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So far pietervdm has created 289 blog entries.

Executive and Non-Executive director’s fiduciary duty: beware!

The rewarding and prestigious benefit that generally comes out of holding numerous executive and non-executive directorships is fast becoming a gain which directors will seek to avoid as it contributes to increased vulnerability on the part of directors who do not have the requisite experience or time to devote to their fiduciary obligations to companies on whose boards they participate. There is no distinction between the liability of executive and non-executive directors. South African common law has always imposed on directors a separate and distinct fiduciary duty to the company. In this fiduciary capacity, a director assumes two roles, as an “agent” acting on behalf of the company, and as a trustee who controls company assets. Continue reading “Executive and Non-Executive director’s fiduciary duty: beware!” »

Doing business in Africa, forthcoming changes

Africa has been considered as a notoriously difficult place to conduct business in. However, as a result of the drive by three regional trading groupings being the South African Development Community (SADC), the Common Market for Eastern and Southern Africa (COMESA) and the East African Community (EAC) regional integration will be deepened. SADC, COMESA and EAC are aiming to create a free trade area with 26 Members States from Egypt to South Africa termed the COMESA-EAC-SADC Tripartite Free Trade Area. Continue reading “Doing business in Africa, forthcoming changes” »

Derivative actions in terms of the Companies Act

A derivative action is an action which can be brought on behalf of another. A derivative action is a remedy which is effective and which is unfortunately sometimes overlooked. The derivative action was only available to shareholders in terms of the 1973 Act. The ambit of interested parties has been extended in the New Companies Act to directors, officers, and trade unions. Even employees can bring a derivative action against a company. Continue reading “Derivative actions in terms of the Companies Act” »

Competition law on joint ventures & special purpose vehicles

With regards to any joint venture in whatever form – a company, partnership or in any other form, it is prudent to consider the application of competition law on the joint venture and/or special purpose vehicles.  We provide herewith an Update issued by the Competition Commission regarding these matters. While this Update is not binding on the Commission, it sets out the approach the Commission is likely to adopt in respect of certain transactions and may be updated from time to time to account for future developments. Continue reading “Competition law on joint ventures & special purpose vehicles” »

Legal Update November 2011

When Can Creditors Attack Trust Assets?    Trusts can be valuable estate planning tools, and are often legitimately used to protect assets from the risks of business failure. They must however be structured and administered correctly and lawfully otherwise, as illustrated in a recent High Court case, they are open to attack by creditors.  The facts were that a couple owed a bank in excess of R56m. The bank established that the couple had no assets in their own names, but that two trusts controlled by them held substantial assets, including their family home, furniture and other contents. The bank applied for, and obtained, a court order declaring the assets of both trusts to be assets of the couple personally, and therefore executable to satisfy the personal debt. Continue reading “Legal Update November 2011” »

Legal Update October 2011

Buying Property For A Company-To-Be-Formed: Watch Your Wording!    You have found the perfect property, at the right price – now can you buy it in the name of a company that has not yet been incorporated?   Indeed you can – a “pre-incorporation contract” is intended to bind the company as and when it is formed. But don’t – in the excitement of the moment – sign anything until you have taken proper advice. It is essential to word the agreement so that the statuses of both the signatory and of the proposed company are clear. Otherwise, as happened in a recent High Court case, you risk having to pay your legal team to argue over complex legal issues with intimidating names like “stipulatio alteri”. In that case, a property sale agreement was held to be invalid for want of strict compliance with the requirements of the Companies Act. Continue reading “Legal Update October 2011” »

Legal Update September 2011

PAIA Manuals – Final Deadline Looms!   It’s six years now since we were all bombarded with warnings to comply with the Promotion of Access to Information Act (PAIA), which requires all public and private bodies to prepare, lodge and publish (including on any website you have) a PAIA information manual.   Then, at the last minute (literally), most smaller businesses were let off the hook – their original deadline of 31 August 2005 was extended until 31 December 2011. At the time, hopes were expressed that small businesses might be exempted altogether. Continue reading “Legal Update September 2011” »

Escrow agreements

We have been involved with a series of escrow arrangement the past weeks. An escrow is an arrangement made under contractual provisions between transacting parties, whereby an independent trusted third party receives and disburses money and/or documents for the transacting parties, with the timing of such disbursement by the third party dependent on the fulfilment of contractually-agreed conditions by the transacting parties. The word derives from the Old French word escrow, meaning a scrap of paper or a roll of parchment; this indicated the deed that a third party held until a transaction was completed. In my experience escrow arrangements were usually entered into between two parties and an escrow agent in terms of which the escrow agent is keeping software source code in escrow (in trust) and to make it available to the user -party in the case for instance of liquidation of the provider party. Continue reading “Escrow agreements” »

Public interest score in terms of the Companies Act

The Public Interest Score ("PIS") is to be determined at the end of each financial year by each Company. PIS= a+b+c+d Where:   a  =  average number of employees during the financial year   b  =  one point for every R1m in 3rd party liability at the financial year end   c  =  one point [...]

Legal Update August 2011

  The Restraint of Trade That Sank The Sushi Bar   When you buy a business, think about whether the goodwill you are paying for will be damaged if the seller starts up a new business in competition with you. If so, a “restraint of trade” clause is essential, but beware – it must be properly drawn to be valid. Our courts will not enforce any restraint that is unreasonably wide in nature, geographical area, or duration.   Having said that, as a recent High Court case shows, even a widely-worded restraint clause can still be perfectly valid. The clause in question restricted the seller of an Italian-style restaurant from carrying on any similar business, and in particular provided that she could not compete with the buyer “in any form of Restaurant / Coffee Shop Business” for 3 years.   Continue reading “Legal Update August 2011” »

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