News & Articles
What is meant by a suspensive condition in a contract?
Most persons that have bought a property, may have noticed a clause dealing with suspensive conditions in the contract of sale. Usually these conditions relate to deposits that need to be paid, financing that has to be procured and/or another property that needs to be sold before the sale can be confirmed. The interpretation appears straightforward enough – meet the requirements, then the contract is valid; don’t meet them, then the contract is invalid. But is it that straightforward? And what are the consequences of non-compliance?
A few pointers to consider before instituting legal action
Upon watching popular court room dramas such as Suits, The Good Wife and Law and Order one may be forgiven for thinking that litigation is easy and all you need is a lawyer with a poker face, good suit, glib charm and an intelligent strategy to play the opposition, and you’ve won your case! Unfortunately the reality of litigation is far removed from these television court rooms, and clients should take care not to have unrealistic expectations when considering the institution of legal action.
Directors personal liability under section 48(9) of the value added tax act
Can SARS lawfully hold a director personally liable for the current debt owing to SARS by the company? Find out how Section 48(9) of the VAT Act could make company directors sweat.
The complexity of contracting internationally
Globalisation has opened the door to individuals and businesses to become bolder and more internationally active. This implies a greater degree of international contracting. Although substantial benefits can arise from expanding your business internationally, it can also present many difficulties if you are unaware of the legal consequences of contracting in the international arena, particularly where you are involved in a contractual dispute with an international party.
Black owned EME and QSE companies now exempt from BEE?
The Revised BEE Codes of Good Practice (“Revised Codes”) were gazetted on 11 October 2013 and aim to intensify the empowerment of black business and socio economic reform in South Africa. The additional goals of the Revised Codes were summarised in the following words of the Minister of Trade and Industry, Rob Davies, “The amendment of the BEE Act and the revision of the Codes will go a long way in plugging the gaps that businesses have taken advantage of such as fronting, ‘tick-box’ compliance, and the exorbitant amounts of money that small enterprises have to pay to consultants to prove they were BEE compliant.”
So what exactly is my Domicilium Citandi?
Quite often when completing a form or signing a contract one comes across a clause, usually at the end, that refers to a domicilium citandi et executandi. This so-called domicilium clause is found even in documents as simple as, for instance, the form one would complete when visiting a new doctor for the first time. If a person were to ask someone what they thought the term meant, the answer would most probably be something like, “It’s just your address”. But is this correct?
Prescribed Minimum Benefits: Can your medical scheme refuse to pay?
With the cost of proper medical care, and in particular specialist treatments such as oncology being almost unaffordable to the average person, medical aid has become somewhat of a necessity to most South Africans. Although medical schemes offer different packages and benefits to suit the needs of their members, all schemes are required to provide Prescribed Minimum Benefits (PMB). But what are these and to which extent can medical schemes be held responsible to pay for elected procedures?
Can an employer demand biometric information from its employees?
The need for greater and more stringent security measures in the business environment, has seen the introduction of sophisticated control and security systems. These systems increasingly make use of biometric information such as fingerprinting, blood typing, voice recognition, retinal scanning etc. as unique personal identifiers allowing access to/egress from physical locations, programmes, systems or networks. For an employer to implement such control measures, biometric information must be collected from employees, raising the question as to whether employees can be forced to provide biometric information, under which circumstances and for what purposes.
The legal nature of exclusive use areas in a sectional title scheme
In order to understand the legal nature of an exclusive use area it is important to know how it was historically developed, what exactly constitutes an exclusive use area and how it is established. In this article we will focus briefly on the historical development of exclusive use areas in South Africa, what an exclusive use area is, the two types of exclusive use areas that can be established and the legal nature of these two types of exclusive use areas.
Water leak? Whose responsibility is it?
Maintenance of a sectional title scheme can appear straightforward, but the reality is that disputes arise frequently regarding maintenance issues relating to sectional title units. This is often the result of the complex relationship of close quarter living and the shared form of ownership represented by sectional titles. Making things even more complicated is the silence of the Sectional Titles Act on many of the nitty gritty issues encountered daily in sectional title schemes. So how does one approach maintenance issues in a sectional title scheme?
Is kontrakte nog die papier werd waarop dit geskryf is?
Ons Suid-Afrikaanse reg bepaal dat wanneer ‘n kontrak tussen twee partye aan al die vereistes van ‘n geldige kontrak voldoen die partye gebonde is aan die regte en verpligtinge vervat in die betrokke kontrak. Hierdie beginsel, genaamd die pacta sunt servanda beginsel bepaal dat partye gebonde gehou word aan ‘n kontrak wat vrylik en vrywilliglik gesluit is. Die vraag onstaan egter of die bepalings van billikheid en geregtigheid wat deur ons Grondwet daargestel word hierdie absolute beginsel van kontrakteervryheid nietig maak.
More confusion around new BEE codes
When the new BEE Codes where published in October last year there were many issues which required clarity leaving the business industry with numerous questions and uncertainty. New notices published in the Government Gazette recently have again highlighted this uncertainty and have shown that even within Goverment there still appears to be confusion around many facets of the new BEE Codes.
Claiming maintenance? What you need to know!
Biological parents as well as the legal guardian of a child have a legal obligation to pay maintenance, in other words to support the child financially. This obligation includes contributions towards paying for food, clothing, accommodation, medical care and education.
A few things you should know before challenging the validity of a will
Mrs Ambrosia passed away on 10 December 2013 at the age of 93. After her death it is discovered that she executed a will on 10 June 2013 in terms whereof a recent acquaintance Mrs Nightshade becomes the sole beneficiary of her entire estate. The will also revokes all her preceding wills, including a will dated 1 January 2009 wherein her son, daughter and their respective children are indicated as Mrs Ambrosia’s beneficiaries. Mrs Ambrosia’s health had deteriorated systematically since 2010 and she was very ill at the time of her death. Can her children challenge the new will and if so what must they prove?
What to budget for when buying a new house?
You have finally managed to find your dream house and want to make an offer, but you are concerned about your budget and everyone keeps telling you that with a new house there are so many additional costs you need to take into account. So what should you realistically be budgeting for?
Municipal environmental regulation and the property developer
With increasing emphasis being placed on environmental matters, conservation, sustainable development and ‘going green’, we are also seeing more and more environmentally-related matters turn in court and address seminal issues relating to the development of our environmental law. A recent case of relevance is Le Sueur and Another v eThekwini Municipality and Others (KZP).
Property Transfer: Let’s break it down!
The process of transferring property frequently leaves buyers and sellers alike confused, frustrated and in the dark as to what exactly the sequence of events are to have a property transferred. With the sale agreement signed, surely the hardest part has been taken care of? The reality is, that our property regime in South Africa is quite sophisticated and with numerous stakeholders and role players impacted by a transaction, the actual process of transfer can become quite complex. Accordingly, it is important to understand the procedure and prepare oneself for the steps of the transfer process.
Building contract cancellation: Beware the pitfalls
The building project is going nowhere and so too is the relationship between the client and building contractor. Both parties have been at loggerheads since the start of the project and the relationship has deteriorated to such a point that both parties are failing to meet their contractual commitments in terms of the building contract. But what now? Can either of them just call it a day and cancel their contract?
Lease of Agricultural Land: What to consider?
Daniel is a young, innovative and successful farmer who wants to expand his agricultural operations and begin an apple plantation to produce apples for export purposes. The only problem is that he doesn’t own enough agricultural land to start this lengthy and expensive process. Daniel now considers entering into a long term lease agreement of 20 years whereby he will lease a certain portion of agricultural land (a portion of a farm registered in the Deeds Office) from a nearby farmer for this new farming operation. He wants to ensure that the lease agreement between himself (the “Lessee”) and the farmer who owns the land (the “Lessor”) is valid and complies with all the aspects of the law applicable because of the high input costs and big financial impact such an operation has.
Maritime Piracy and South African Law
Over the past decade, piracy on the high seas and off the coast of Somalia has been on the rise. Although there have been preventative measures deployed by maritime nations to counter the crime, across the seas, there is an identified need to develop an efficient regime to prosecute pirates with “pirates” long being described as hostes humani generis (enemies of all humankind).
Act! Prevent abuse and domestic violence
With such high crime statistics being attributed to violent crimes occurring between people who know each other, it is sadly also the case that silent abuse happens in the confines and privacy of many homes. Such can take the form of physical, sexual, emotional, verbal, psychological and economic abuse, intimidation, harassment, stalking, damage to personal belongings or entry into a residence without consent by an unwanted relative, boyfriend or girlfriend who shares or recently shared the same residence with the affected person, or any other controlling or abusive behaviour towards a complainant, where such conduct harms, or may cause imminent harm to, the safety, health or wellbeing of the complainant.
Divorce mediation as an option
The dissolution of marriage in South Africa is regulated by our Divorce Act and the Matrimonial Property Act. These acts do not require parties contemplating divorce to enter into divorce mediation. However, our courts have recently started increasing the pressure on legal practitioners to advise their clients to enter into divorce mediation before the parties are to appear in court. This pressure is evidenced in a number of recent judgments made by our courts and reflects a growing sentiment that divorce mediation is an important step in divorce proceedings.
Financial distress: your obligation to inform the public
In the last few years, many business owners have had to make difficult decisions to restructure their business in order to survive the economic recession. Family businesses were sold, assets made to money and unfortunate events even led to liquidation of businesses. Owners, understandably, often don’t keep perspective of their financial struggles and will do anything to salvage the business without taking formal steps or letting anyone know of its dire financial position. The following questions thus arise: At what point must you take formal steps to notify persons about your financial situation? Who needs to know? How much do they need to know?
Ignoring that speeding fine? Your one stop ticket to trouble
It’s another busy morning and you are in a mad rush to get the kids to school on time, you are going way over the speed limit when a traffic officer stops you, and despite your very best protestations awards you a “ticket”. You then decide to ignore the ticket in the hope that it will just disappear in a pile of endless paper work at your local traffic department. That is, until the Friday when you leave for that long-planned getaway to the Mozambique coast, where you are arrested at the border post, kept in custody until Monday and face charges of contempt of court. It then becomes apparent that the “ticket” you received was in actual fact a notice to appear in court.
New beach house: In my name or the family trust?
The holiday season is around the corner and Adrian would like to buy a beach house. He wishes to use this holiday residence mainly as a long term investment by renting it out to other holidaymakers in order to earn extra income. Adrian has also decided that upon his death the beach house must be bequeathed to his sons while his wife receives the rental income earned thereon. Adrian is one of many buyers that have the following question: In which entity should I buy my holiday home?
Can you recover losses from a dismissed employee?
Until recently employers have been reluctant to pursue civil action against former employees for losses suffered as a result of negligence by those dismissed employees. Despite being entitled to do so, employers take a pragmatic view of cutting their losses and carrying on with their business, shying away from further litigation. As a result the employer is often left with the task of repairing the damage done by the employee and restoring their reputation.
Grondeise: Wat elke koper moet weet
Elke boer se plaas is sy besigheid, sy trots, sy heenkome en dikwels sy nalatenskap vir sy kinders. Dus vereis enige besluit daaromtrent gesonde oordeel en dat risiko’s so gou as moontlik bekend gemaak en aangespreek word. Meeste boere en grondeienaars is bewus van die aard van ‘n grondeis en dat die betrokke wetgewing bepaal het dat 31 Desember 1998 die afsnydatum vir die instelling van grondeise was, waarvan vele nog onbeslis lê. Wat boere nie noodwendig weet nie is waarvoor om te kyk voor die aangaan van ‘n kooptransaksie ten einde te verseker dat hulle voldoende beskerm is teen ‘n grondeis wat later sy kop mag uitsteek.
POPI: Are you all set?
The protection of privacy in South Africa has undergone intense investigation over the last decade. In late 2005 the South African Law Reform Commission found that there wasn’t adequate protection and that a new, separate piece of legislation was needed for the proper protection of one’s personal information. This paved the way for the long process which is now finally coming to an end with the Protection of Personal Information Act (“POPI”) recently passed by the National Assembly and now awaiting enactment.
Debt Review: Manoeuvring through the thorns
The National Credit Act 34 of 2005 gave rise to the establishment of the Debt Counselling profession in South Africa.
The Amended BEE Codes of Good Practice
On 3-4 October 2013 the Department of Trade and Industry together with the Black Economic Empowerment Advisory Council hosted the first ever National B-BBEE Summit in South Africa. The Amended BEE Codes of Good Practice were announced at this summit and were published in the Government Gazette a week later, on 11 October 2013.