News & Articles
The small print of franchise agreements explained
To start a franchise business can be a formidable and monstrous experience. The drive behind the franchising movement is threefold. For business owners to expand their business through franchising the risk is much lower due to the fact that the costs pertaining to expansion is shifted to the franchisee. The business will grow in a much shorter period and the franchisee is not only another employee in the business: he is the manager of his own business. It is true that not all types of businesses can implement the franchising scheme. In order to adopt the franchising scheme the fundamentals of the business should be easily duplicated. Usually franchise agreements relate to businesses involving the sale of detailed goods and/or products or the implementation of a system that is unique in that sector of business. Franchising is the use of someone else’s business model or structure that proves to be pioneering forward and is successful in the market.
Van der Merwe du Toit inc. BEE Verification Certificate
Van der Merwe du Toit inc. BEE Verification Certificate
What to do about the bull on my bonnet?
Motorists on our South African roads are exposed on a daily basis to the very real risk of colliding with an animal. Road signs on our roads warn motorists against anything from penguins to hippos, cattle to porcupines, all which might be found crossing a road somewhere in the country.
The BEE net widens: don’t get caught out
You may feel that your business is immune to the requirement to comply with Black Economic Empowerment (BEE) or that these requirements are not relevant to your business. Yet the reality of the pervasive effect of South Africa’s BEE legislation and accompanying codes and charters is that your business may not be as immune as you think, and if it still is, it may not be so forever. Authorities are drawing the net tighter to include more and more businesses as the application of BEE is widened across the board.
Tax implications of an interest-free loan to your subsidiary company
Holdco (Pty) Ltd has recently established a subsidiary company Subco (Pty) Ltd. As a new company, Subco is in need of a cash injection. Accordingly, Holdco provides a voluntary interest-free loan to Subco to help it out with some much-needed capital to help grow its business. But what are the tax implications of this interest-free loan, if any?
Sports contracts: real deal or paper cuffs?
How often does it happen that we’re up in arms when our favourite sports player just goes off and signs a new contract with a new club or team? To most of us, it seems disloyal. Aren’t these players bound to their teams by some form of contract? Why do the clubs not enforce these contracts, or are these players ‘above the law’? The short answer is, yes players are subject to their sport contracts, but these contracts may not always be as legally binding as one would generally expect of a contract.
VDT Soccer vs The Pretoria Deeds Office
VDT’s infamous football team has once again played against our fierce rivals, the team of the Pretoria Deeds Office. Having played them a few times, we knew that it would not be a walk in the park. It was near perfect conditions, except that our team might not have been conditioned all that well for a 70min football match…
VDT Rolbal
VDT personeel het...
University of Pretoria Open Day 2014
The Law Faculty of the University of Pretoria held its annual Open Day for law students on the 22nd of February 2014.
Removal of a trustee who is unwilling to resign
A trust is a structure into which cash or assets (“trust property”) are transferred by the founder of the trust and which trust property is administered by the trustees on behalf of one or more beneficiaries in accordance with the trust deed. As administrators of the trust property, it is extremely important that the trustees work together and act in the best interest of the trust beneficiaries and execute their duties as required by the Trust Property Control Act (”Act”) and the Master of the High Court (“the Master”). The question which arises is what options are available if a trustee does not execute his mandate in the best interest of the trust beneficiaries, but is unwilling to resign as a trustee?
If my home loan is paid up, should I keep my account open?
Mrs Brown bought a house and registered a mortgage bond in favour of Bank X to finance the sale. She also opted for the home-owners’ insurance, an option provided by Bank X to insure the property against damages as a requirement of the home loan. After a period of 20 years Mrs Brown has finally paid the last outstanding instalment on her home loan. Mrs Brown felt relieved to finally own her home free from any debt.
Muslim marriages officiated in terms of South African law
For over 300 years Muslim spouses and children suffered discrimination due to their traditional religious marriages not being recognised in terms of South African law. Accordingly, Muslim women were denied spousal benefits such as the right to inherit intestate and to claim maintenance in terms of the Maintenance of Surviving Spouses Act 27 of 1990. Children from such marriages were labelled illegitimate, with attendant adverse consequences arising from this status. Previously, Muslim couples had to have their traditional marriages converted to civil marriages by way of a separate civil ceremony in order for it to be officially recognised and protected as valid marriages.
Tread carefully when considering a character reference
Out of the blue you get a call from an organization asking you for a character reference of a previous employee. Your path with this employee did not part on the best of terms, and he did not even have the decency to ask you if you would be prepared to provide a character reference, so you decide to sabotage his chances of being appointed. A month later, the incident long forgotten, you are cited as the defendant in a defamation case and sued for damages by this previous employee. What does our law say in respect of the employer being asked for a character reference and the employee who received a false character reference from an employer?
Evicting the Unlawful Occupier: Why the PIE is not always so tasty!
It is now the third month in a row the tenant has failed to pay his rental, and it doesn’t look like this tenant will ever be in a position to make up the outstanding rent. Can you quickly evict the tenant and replace him with a new one, or is it not quite that easy? What does our law say?
Agreements of sale: the “real agreement” vs the “underlying agreement”
Section 2 of the Alienation of Land Act 68 of 1981 (the “Act”) determines that no alienation of land shall be of any force or effect unless it is contained in a deed of alienation signed by both parties or their duly authorised agents. Therefore, concluding an agreement sale will always be the first step in the process of selling immovable property. The mere signing of such an agreement by the seller and purchaser, will not automatically give rise to the transfer of ownership in that immovable property.
The priority elements under the new BEE codes: Easy pickings or a game changer?
Since the advent of BEE legislation, businesses have become more aware of the importance of complying with BEE requirements. Yet, under the old BEE Codes of Good Practice, many businesses still managed, without too much effort, to meet the basic requirements for compliance, and often did not embark on sustainable procedures to become actively involved in transformation and BEE compliance. The amended BEE Codes published in October 2013 have changed this with the introduction of priority elements with which businesses must comply.
Annual leave: take it before you lose it!
Can an employee accumulate leave on an unlimited basis with the expectation that on termination of employment, he may recover from the employer, without any limitation, the full remuneration for leave accrued but not taken by him during his employment with the employer?
National Credit Amendment Bill: No more reckless lending
Loopholes in the National Credit Act (“NCA”) have to date made it possible for credit providers to avoid certain provisions which were intended to be mandatory. The National Credit Regulator conducted a policy review of the NCA in order to identify remedial actions for problems that have hampered the effectiveness of the NCA. As a result, the National Credit Amendment Bill has been drafted to seek, amongst other things, to curb reckless lending by creating a uniform affordability test for prospective lenders.
Bye-bye exemption clauses?
When a consumer and supplier conclude a contract, it is easy for a consumer to concern himself with the apparent key provisions of the contract such as the contract value, duration, payment terms, delivery dates etc. and not focus on clauses dealing with the exemption of liability of the supplier. In the past these exemption clauses were often one-sided, unfair and biased against the consumer prejudicially affecting the rights of the consumer against whom the exemptions were enforced. With the advent of the Consumer Protection Act (“CPA”) these clauses have been curbed. But are they completely outlawed, or can contracts still have exemption clauses?
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.