Yes, I have read the terms and conditions

English stand-up comedian Eddie Izzard once said “No one in the universe has read the terms and conditions”. He was of course referring to the terms and conditions of iTunes which we all blindly accept in the “ordinary course of our social business”. He went on further to say “anything could be in the terms [...]

To Litigate or to Arbitrate? You Should Ask that Question.

There are likely few ‘high stakes’ business men and women and (hopefully) fewer commercial attorneys who won’t be familiar with an arbitration clause. Typically, such a clause will oblige the parties to an agreement to refer any dispute arising from the agreement, to be determined by an arbitration tribunal in accordance with certain rules which [...]

Piercing the Corporate Veil

1.    Introduction The doctrine of the corporate veil suggests that the legal personality of a company and the personalities of its shareholders and directors are separated. The corporate veil is regarded as the general principle in terms of a company’s liability. It is clear that legal personality of a company can be disregarded in certain [...]

End of the Year message !!

Dear friends and clients, We are pleased to report that we have once again had a brilliant year thanks to your invaluable support. In 2014, we have managed to create tremendous value for our clients and have protected the interests of several clients successfully. From a strategic point of view, we have also grown our [...]

Estopple & Suspensive Conditions – Friend or Foe?

It is common practice within the commercial environment to conclude contracts which are subject to suspensive conditions or otherwise known as condition precedents (“CPs”). Whilst most CPs are relevant and necessary for a variety of reasons (dependent on the particular transaction), ensuring the accurate fulfillment of same is often not attributed the same level of [...]

The Business Judgement Test

Section 76 of the Companies Act No. 71 of 2008 (“Act”) sets out the partial codification of directors’ duties and liabilities. The partial codification of directors’ duties has effectively narrowed the scope of directors’ duties due to the statutory defence available to directors in the form of satisfying the test deemed the business judgment test. [...]

Selected Cheques and Balances of the NCA

A significant aspect to consider under the auspices of the National Credit Act 34 of 2005 (“NCA”) is when a repayment of a loan agreement is made by way of cheque and upon such cheque being presented for payment, the payment fails and the cheque is subsequently dishonoured. The notable question which emerges is will [...]

Sequestrating or Liquidating a Body Corporate?

The estate of a debtor who has committed an act of insolvency or who is in fact insolvent may be sequestrated. “Debtor” is defined in section 2 of the Insolvency Act No. 24 of 1936 (“Act”), as “a person or a partnership or the estate of a person or partnership which is a debtor in [...]

Unauthorised Distributions and the Dangers of turning a Blind Eye

It goes without saying that the primary goal of a profit company is to increase the wealth of its shareholders, by paying dividends and causing the price of the company’s shares to increase. The company’s board is entrusted with managing the business and affairs of the company in the interests of the company’s shareholders, as [...]

Insolvency and Partnerships

Introduction From the moment a partnership is sequestrated, its creditors are mostly confined to the partnership assets and inevitably deprived of any recourse against the partners individually.  According to Michalow v Premier Milling Company Limited 1960 (2) SA 59 (W) (“Michalow case”), a partnership is treated, for purposes of insolvency law, “as a separate entity [...]

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