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Firm news
Daantjie Malan claims masters doubles gold in Spain
Our founding partner, Daantjie Malan, and Simon Willmott celebrate masters doubles gold after a winning paddle in La Vila Joiosa, Spain.
Family and relationships
Cohabitation Agreements and Their Importance in South African Law
Cohabitation, often referred to as a “domestic partnership,” occurs when two people live together in a relationship resembling marriage without being legally married. In South Africa, such relationships have become increasingly common as more couples choose…
Family and relationships
Marital Regimes in South African Law
Marriage in South African law is not only a union of two people but also a legal relationship with specific financial consequences. The matrimonial property system chosen by spouses determines how their assets, debts, and financial responsibilities are mana…
Estates and wills
Selling a Property from a Deceased Estate in South Africa
When a loved one passes away, many families think selling their property will be quick and simple. Unfortunately, it’s not quite as straightforward as a normal property sale. Properties that form part of a deceased estate must follow specific legal steps un…
Property and conveyancing
Sectional Titles in South Africa: What You Need to Know Before You Buy or Rent
If you’ve ever lived in an apartment block, townhouse, or gated complex, chances are you’ve experienced what’s known as a sectional title scheme. And if you are thinking of buying property, especially in urban areas, it’s very likely you’ll come across this…
Estates and wills
Executor, Attorneys & Your Will: What You Need to Know to Protect Your Legacy
Most people think a will is just a document that says who inherits what upon a person’s death. In reality, it’s only one piece of a much bigger puzzle - your estate plan.
Estates and wills
Why Having a Will is Important
Thinking about death is never easy, but preparing for it is one of the most important acts of care you can show your loved ones. A will is not just a legal document, it is a way to ensure your wishes are honoured, your family is protected, and your assets a…
Technology and privacy
Artificial Intelligence (AI) and the Law in South Africa
Artificial Intelligence (AI) is no longer just for big tech companies. Whether it’s the chatbot on a customer service website, facial recognition in security systems, or software that screens employees, AI is becoming part of every person’s daily business a…
Property and conveyancing
The Mandament van Spolie Principle and Consent in Property Possession
The Mandament van Spolie is a cornerstone of South African common law, safeguarding the possession of property by swiftly restoring possession to those unlawfully deprived, irrespective of their legal entitlement to the property itself.
Commercial and general litigation
SECTION 34 OF THE INSOLVENCY ACT – PURCHASERS BEWARE
Section 34 of the Insolvency Act1 (hereinafter referred to as “the Act)” can be defined as a safeguard for the interests of South African creditors. Section 34 mandates that, before a business or its assets are sold, public notice must be given in the form…
Property and conveyancing
Can a Landlord deduct or withhold money from a Tenant’s deposit?
In South Africa, the security deposit provided by a tenant upon entering a rental agreement serves as financial protection for the landlord. It is intended to cover costs related to damages, unpaid rent, or breaches of the lease terms. However, disagreement…
Technology and privacy
Developments in the South African Legal Framework: Consumer Protection in the Era of Crypto Assets
The term "cryptography" originally meant hidden writing in Greek and has given rise to crypto assets or cryptocurrencies, which have transformed the financial sector by offering new opportunities for financial inclusion and faster, cost-effective transactio…
Property and conveyancing
Exclusive use areas in Sectional Title Schemes – The Fundamentals
As sectional title schemes continue to increase across South Africa due to various economic and socio-economic factors, it is inevitable that questions and, more often than not, disputes arise from certain unfamiliar and confusing terms which emanates from…
Family and relationships
Parental Liability for School Fees Under Maintenance Orders. Shared Responsibility or Sole Burden?
In terms of our common law, both parents are jointly and severally liable for the payment of maintenance of their child. Among the requirements for maintenance are the provision of basic needs including food, clothing, housing, and education. Particularly,…
Family and relationships
Domestic Violence Amendment Act and the horrific repercussions it holds
The Domestic Violence Amendment Act 14 of 2021 (“New Act”) came into effect on 14 April 2023 as per Proc R117 GG48419/14-4-2023. The New Act intends to address two problem areas in South African law; the country’s pervasive problem of gender-based violence…
Commercial and general litigation
Rights of Homeowners when a Contractor Fails to Perform: Consumer Protection in Service Agreements
Renovating your home is an exciting yet often stressful endeavour. You rely on contractors to bring your vision to life, expecting quality workmanship delivered in a timely manner. However, there are times when contractors do not meet these expectations, ei…
Family and relationships
Domestic Violence in South Africa and recent amendments to the Domestic Violence Act.
Domestic Violence is one of the most common crimes committed in South Africa. According to official statistics, one in five women in relationships have experienced physical violence from a male partner. Many more have suffered other forms of violence by men…
Commercial and general litigation
You have been served with a Summons, what is your next step?
A civil Summons can be defined as a legal notice, which sets out the legal claim wherefore a Plaintiff institutes action against a Defendant.1 A Summons is regarded as the first step in the litigation process, and is served on a Defendant by the Sheriff, on…
Commercial and general litigation
The Exceptional Exception
The Law of Civil Procedure. It is a subject most law students dread but it is also the subject in which one as a young attorney in the making acquires the most knowledge with regards to the litigation procedure. Slowly as you start litigating more frequentl…
Media
MLV on Radio Helderberg
Click here to listen to the legal professionals from Malan Lourens Viljoen share insight into the legal world.
Family and relationships
Changing your Matrimonial Property Regime
In South Africa a rebuttable presumption exists that a marriage is governed by the marriage in community of property proprietary system unless the presumption is refuted.1 This presumption can be refuted by a number of ways, including having entered into a…
Property and conveyancing
Collection of Arrear Levies
1. Introduction A levy is a monthly payment that must be made by all owners in a sectional title scheme, to the body corporate or managing agent of the said scheme. 1 A body corporate collects levies to cover the general expenses of running a sectional titl…
Commercial and general litigation
Piercing the Corporate Veil: Director Liability
A director of a company has a fiduciary duty to act in the best interests of a company as enshrined in our common law. This duty was partially cemented within Section 76 of the Companies Act.1 Section 76(3) for example states that a director must in all ins…
Family and relationships
Foster Care
Foster care – refers to children being in need of care and protection and being provided with the necessary care and protection.1 According to Government website, the definition of foster care is as follow:
Employment
The Retrenchment Process
It is clear from the wording in section 189 of the Labour Relations Act 66 of 1995 (“the LRA”) that this section permits employers to dismiss employees based on their operational requirements on condition that this is done in both a substantive and procedur…
Employment
Contractual Retirement Age
One of the most fundamental building blocks of any employer and employee relationship is that of the employment contract. An employment contract should stipulate the rules with regards to office conduct, leave, vacation days and your retirement age. Obvious…
Family and relationships
Unconstitutional Divorce Act
The Pretoria High Court recently delivered a judgment on the Constitutionality of section 7(3)(a) of the Divorce Act 70 of 1979.1 The Matrimonial Property Act 88 of 1984, which only commenced in November 1984, makes provision for three different marriage re…
Commercial and general litigation
Gentlemen's Agreements
Contracts are entered into and created every day in South Africa. Most transactions like buying a soft drink at your local supermarket will be regarded as a contract in terms of our law. You are entering a consumer contract with the relevant retailer for th…
Family and relationships
Maintenance - a Judgement debt
Child maintenance – the duty exists, but what if there is non-compliance? When one divorces from one's spouse, there is most likely a maintenance clause in the settlement agreement that has been made an order of court. However, the question that arises is w…
Estates and wills
Will your reputation harm your contract with a Bank
In terms of US law there is a term referred to as “specially designated national.”1 A specially designated national is an individual (or it could be a company) who are owned and controlled by countries targeted with sanctions by the US. This means a special…
Family and relationships
Permanent Life Partners
In modern times, it is difficult to believe that permanent life partners do not receive more rights, as J Madlanga stated; they are seen as "legal strangers" considering laws of Maintenance and Inheritance.1 A permanent life partnership refers to either het…
Commercial and general litigation
Fairness and Contractual Validity
The South African law of contract dictates that no contract (or a term within the contract) or the enforcement thereof may be against statute or the common law. If so, the contract is labeled as either void, or valid (but unenforceable), depending on the re…
Commercial and general litigation
The Law of Defamation and the Right to Freedom of Speech
Every person has the right to freedom of expression in terms of section 16 of the Constitution of South Africa, 1996 (“the Constitution”). It is however very important to remember that this right, along with all other human rights contained in the Constitut…
Family and relationships
Different Marital Regimes
Whilst planning a wedding couples place their focus more on the ceremony, the dress, the décor and food. It is however an unfortunate reality that sometimes couples tend to overlook the legal aspects of getting married and the potential ramifications of suc…
Commercial and general litigation
Suretyship: The Meaning and Implication thereof
Nowadays signing as a surety becomes a prerequisite for almost any agreement. Surety is when a person binds himself contractually on behalf of someone else’s debt and accepts liability where the latter person defaults.
Family and relationships
Relocating with Minor Children Post Divorce
Relocating to another province, or even overseas, is something often considered once a final order of divorce has been granted. Relocating with minor children is somewhat trickier as the relocation of a primary caregiver with his/her child(ren) greatly impa…
Estates and wills
The Role of the Executor
During a person’s lifetime one will gather assets in other words, belongings such as a house or a motor vehicle. A person will also gather liabilities, in other words, credit such as a home or motor vehicle loan. These assets and liabilities accumulated ove…
Commercial and general litigation
Acts of Insolvency
A debtor can commit eight (8) acts of insolvency which is stipulated in section 8 (a) to (h) of the Insolvency Act 24 of 1936 (“the Act”). Before considering the acts, it is important to understand who or what is classified as a debtor in terms of the Act a…
Technology and privacy
The Protection of Personal Information Act
In the past couple of weeks, most of us would have probably received either a WhatsApp message on our cell phones or an email from a business entity asking for your permission to provide access to your personal information in their possession. This has forc…
Commercial and general litigation
Substituted Service vs Edictal Citation
You enter a marriage with the purest of intentions, however once your marriage relationship has broken down irretrievably to such an extent that there is no reasonable prospect of the restoration of a normal marriage relationship, a divorce might be your on…
Commercial and general litigation
Restraint of trade and the effect thereof
A restraint of trade clause is a standard contractual clause in a service agreement entered into between the employer and employee (herein also referred to as “the parties”) for the benefit of the employer. The purpose of a restraint of trade is to protect…
Criminal law
Unreasonable Postponement in Criminal Trials
One of the rights afforded to South Africans in the Bill of Rights, is the right to a speedy trial, as encapsulated in section 35(d). Section 35 states:
Criminal law
Dronkbestuur
The current blood alcohol limit is an alcohol content in the blood not exceeding 0,05 g per 100 ml and the current breath alcohol limit is an alcohol content in the breath not exceeding 0,24 mg per 1000 ml.
Employment
Unfair dismissals in the Workplace
The point of departure when one is considering whether a dismissal is unfair will have to be to consider what is meant by the term ‘dismissal’ when used in the workplace. As a rule, dismissal means the termination of employment by the employer.1 This defini…
Estates and wills
Till Death Us Do Part
At 17.6% the South African divorce rate is low in comparison to world standards however the sad and unfortunate truth is that according to the latest statistics released by Stats SA, one in five marriages end up in divorce.
Commercial and general litigation
Consumer Protection Act - Cancelling Bookings
At this point of time where the Disaster Management Act’s Regulations are amended regularly to combat the COVID-19 spread, no gathering or “get away”-plans are certain anymore. Planning ahead and booking services becomes more challenging. For some, it’s jus…
Family and relationships
Cohabitation Relationships
In today’s day and age, you will find that more couples are living together without ever formalizing their relationship by way of a marriage ceremony concluded in terms of the Marriage Act1, Civil Union Act2 and the Recognition of Customary Marriages Act.3…
Commercial and general litigation
Partnerships and the Essentialia requirements
A partnership is the most common form of operating a business as no formalities are required. A partnership is established by contract and regulates the relationship between two (2) or more individuals. Contractual freedom applies here and therefore you are…
Commercial and general litigation
Option to Contract
In today’s society, people tend to act more rationally. They make well-considered decisions to ensure a more desirable outcome. With that said, people may take longer to make decisions and bind themselves contractually. Therefore, the pacta de contrahendo,…
Family and relationships
Parental Responsibilities and Rights of South African parents
The relationship between a parent and child is one of the most unique and intimate relationships that the law attempts to regulate, both within a national and international context. Prior to the inclusion of chapter 3 in the Children’s Act1 dealing with par…
Estates and wills
Succession of a Deceased Estate
Succession forms part of private law, which creates rules that govern administration of a deceased persons estate. The general rule for succession, is that the person must have passed away. When a person passes away, he leaves behind an estate that devolves…
Commercial and general litigation
E-Commerce Signatures
Signatures play an important role in the approval of a document and the verification of the person that approves the content of the document. A signature gives certain attributes to a document and creates a rebuttable presumption that the document is origin…
Commercial and general litigation
Business Rescue - All is not lost yet
In these harsh economic circumstances we find ourselves in, it can be difficult for all businesses, from small enterprises to large ones, to survive financially. More and more businesses are unable to meet their financial obligations when it falls due and c…
Commercial and general litigation
Another COVID-19 Relaxation
After the stranglehold of stage 5 was relaxed, stage 4 was welcomed with open arms. On Thursday night the 7th of May 2020, Nkosazana Dlamini-Zuma announced a further relaxation in Stage 4.
Family and relationships
Surrogacy in South Africa
The decision to have a child of one’s own has for thousands of years formed a central part of the lives of human beings. The reality is that infertility is on the rise, and for some women the possibility of carrying their own child is very little. Fortunate…
Estates and wills
Choosing your Attorney as Executor
Your executor is the person who carries out your instructions in your last will. A person can choose anyone they like, however one must realise that it is a very important choice to make. By choosing your executor one must also ask the question as to who yo…
Commercial and general litigation
E-Commerce Legal Recognition "in writing"
Living in the 20th century most people are focused on efficiency and effectiveness. Getting things done swiftly and promptly. That’s why handwritten letters are replaced by green messages and e-mail notifications. The postman has been retrenched because the…
Commercial and general litigation
Classes of Shares
Section 36(1)(a) of the Companies Act 71 of 2008 (“the Act”) provides that a company’s Memorandum of Incorporation (MoI) must set out the classes of shares and the number of shares in each class. The Act further provides that the preferences, rights, limita…
Family and relationships
How to Change your Marital Regime
The excitement surrounding entering into a marriage can often be overwhelming and lead to the spouse’s judgment being clouded when having to deal with the legal aspects of marriage. In our law, it is of extreme importance to enter into an ante-nuptial contr…
Criminal law
Driving under the Influence and the Law
With the festive season fast approaching, it is becoming increasingly important for drivers to be extra cautious on our roads. In 2017 approximately 14 050 people were killed as a result of road accidents within the Republic of South Africa. This amounts to…
Property and conveyancing
Rights of Long Term Lessees under the (Land) Restitution Act
Land expropriation and restitution without compensation are presently some of the most pressing concerns on many South African landowners’ minds. Despite some of these concerns being allayed in light of the seemingly reasonable approach the State has sugges…
Employment
How can Employers guard against Claims for Injury on Duty
It is always an interesting question to ask who is liable to pay when an employee is injured on duty. Due to the regular occurrence of injuries on duty, every employer has a common law obligation to create a safe working environment for their employees, reg…
Family and relationships
Antenuptial Contracts
The default matrimonial property law regime in South Africa is a marriage in community of property. This ensures that should the parties to the marriage enter into no agreement prior to signing the marriage register, the parties will be perceived to be marr…
Family and relationships
Cohabitation Relationships and it's Consequences
Cohabitation Relationship is defined as a permanent relationship between two or more persons who live together without being married in terms of the Marriage Act, Civil Union Act or Recognition of the Customary Marriages Act.
Commercial and general litigation
Protection of Minority Shareholders
Minority shareholders in both Companies and Close Corporations (members) enjoy a measure of protection against unfairly prejudicial, unjust or inequitable acts that arise from the conduct of majority shareholders or the Company. This protection is contained…
Family and relationships
The Rights of Unmarried Biological Fathers in Relation to the their Child
“I am a 30-year-old single father of a 7-year-old girl. She was born when my girlfriend and I were in a 5-year relationship. A month ago, she got married to another man. This one day I went to pick up my daughter at her mother’s house, but her mother and th…
Commercial and general litigation
Duties and Liabilities of Directors
The recent Steinhoff debacle has dominated conversation across South Africa over the festive season. In light of this, the duties and liabilities of directors has found renewed interest with Markus Jooste’s actions forming the basis of the debate. This arti…
Employment
Settling Disputes in the Workplace through Alternative Dispute Resolution Mechanisms
Dealing with workplace disputes in a professional, effective and timely manner is important to maintaining a healthy work environment for all. If conflict is effectively managed, negative effects can be minimised, and the business can continue to run at its…
Commercial and general litigation
The Risk of Verbal Agreements
A very common misconception exists that a contract must be written and signed by all those that are a party thereto in order to have legal consequence and effect. The stark reality, however, is that South African law only explicitly requires two types of ag…
Commercial and general litigation
Suiwer Ekonomiese Verlies
Suiwer ekonomiese verlies omvat vermoënsverlies wat nie die gevolg van saakbeskadiging of persoonlikheidskrenking is nie. Met ander woorde, bo en behalwe die direkte skade gely, kan ‘n eiser ook die skade wat indirek gely is as gevolg van die direkte skade,…
Property and conveyancing
Die Voetstoots Klousule
Die beginsel van “voetstoots” word gevind in die Suid-Afrikaanse gemenereg. Die woord “voetstoots” is afkomstig van Nederlands en beteken letterlik om iets te verkoop met die stoot van ‘n voet. Meeste koopkontrake, veral die koopkontrakte van onroerende eie…
Technology and privacy
The Protection of Personal Information Act (POPIA) - What You Need to Know
Oscar Wilde famously said: “Private information is practically the source of every large modern fortune.” In today’s age of social networking together with the advent of the global community, private / personal information is becoming an insatiably powerful…
Family and relationships
Consequences of 'Void for Vagueness' Antenuptial Contract
In terms of Section 2 the Matrimonial Property Act of 1984, all marriages entered into after the commencement of this Act, which is out of community of property in terms of an antenuptial contract by which community of property and community of profit and l…
Commercial and general litigation
Naamskending of Laster in die Hedendaagse Samelewing
Naamskending behels die kommunikasie van woorde, verbaal of geskrewe, wat ten doel het om ‘n negatiewe indruk of ‘n vernederende beeld van ‘n individu, besigheid, produk, groep of enige ander entiteit te skep. ‘n Persoon maak homself skuldig aan naamskendin…
Commercial and general litigation
None-Compete Clause in a Sales Contract
It is common practice for purchasers to include, as part of an agreement for the sale of a business, a clause that prevents the seller from operating a similar business within a specified radius or within a specified time frame from the business that was so…
Commercial and general litigation
Forfeiture of Patrimonial Benefits in South Africa
Forfeiture of patrimonial benefits entails a court granting an order of divorce and including an order that one party forfeits the assets which would have been acquired by them as a result of the marriage in community of property or benefits accrued as a re…
Commercial and general litigation
Eviction Proceedings
On 8 June 2017, the Constitutional Court of South Africa handed down a landmark judgment with regards to the rights of illegal occupants in eviction proceedings in Occupiers of Erven 87 and 88 Berea and Christiaan Frederick De Wet and another.1
Commercial and general litigation
Streng Aanspreeklikheid vir Hondaanvalle
Om ‘n hond te hê kan ‘n uiters lonende ervaring wees. Maar met groot geluk, kom groot verantwoordelikheid. Bo en behalwe die kos, oefening en veearts rekeninge van jou viervoetige vriende, het jy ook die verantwoordelikheid om te verseker dat hulle nie skad…
Property and conveyancing
Eviction Proceedings - Where Does the Landlord Stand?
It’s one of the most frustrating situations that any property owner may experience – I let out my premises with the expectation of a steady inflow of rental income, but my tenant turns out to be less than satisfactory in meeting my expectations in this rega…
Commercial and general litigation
The Role of the Doctrine of Legitimate Expectation in Income Tax
South African taxpayers are for the most part unaware of the full extent of rights and remedies available to them when disputing the tax liability that the South African Revenue Service (“SARS”) has determined is due and payable on the income they generate.…
Criminal law
Drunk Driving and The Law on Breathalysing
The re-introduction on 1 August 2016 of the Dräger Alcotest breath alcohol equipment as admissible evidence in Western Cape’s courts has increased perpetrator’s, who have been caught drinking and driving, chance of conviction. The applicable law which the p…