Exclusive use areas in Sectional Title Schemes – The Fundamentals
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By Clifton Smit
2 October 2024
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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 such schemes.
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Parental Liability for School Fees Under Maintenance Orders. Shared Responsibility or Sole Burden?
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By Loreen Coetzee
30 August 2024
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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, considering the significance of education for a child's development and welfare, a large portion of this duty consists of paying school fees1.
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Domestic Violence Amendment Act and the horrific repercussions it holds
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By Erin O’Neale
31 July 2024
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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 and the harm inflicted on children in different households.
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Rights of Homeowners when a Contractor Fails to Perform: Consumer Protection in Service Agreements
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By Elize-Mari Gerber
2 July 2024
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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, either by failing to complete the work on time or delivering substandard results. Understanding the legal rights and the steps to resolve such disputes is vital.
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Domestic Violence in South Africa and recent amendments to the Domestic Violence Act.
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By Alvyra Dantu
19 June 2024
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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 they know or from strangers1.
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You have been served with a Summons, what is your next step?
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By Clifton Smit
17 May 2024
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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, once it has been issued at the applicable Magistrate’s Court, Regional Court or High Court.
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The Exceptional Exception
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By Dané Dooge
28 July 2023
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Our law is not only black and white, but has numerous grey areas to it as well. One of these grey areas being the Exception to an opponent’s statements of fact.
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MLV on Radio Helderberg
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By MLV
30 June 2023
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Listen to the legal professionals from Malan Lourens Viljoen share insight into the legal world.
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Changing your Matrimonial Property Regime
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By Annami den Heyer
30 June 2023
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To change a marital regime post-nuptially, parties must jointly apply to court in terms of Section 21(1) of the Act and in their application, they must comply with a number of requirements.
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Collection of Arrear Levies
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By Clifton Smit
1 May 2023
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Failure to pay levies in a sectional title scheme can result in legal action against homeowners. In this artcle, we explain the legal process of recovering arrear levies.
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Piercing the Corporate Veil: Director Liability
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By Dané Dooge
31 October 2022
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Section 22(1) of the Companies Act requires factual evidence sufficient to proof or show the recklessness or the gross negligence of the director whose intention is to defraud any person or entity or who has any fraudulent purpose in mind.
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Foster Care
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By Annami den Heyer
1 September 2022
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What are the Dos and Don`ts to consider when applying to become a foster parent?
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The Retrenchment Process
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By Charl Otto
1 September 2022
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The retrenchment process can be both stressful and daunting to employers and employees alike
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Contractual Retirement Age
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By Dané Dooge
1 August 2022
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Must a contract stipulate a specific retirement age?
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Unconstitutional Divorce Act
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By Annami den Heyer
1 July 2022
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Antenuptial agreements excluding the accrual system has been deemed as an unconstitutional section of the Divorce Act for couples married before November 1984
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Gentlemen's Agreements
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By Dané Dooge
1 June 2022
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Is a Gentlemen`s Agreement a valid contract in SA? What legal mechanism protect business owners from such transactions?
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Will your reputation harm your contract with a Bank
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By Dané Dooge
1 May 2022
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Do banks have enough power to unilaterally cancel a contract with a client and, if the decision is based on a client`s reputation, can it be considered fair?
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Maintenance - a Judgement debt
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By Annami den Heyer
1 May 2022
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Maintenance orders are judgment debts due to it fixing the obligations of the judgment debtor until such time as it is discharged or varied upon the establishment of new facts.
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Permanent Life Partners
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By Annami den Heyer
1 April 2022
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Up until now permanent life partners have received little to no legal protection pertaining to maintenance and inheritance.
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Fairness and Contractual Validity
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By Alexander Klose & Dané Dooge
1 March 2022
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Is it possible for a plaintiff to raise unfairness of a contractual term or the enforcement thereof, to escape contractual liability? And if so, what will the courts regard as an unfair term in a contract between parties?
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The Law of Defamation and the Right to Freedom of Speech
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By Charl Otto
1 February 2022
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When a person infringes on the rights of others through your freedom of expression, it can lead to the defamation of another person’s good name and reputation.
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Different Marital Regimes
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By Karla Swart
1 November 2021
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It is an unfortunate reality that sometimes couples tend to overlook the legal aspects of getting married and the potential ramifications of such oversight.
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Suretyship: The Meaning and Implication thereof
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By Herman Janse van Rensburg
1 October 2021
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Nowadays signing as a surety becomes a prerequisite for almost any agreement. It is important to consider the effect of signing a surety.
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Relocating with Minor Children Post Divorce
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By Karla Swart
1 September 2021
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The "best interests of the child" principle runs like a golden thread through the fabric of law relating to children.
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The Role of the Executor
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By Charl Otto
1 September 2021
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For every deceased estate an executor must be appointed. What are the duties of the executor and what are the legal and practical implications?
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Acts of Insolvency
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By Herman Janse van Rensburg
1 August 2021
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Out of the eight Acts of Insolvency, a creditor only needs to prove one to successfully apply for a debtor`s sequestration.
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Substituted Service vs Edictal Citation
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By Karla Swart
1 July 2021
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If you want to institute divorce proceedings and your spouse is either avoiding service, missing or living in a foreign country the normal route for instituting divorce proceedings can not be followed, the law has made provision for service by way of substituted service or edictal citation.
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The Protection of Personal Information Act
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By Charl Otto
1 July 2021
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POPIA is aimed at protecting people’s personal information and regulates all processing of personal information. Your main motivation for complying with the POPIA should be to protect your business and clients from any potential harm relating to a breach or non-compliance from the provisions of the POPIA
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Restraint of trade and the effect thereof
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By Herman Janse van Rensburg
1 June 2021
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Large-scale bribery and corruption leading to the procurement of contracts in finalised in 1999, initiated by Jacob Zuma and his former financial adviser Schabir Shaik. 1998 (2) SA 38 (CC)The purpose of a restraint of trade is to protect confidential information, company interests and trade secrets of the business operations of the employer.
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Unreasonable Postponement in Criminal Trials
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By Mieke Relihan
1 June 2021
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Every person has the right to a fair trial, which includes the right to have their trial begin and conclude without unreasonable delay.
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Dronkbestuur
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By Mieke Rehilan
1 May 2021
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The new National Traffic Road Amendment Bill adopts a zero tolerance to driving under the influence. What are your rights should you get arrested?
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Unfair dismissals in the Workplace
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By Charl Otto
1 May 2021
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In South African law there are three main instances in which an employer can fairly dismiss an employee and the onus to prove that the dismissal was for a fair reason will always lie with the employer.
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Till Death Us Do Part
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By Karla Swart
1 May 2021
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If your marriage relationship has irretrievably broken down, and there is no reasonable prospect of the restoration of a normal marriage relationship, a divorce might be your only option.
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Consumer Protection Act - Cancelling Bookings
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By Herman Janse van Rensburg
1 April 2021
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When considering the cancellation of an advance booking, reservation or order, the first question that crosses one’s mind is, “Will I receive a refund of my deposit made towards the booking and what are my legal rights?”. Where a consumer made an advance booking, paid a deposit to the supplier and wishes to cancel said booking, the Consumer Protection Act (CPA) applies and dictates what is allowed and what not.
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Cohabitation Relationships
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By Karla Swart
1 December 2020
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n 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
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Partnerships and the Essentialia requirements
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By Herman Janse van Rensburg
12 October 2020
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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.
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Option to Contract
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By Herman Janse van Rensburg
7 August 2020
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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.
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Parental Responsibilities and Rights of South African parents
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By Karla Swart
1 July 2020
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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 parental responsibilities and rights, South Africa followed the common law which conferred parental authority on parents.2
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Succession of a Deceased Estate
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By Ruth Viljoen
15 June 2020
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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 on his legatees or heirs.
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E-Commerce Signatures
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By Herman Janse van Rensburg
1 June 2020
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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 original, that all the parties signing the document agree to the content and that the document is legally binding in law.1
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Business Rescue - All is not lost yet
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By Thys Lourens and Herman Janse van Rensburg
15 May 2020
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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 creditors are lurking around every corner.
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Another COVID-19 Relaxation
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By Herman Janse van Rensburg
1 May 2020
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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.
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Surrogacy in South Africa
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By Karla Swart
1 May 2020
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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.
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Choosing your Attorney as Executor
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By Ruth Viljoen
1 April 2020
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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 you can trust to take responsibility of your estate when you are gone.
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E-Commerce Legal Recognition "in writing"
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By Herman Janse van Rensburg
1 April 2020
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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.
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Classes of Shares
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By James Gallow
1 December 2019
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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.
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How to Change your Marital Regime
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By Michelle Mentz
1 April 2019
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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. How In our law, it is of extreme importance to enter into an ante-nuptial contract prior to a marriage, failing to do so will automatically render your marriage in community of property.
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Driving under the Influence and the Law
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By James Gallow
27 November 2018
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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.
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Rights of Long Term Lessees under the (Land) Restitution Act
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By Jurgen Potgieter
1 September 2018
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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 suggested to land expropriation and restitution, the practical implementation of this approach will keep citizens on their toes for the foreseeable future.
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How can Employers guard against Claims for Injury on Duty
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By Michelle Mentz
13 July 2018
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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, regardless of the type of work environment.
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Antenuptial Contracts
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By James Gallow
1 May 2018
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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 married in community of property and share one joint estate including all the assets and liabilities of each party.
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Cohabitation Relationships and it's Consequences
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By Hanri Botes
1 April 2018
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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.
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Protection of Minority Shareholders
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By Jurgen Potgieter
28 March 2018
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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.
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The Rights of Unmarried Biological Fathers in Relation to the their Child
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By Hanri Botes
1 March 2018
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A biological father has full parental rights in respect of his child in terms of section 20 of the Children’s Act 38 of 2005 (the Act) and may not be refused access to his child, provided that he fulfill one of the following requirements that the Act prescribes.
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Duties and Liabilities of Directors
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By James Gallow
28 February 2018
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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.
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Settling Disputes in the Workplace through Alternative Dispute Resolution Mechanisms
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By Michelle Mentz
1 February 2018
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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 best.
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The Risk of Verbal Agreements
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By Jurgen Potgieter
4 October 2017
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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 agreements to be in writing, being an agreement for the sale of immovable property and a suretyship.
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Suiwer Ekonomiese Verlies
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By Lizaan van der Vyver
1 September 2017
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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, eis.
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Die Voetstoots Klousule
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By Lizaan van der Vyver
1 August 2017
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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 eiendom, bevat deesdae voetstoots klousules wat die verkoper vrywaar van aanspreeklikheid vir enige patente of latente defekte.
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The Protection of Personal Information Act (POPIA) - What You Need to Know
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By Jurgen Potgieter
1 July 2017
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The benefits to the holders of such personal information is evident, but so too is the dangers for the subjects whose information is held.
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Consequences of 'Void for Vagueness' Antenuptial Contract
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By Myrna Heunis
1 July 2017
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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 loss is excluded, is automatically subject to the accrual system.
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Naamskending of Laster in die Hedendaagse Samelewing
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By Lizaan van der Vyver
1 June 2017
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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.
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None-Compete Clause in a Sales Contract
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By Jurgen Potgieter
1 May 2017
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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 sold.
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Forfeiture of Patrimonial Benefits in South Africa
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By Myrna Heunis
1 April 2017
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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 result of an ante-nuptial claim.
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Eviction Proceedings
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By Clara Brand
1 April 2017
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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.
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Streng Aanspreeklikheid vir Hondaanvalle
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By Lizaan van der Vyver
1 March 2017
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Om ‘n hond te hê kan ‘n uiters lonende ervaring wees. Maar met groot geluk, kom groot verantwoordelikheid.
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Eviction Proceedings - Where Does the Landlord Stand?
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By Clara Brand
1 March 2017
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It’s one of the most frustrating situations that any property owner may experience
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The Role of the Doctrine of Legitimate Expectation in Income Tax
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By Jurgen Potgieter
1 February 2017
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The doctrine of legitimate expectation proposes another remedy for taxpayers and can serve as a powerful weapon to force SARS to comply with the promises they make to taxpayers regarding the extent of their liability.
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Drunk Driving and The Law on Breathalysing
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By Myrna Heunis
1 January 2017
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In order to be found guilty of the above, the State will be challenged in proving, beyond reasonable doubt, not only that the accused contravened Section 65(5) but furthermore, that there is compliance with all the relevant regulations, preconditions and further requirements relating to the Drager Alcotest.
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