Company and legal news
Published on May 9, 2024
The “clean hands principle” is a species of the power of Courts to prevent an abuse of process. In terms of the doctrine, the delinquent party cannot avoid the consequence of his immoral or illegal contract in subsequent legal proceedings - in pari delectio potior est condictio defendentis.
Published on May 5, 2023
The requirement that agreements entered into must be honoured is an age-old international principle of law and is well-recognized in S.A. Law. The pacta sunt servanda principle dictates that obligations created in terms of agreements must be honoured. Parties who enter into contractual agreements with the required intent are obliged to respect these agreements. Courts are generally reluctant to deviate from this principle.
Published on March 20, 2023
A prominent firm of attorneys was recently held responsible by the High Court of South Africa for failing to protect a depositor of funds against cybercrime. The decision highlights the importance to attorneys to adopt and employ suitable measures against cybercrime.
Published on March 1, 2023
Nowadays everybody is subject to the fast pace of modern life. Access to internet and cellphones contribute to the demand for instant results. However, some important decisions need proper consideration and understanding of all the complications associated therewith.
Published on December 13, 2022
An INDEMNITY is created where an insurer, for instance, indemnifies the insured (client) against damages as a result of the insured's or a third party's actions. The insurer's obligation to pay is contingent on the negligence of a third party. Therefore, there must be a finding of liability against the third party for the insurer to be liable. Prescription therefore begins to run against the insurer on the date or which the insured was found liable to the third party in a determinate sum.
Published on December 2, 2022
It was for many years a well-established principle of company law that a company was not able to purchase its own shares, even if its Memorandum of Articles of Association provided that it may. The purpose of the principle was to preserve a company's capital in the interest of creditors and to protect shareholders against directors who may have wanted to strengthen their hold on the company.
Published on November 17, 2022
Attorneys are often approached to assist with claims for the division of the difference between the accrued assets of spouses upon divorce or death. The antenuptial contract entered into by the parties prior to marriage is always the starting point in such investigations.
Published on November 3, 2022
When parties married prior to 1 November 1984, out of community of property, they knew and understood that they will each have separate estates. They specifically elected not to have a marital regime of in community of property or a regime of out of community of property, but subject to the accrual system.
Published on October 20, 2022
The general rule is that companies are only responsible for the actions of individuals in circumstances where the individuals acted as the duly appointed representative of the company. An extract from minutes of a meeting of directions of a company usually indicate that the representative had been authorised to act in a certain fashion.
Published on October 13, 2022
Women married according to Sharia law and children born from such marriages are subject to severe difficulties upon dissolution of such marriages, either by divorce or death. The fact that such marriages are not recognized by the marriage Act, the Divorce Act and the Recognition of customary marriages Acts infringes on the dignity of Muslim women and children.
Published on October 6, 2022
Lawyers and lay-people often use the above phrase on all of their correspondence. Correspondence that is related to legal proceedings are simply marked without prejudice, when it should not be. The reason behind marking correspondence as such is to ensure that same are excluded as evidence in any litigation. The marking of correspondence in this indiscriminate fashion may be regarded as an attempt to conceal information from a court.
Published on October 5, 2022
Also consider the following as said by Kirk-Cohen J in in Law Society, Transvaal vs Matthews 1989 (4) SA 389 (T) at 395: The attorney is a person from whom the highest standards are expected by the profession and the court. The profession is not a mere calling or occupation by which a person earns his living.
Published on September 29, 2022
In general, the rules of natural justice require that parties be informed of proceedings against them. When a party sues for a decree of divorce, the other party generally receives notice in the form of a Summons for the required legal aid. This is in order to enable the receiving party to consider its options in the proceedings.
Published on September 22, 2022
A survey in the U.S.A amongst 10,000 clients found that honesty and integrity are the most important qualities expected from their legal representatives. This finding seems odd in view of the fact that in South Africa all or most legal representatives are often perceived as being prone to bending the rules' in favour of their clients. Honesty and integrity in South Africa seem to play second fiddle to the desire to make money.
Published on September 8, 2022
Rule 6 (6) of the Magistrate’s Court Rules requires a party to provide a copy of a contract or part thereof if relied upon and to attach same to the pleadings concerned. Rule 6 (6) states that a party relies on a contract shall state whether the contract is in writing or oral, and when, where and by whom it was concluded, and if the contract is in writing a copy thereof or the part relied upon in the pleading shall be annexed to the pleading.
Published on August 24, 2022
Most Deeds of Sale contain breach clauses that in the event of a contractual breach by the Purchaser that is not rectified within a certain number of days, the Seller can cancel the agreement and retain all monies as part of the purchase price as “rouwkoop” or liquidated damages. Offers to Purchase of Properties often contain clauses of non-refundable deposits. The question is whether any such agreed “rouwkoop” and/or non-refundable deposit can be retained irrespective of the quantum thereof?
Published on August 18, 2022
In RC vs. HC 2022 (4) SA 308 (GLD) the Court dealt with this issue: The applicant had met the respondent at a time when the respondent was already pregnant. They started a relationship and when the child was 1 year old, they moved in together. The applicant played a role in raising the child for the next 10 years. Although the applicant formed a close bond with the child, the applicant’s and respondent's relationship terminated.
Published on August 12, 2022
In the matter of Capitec vs. Coral Laaoon 2022 (1)SA 100 (SCA) the SCA considered the effect of the Appellant's alleged breach of its contractual as well as its common law duty of good faith towards a party to a contract (Coral Lagoon). The argument was that the Appellant had failed to act in good faith and that since good faith is a duty that underpins the contract and arisen at common law, this failure should provide a basis for the Court to intervene.
Published on July 21, 2022
Although a body corporate’s decision may not be reviewable under PAJA, it remained reviewable under common law. Although the trustees’ decision to prohibit Bae Estates (an estate agency) to operate within its scheme was not an administrative decision as envisaged in PAJA and therefore not reviewable in terms of PAJA, it remained reviewable under common law.
Published on July 4, 2022
Attorneys are often confronted with arbitration clauses in agreements between parties in terms whereof disputes between the parties should be referred for arbitration. Apart from contractual arbitration clauses, some legislation contains its own statutory arbitration clauses. At what stage can a dispute be referred for arbitration and what is the procedure regarding an application for stay of litigation proceedings pending a referral for arbitration?
At MW Attorneys we believe that quality of services counts and not quantity. We believe in sincere and continuous communication with our clients and we strive to deliver services of the highest quality, as we have been doing since 1997. We regard our clients as our most important asset!
00
Years