Do Employees Owe a Fiduciary Duty to Their Employer?

Section 76 of the Companies Act No. 71 of 2008, the (“Act”), provides for a partially codified system of directors’ duties.  In terms of this section, a director must always carry out his fiduciary duties of having to act in good faith and in the best interests of the company.   It is therefore commonplace [...]

“trading as” – the Legalities

It is common practise that companies often trade under names other than their name which is registered with the Companies and Intellectual Property Commission (“CIPC”), for example “Winsoft (Pty) Ltd t/a Software Industries”.   Logically, such trade names may not be the same as any other company name or trademark. Selecting such a trade name [...]

The Legal implications of the Voetstoots clause

  When you buy something there is an implied warrantee that the merx (object of sale) is free from any defects. It is however possible, that one can contract out of this implied warranty by inserting an exemption clause into the contract that says that the sale is voetstoots. The term voetstoots is a Dutch [...]

Voting Rights of Concurrent Creditors in Business Rescue Proceedings

Introduction Concurrent creditors are creditors who have neither secured nor preferent claims against the company and they are paid out of the free residue (i.e. the unencumbered part of the company’s assets) after any preferent creditors have been paid. They rank equally, and if there is not enough money left in the free residue to [...]

Discussion with the UK Minister of Justice

I was fortunate to be invited to a UK and South African legal services networking event hosted by the  Honourable Minister Shailesh Vara MP, the UK Parliamentary Vice Secretary of State for Justice and UK Trade and Investment Commission. The Minister is in South Africa to meet with UK and South African legal practitioners and to explore [...]

Information Sharing And Anti-Competitive Behaviour

Information sharing between competitors remains a murky area of competition law in South Africa.  It is not always clear when pro-competitive information exchange ends and collusive conduct begins. Let us consider the example below: Company X and Company Y, both domestically incorporated companies, are involved in the exportation of farming machinery.  Most of their business [...]

Void vs Voidable

  An agreement that is unenforceable from the moment it is created is void ab initio (or void from the outset). Examples would be that the contract did not possess any one of the essentialia of a valid contract as at the time of conclusion and therefore a contract could never have been created. The following are [...]

A Founder’s relationship to the Beneficiaries of a Trust

The founder creates a trust relationship embodied in the trust document in terms of which he gives the trustees of the trust the power to exercise control over the trust assets in accordance with the terms and conditions of the trust deed for the benefit of the beneficiaries. A founder can be any of the [...]

The National Credit Amendment Bill: Putting Black Listing in Check

At the end of February this year the National Assembly unanimously adopted the National Credit Amendment Bill of 2013 (“the Bill”). The purpose of the Bill is to introduce or amend important changes in terms of the National Credit Act 34 of 2005 (“the Act”). Its objective is to ensure certainty and clarity where the [...]

Corporate Law in the wider sense

When corporations and companies are established, there is an interaction among stakeholders (consumers and the community) and shareholders (owners of stocks in corporations). These two parties make the existence of a corporation possible: the stakeholders providing the profit of a corporation, and the shareholders providing capital to corporations. Without one or the other, a corporation [...]

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