or did the deceased exceed his right to rule from the grave?”
Can I run an Airbnb from my sectional title unit?
“I am an owner of a sectional title unit and would like to advertise my unit for short term rentals on Airbnb, is this legally allowed?”
Vicarious liability
You’re in a situation where one of your employees negligently caused a fire which damaged your neighbour’s property. Did you know that you could be held liable for such an action? This is known as vicarious liability.
Does your pension payments form part of your insolvent estate?
“I am on the verge of being declared insolvent. In the next few years I will receive pension payouts from my pension fund. I am concerned, though, that my pension will also fall into my insolvent estate and I will lose my pension? Will this happen?”
Who can inherit from a child’s estate?
“I have a friend who has been looking after her grandson since birth when her daughter just walked out on the child after he was born with deformities. My friend managed to obtain a settlement with the hospital for negligence during the birth and now takes care of the child using the money from the settlement. The child is very sick and may not have much time left with the biological mother suddenly making an appearance to try and claim the remainder of the settlement money. Surely my friend is entitled to the money having taken care of the child all her life? What is the position in law?”
How valid is signing an agreement electronically?
“I’ve grown up signing our business contracts with pen on paper. With Covid however, most of my suppliers send me their agreements electronically which I sign by adding a copy of my signature digitally or, in some cases using specific software through which I then add my signature. It does make things easier, but I was wondering how valid and binding these agreements are?”
Can a settlement agreement override fair tender procedures?
“After losing a tender, we lodged a complaint with the department against their awarding of the tender to a bidder who we are aware operates in a less than reputable fashion. The department informed us they would cancel the tender. Subsequently we have heard that although the tender was cancelled, the department wants to enter into a settlement agreement with the bidder to avoid litigation. Surely such a settlement agreement cannot override fair tender procedures?”
POPIA: the role and responsibilities of the Information Officer
By now the news of the 1 July 2020 commencement date for the Protection of Personal Information Act (POPIA) has done the rounds and most persons who are required to comply with POPIA’s provisions are now in the midst of either implementing or updating their compliance frameworks to ensure that by the time the grace period ends and POPIA’s provisions become enforceable, on 1 July 2021, they can reasonably show the Information Regulator (POPIA’s supervisory authority), that their processing activities are compliant with POPIA’s conditions.
Arguably, one of the key areas to address in POPIA compliance is the role of the Information Officer. In this article we outline the key compliance considerations with respect to the appointment and role of the Information Officer as it relates to POPIA.
51% black equity tender pre-qualification criteria found to be invalid
“My business is 26% black owned but has been excluded from a number of tenders because of pre-qualification criteria for tenders being set at being at least 51% black owned. I’ve seen in the news though that this practice has been scratched by the courts. Is this true?”
Prescription and surety don’t always play well together
“Our company is owed money by one of our contractor companies who we helped with finance and provided us with personal sureties by the shareholders as security for the transaction. They have been making promises that they will pay for some time and we left it, but now we are getting worried about prescription. We are also unsure whether if we act against the sureties, prescription will be halted for the contractor or may continue and we lose our claim against the company itself. Can you advise?”
Is a power of attorney an abdication, or temporary delegation of your authority to act?
“I recently had to sign a power of attorney authorising my attorney to act on my behalf in my property transfer. It just got me wondering about what exactly a power of attorney means and for how long it remains valid. Can you enlighten me?”
What Covid tax relief measures can my company qualify for?
“I have a construction company which has been hard hit by the Covid-pandemic and although I have managed to keep our doors open and not retrench my employees, we are in dire straits. I understand that there are some tax relief measures which I can access to assist my company. Is this true?”
What to do if my pesky neighbour keeps parking in the visitors parking area
“One of the residents of the sectional title scheme I live in, constantly parks his vehicle in the parking bays designated for visitors. This is frustrating as there is limited visitors parking and often visitors are forced to park outside the scheme which is inconvenient and a safety risk. What can be done about this resident?”
Sustainable forest management in South Africa
Every South African citizen has the Constitutional right for the environment to be protected for future generations. Natural forests, wooded areas and plantations form an important part of South Africa’s ecology and economy and, as such, it is important that these natural resources are managed in a sustainable manner.
Can your ex-spouse circulate your private information?
“My ex-husband still has access to our shared cloud account. Unbeknown to me this meant he could see all my back-ups of messages, photos and other personal information. Our divorce did not end well and he is now sharing private and personal information of me with third parties to embarrass me and to try and portray me as a bad parent. What can I do to stop him?”
Service provider or labour broker?
“Our company wants to help out one of our oldest clients by allowing some of our labourers to work for a few months for the client on a project at the client’s site. The client has had to layoff staff during Covid-19 and we would temporarily help him out with our labourers. We would continue to pay our staff with the client paying us a service fee for the labourers and other support services. Our human resources manager however is concerned that we could be seen as labour brokers should we move forward with this arrangement. Would this be the case?”
The rights of a dissenting shareholder in a scheme of arrangement
“I’m a minority shareholder in a company that has been approached by a buyer willing to buy out all the shareholders. Because of Covid-19 the company has suffered financially and I know that the shareholders holding more than 75% of the company will want to accept the offer even though I believe it to be far below the market value of the shares. Is there any remedy at my disposal?”
Can a body corporate institute action against the sectional title developer?
“In our sectional title scheme, it has become clear that many of the structures on the common property have been poorly built and are defective. However, the body corporate is uncertain whether it can take action against the developer for these defects and accordingly nothing is happening. Surely the body corporate should be able to do something?”
Is government liable for an accident at a private nursery school?
“I recently saw an article in the news saying that the Western Cape Department of Social Development was not responsible for injuries caused to a child in a day care funded by the Department. Surely this cannot be right and the Department should be responsible?”
Can you still use management statements for your BEE verification?
“My business has automatic Level 4 BEE recognition because our annual turnover is below R10 million. However, a key client is requiring that we have to have at least a Level 3 BEE certificate meaning I will now have to verify. However, I had no planning in place to be able to do so in my previous financial year and I cannot wait until the current financial year is over. I was wondering whether I could use management statements for my verification if I can get the necessary planning measures in place?”
Can I keep my grandfather’s rifle?
“My grandfather recently passed away and left me his hunting rifle. I’m not sure if I want to keep it, but would like to weigh my options. How does it work? Must I take the rifle?”
Is now the time to buy or rent?
“I have been saving for some time now with a view to buy my own property. However, with all the upheavals of the last year I’m wondering whether buying is still the right option and whether I should not continue renting. Any advice?”
Consent and POPIA: what you should know
“In my business I receive and store personal information of my clientele. I have a sign-up form for my new clients and was wondering whether I would be compliant with POPIA if I include a consent to process their information once-off in this form. Will this be sufficient for POPIA?”
What’s the latest on using cannabis?
“It has been nearly two years since all the hype in the media about the use of cannabis. Yet nothing has changed and it seems like the status quo is still ongoing. Am I wrong in my view on this?”
Minority shareholder rights in a private company
“I hold 20% shares in a private company that I bought into a few years ago. The majority shareholders heavily influence the directors who take decisions which in my view is not always in the best interests of the company or my own as a minority shareholder in the company. What remedies are available to me?”
Pending divorce and evicting your abusive partner
“My husband and I are busy getting a divorce. We are currently still living under the same roof, but my husband insults me and is quite abusive in front of our children. We bought the house together but I don’t want him living there. Is there any way I can force him to move out before we are divorced?”
Fraud in contract unravels all…
This article demonstrates that an adjudication clause in a contract cannot be used to save a contract entered into as a result of fraudulent misrepresentation, as referred to in the recent Supreme Court of Appeal (SCA) judgment of Namasthethu Electrical (Pty) LTD v City of Cape Town and Another (Case no 201/19) (2020) ZASCA (29 June 2020).
Data intensive businesses and POPIA
“My business processes and stores quite a large amount of information relating to our clients. We are well aware of POPIA that has now come into effect and have been putting basic processes in place. However, I remain concerned that we are not doing enough/underestimating our obligations. What should I be preparing for?”
Have the BEE Priority Elements had the desired impact on transformation?
“I’m the procurement manager for our company. We have a strong focus on BEE in our business and take great care in our procurement and the BEE position of our suppliers. Accordingly, I have noticed from the BEE certificates of many of our suppliers that they do quite poorly with their priority elements. This is strange, given the risk of dropping levels for non-compliance with these elements. Maybe the priority elements have not had the desired impact envisaged by their introduction?”
Validity of lock-in provisions in BEE transactions
“A few years ago, our company entered into a BEE transaction with BEE partners to address our ownership. In the transaction documents, restrictions were imposed on the BEE partners that they could not sell or encumber their shares for a period of at least ten years. These lock-in provisions were a necessary part of the financing and overall transaction. With the current difficult economic times, our partners want to sell a portion of their shares and are disputing the validity of our lock-in provisions. Are lock-in provisions legally enforceable?”