How long does it take to wind up an estate?  

On average 9 – 18 months, baring disputes for example, relating to the validity of a Will, litigation amongst beneficiaries, legal proceedings initiated by Creditors.

How much does it cost?  

The fee is regulated by tariff which is: -3.5% on gross assets, and -6% on income collect.

What is an executor?  

A person appointed by the Master (the office of which oversees, inter alia, the administration of deceased estates, to administer the assets of the deceased, and to make a distribution in terms of the Will, or in terms of the laws of intestacy.

Can a lay person, for example, the surviving spouse /descendant attend to the administration process of a deceased estate?  The Master’s Office will require such person to be assisted by a professional, for example, an accountant, attorney, trust company.

What taxes are payable on death?

All taxes being:     - Personal Income Tax;     - CGT (death is a deemed disposal where the deceased is deemed to dispose of his assets to his estate at the value as a date of death);     - Estate Duty – This is a Death Tax.   Important deductions are:     » The basic deduction for R3.5million;     » Bequests to a surviving spouse.

What is the difference between testate and intestate?

TESTATE means that you die with a Will.  Your assets will be awarded in terms of your Will. INTESTATE means that you die without a Will.  Your assets will be awarded in terms of the Intestate Succession Act which may not be in accordance with your intentions.

What is the difference between a will and a living will?

-A Will stipulates the Testator’s wishes upon his death. -A Living Will records a person’s wishes when he is still alive but when he is not competent to make decisions such as being kept alive artificially.

International estates and offshore assets?

It is advisable to have a Will for each Foreign Country / Jurisdiction.  Such Will should clearly state to which foreign assets it relates to, and that same does not contradict the SA Will or deal with the same assets.

What is the position of insurance policies? If the policy nominates a beneficiary, then upon the death of the life assured, the proceeds will be paid directly to the beneficiary and will be brought into account for Estate Duty purposes.  If no beneficiary is nominated, the proceeds will be paid to the estate of the life assured.

What is a testamentary trust?

a Trust established in terms of the Testator’s Last Will & Testament.  The primary purpose inter alia is to administer an inheritance awarded to a minor beneficiary and thus circumventing payment of such inheritance into the Guardian Fund.

What different kinds of companies do you get? 

The Companies Act 71 of 2008 provides for two types of companies, being profit companies and non-profit companies. 

A profit company is a company incorporated for the purpose of financial gain for its shareholders. There are 4 types of profit companies being – 

1. state-owned company;  2. private company;  3. personal liability company; and  4. public company. 

A non-profit company is a company which is incorporated for a public benefit or an object relating to one or more cultural or social activities or communal or group interests. Furthermore, the income and property of a non-profit company are not distributable to its incorporators, members, directors, officers or similar persons and must instead be distributed in furtherance of the company’s stated objective. 

How can I acquire shares in a company? 

A person/entity looking to acquire shares in a company can either purchase shares from an existing shareholder or subscribe for shares in the company. 

In the former instance an agreement of sale would be concluded between the existing holder of the shares and the person/entity looking to acquire same. This would result in the existing shareholder’s shares being transferred to the purchaser thereof. 

In the latter instance an agreement is concluded between the company itself and the person/entity looking to acquire same in terms of which the person/entity subscribes for shares in the company. This results in the company issuing more shares to the person/entity subscribing for same thereby diluting any existing shareholders. 

What is the difference between a sale of shares agreement and a sale of business agreement? 

A sale of shares agreement regulates the sale of shares from an existing holder of shares to a purchaser thereof. Where the purchaser of the shares acquires 100% of the shares in the company, the purchaser becomes the sole shareholder of the company and controls the company and all of its assets, liabilities and interests. 

A sale of business agreement regulates the sale of a business (comprising various assets including fixed assets, contracts, inventory and goodwill and in certain instances liabilities of the business) from the owner thereof to a purchaser. In this scenario, the parties will negotiate and agree as to what specific assets and liabilities the purchaser will acquire. 

By way of an example, if ABC Proprietary Limited has various bakery stores across South Africa, where a purchaser acquires all the shares in ABC Proprietary Limited, the purchaser will become the sole shareholder of ABC Proprietary Limited and will control all of the assets and liabilities of ABC Proprietary Limited including the various bakery stores across the country. 

If however, a purchaser were to acquire the business of ABC Proprietary Limited, this may involve only acquiring certain assets and liabilities from certain of the bakery stores. The assets and liabilities would be transferred to the purchaser and the assets and liabilities not acquired would remain housed in ABC Proprietary Limited. There is no change in ownership of ABC Proprietary Limited only a change in assets and liabilities housed in ABC Proprietary Limited. 

Is my company a regulated company? 

Public companies and state-owned companies are regulated companies for the purposes of the Companies Act 71 of 2008. 

Furthermore, a private company will be regarded as a regulated company where the company’s memorandum of incorporation provides for same or where more than 10% of a private company’s issued securities have been transferred within the previous 24 months (other than transfers between related or inter-related persons). 

A regulated company is subject to Part B and C of the Companies Act 71 of 2008 as well as the Takeover Regulations and will need to comply with these provisions when concluding an “affected transaction”. An affected transaction includes any transaction – 

1. amounting to a disposal of all or the greater part of the regulated company’s assets or undertaking; 
2. an amalgamation or merger involving at least one regulated company; 
3. a scheme of arrangement between a regulated company and its shareholders; 
4. the acquisition of, or announced intention to acquire, a beneficial interest in any voting securities of a regulated company amounting to 5, 10 or 15% or any further whole multiple of 5%;  
5. the announced intention to acquire a beneficial interest in the remaining voting securities of a regulated company, not already held by a person or persons acting in concert;
6. a mandatory offer; or
7. a compulsory acquisition.

How many directors are companies required to have on their board?

Subject to the relevant company’s memorandum of incorporation and any additional requirements which may be prescribed by the Companies Act 71 of 2008, for – 

1. private and personal liability companies, a minimum of one director is prescribed by the Companies Act 71 of 2008. 
2. non-profit and public companies, a minimum of 3 directors are prescribed by the Companies Act 71 of 2008. 

Does my transaction fall within the ambit of the National Credit Act 34 of 2005 (“the NCA”)? 

The provisions of the NCA are applicable to all credit agreements between parties dealing at arm’s length, which are made within or have an effect within the Republic of South Africa.

There are however exceptions when the NCA will not be applicable to such credit agreements, including transactions where the consumer (borrower) is – 

a juristic person whose asset value or turnover alone (or together with the combined asset value or annual turnover of all related juristic persons), at the time the credit agreement is made, equals or exceeds R1 000 000;

the state or an organ of state; 

a juristic person with an asset value or turnover less than R1 000 000, but the credit agreement constitutes a “large agreement”.  A credit agreement is a “large agreement” if it is a “mortgage agreement” or any other credit transaction (except for a pawn transaction or a credit guarantee) where the principal debt under that transaction is R250 000 or above.

Should any person/entity advance a loan or conclude any credit agreement which falls within the ambit of the NCA without first being registered as a credit provider, the loan/credit agreement will be unlawful and may be declared void. 

What agreements require signature with wet ink and cannot be concluded electronically?

1. an agreement for alienation of immovable property;
2. an agreement for the long­term lease of immovable property;
3. a will or codicil;
4. a bill of exchange.

Furthermore, where any law requires that a document/agreement be signed and such law does not specify the specific type of signature required, a normal electronic signature will not suffice and the parties will need to sign in wet ink or use an advanced electronic signature (which is an electronic signature that has been accredited by the South African Accreditation Authority). 

Who are the Competition Authorities?  

The Competition Commission, the Competition Tribunal and the Competition Appeal Court.   How much is the filing fee for a merger

The filing fee is an administrative fee that is payable to the Commission when filing a merger.  The filing fee is R165 000.00 for an intermediate merger and R550 000 for  a large merger.

Are all merger notifiable to the Competition Authorities?

No, in terms of the Competition Act, a transaction is required to be notified to the Commission if: (i) there is an acquisition of control over whole or part of another entity; (ii) the transaction meets the financial thresholds of assets and turnover values set out below; and (iii) it is an economic activity within, or having an effect within South Africa.  All three elements must be present in order for a transaction to be notifiable.    The Competition Act categorises transactions into 3 categories of mergers which are determined by the merging entities total South African turnover and/or assets values.    A small merger occurs where the combined assets or annual turnover of the acquiring firm and the target firm are below R600 million or the target firm's assets or annual turnover are below R100 million.  There is no obligation on the merging parties to notify the Competition Authorities of these transactions.  However, the Commission may call for a notification of small mergers within 6 months of implementation of the transaction if it is of the opinion that the merger may substantially prevent or lessen competition or if it raises public interest concerns;   An intermediate merger occurs where the combined assets or annual turnover of the acquiring firm and the target firm equal or exceed R600 million and the target firm's assets or annual turnover equal or exceed R100 million.  Parties to a transaction that meets these thresholds may not implement the transaction without the prior approval of the Commission.  The Commission is responsible for investigating and approving intermediate mergers.    A large merger occurs where the combined assets or annual turnover of the acquiring firm and the target firm equal or exceed R6,6 billion and the target firm's assets or annual turnover equal or exceed R190 million.  Parties to a transaction that meets these thresholds may not implement the transaction without the prior approval of the Tribunal.  The Commission is responsible for investigating the transaction, however unlike an intermediate merger, the decision to approve or prohibit the transaction lies with the Tribunal.  Parties to a large merger will still be required to file the transaction with the Commission.   The filing fee for an intermediate merger is R560 000.00. 

What is control?

In terms of our of 12 of the Act, a merger occurs when "…one or more firms directly or indirectly acquire or establish direct or indirect control over the whole or part of the business of another firm".  It is important to point out that the concept of control is not unitary in nature.  In other words, our competition law does not recognize a single form of control, instead it recognizes different forms of control.   More specifically, section 12(1)(a) recognizes that control can be directly or indirectly acquired, while section 12(2) recognizes that control can be solely or jointly acquired.   The significance of the different forms of control in merger control is because a move from indirect control to direct control, or vice versa, will amount to a change or acquisition of control for purposes of section 12 and may trigger an obligation to notify. 

How long does it take to approve a merger ?

For an intermediate merger the Commission is obligated to approve or prohibit the transaction within 60 business days of filing. For a larger merger, the Commission has an initial period of 40 business days to consider and refer a large merger to the Tribunal.  The Tribunal may, on application by the Commission, extend this period by no more than 15 business days at a time.  Within 10 business days of the referral of a large merger, the Tribunal must schedule a hearing.  This period may be extended on application to the Tribunal.  Within 10 business days of the hearing, the Tribunal must approve or prohibit the transaction.

WILL THE COMPETITION AUTHORITIES PROHIBIT A MERGER BECAUSE THERE IS NO BBE OWNERSHIP?

When evaluating a merger the Competition Commission and/or the Competition Tribunal (“Tribunal”) (collectively referred to as the competition authorities), examine several aspects to determine whether a merger will significantly diminish or hinder competition within a relevant market.  In addition to this, the competition authorities are obligated to take into account wider public interest elements, including the merger's effects on employment, small businesses, and the ability of historically disadvantaged individuals or firms to engage in the market.

The Competition Amendment Act which amended the Competition Act 89 of 1998 (“Act”) in 2018 assigned the competition authorities with a transformation mandate in addition to its role as a competition/anti-trust regulator.  The Competition Amendment Act introduced new public interest grounds such as 12A(3)(e) “the promotion of a greater spread of ownership, in particular to increase the levels of ownership by historically disadvantaged persons and workers in firms in the market”.  As a result of the amendments and the Tribunal’s decisions in other cases, the burning question amongst many businessmen and investors has been whether public interest considerations outweigh the competition considerations.  In terms of section 12(1A) of the Act even where a merger does not raise competition concerns, competition authorities are still obliged to determine whether or not the merger can be justified on substantial public interest grounds. 

The Tribunal has provided some much needed guidance.  In Epiroc Holdings[ Epiroc Holdings  South Africa (Pty) Ltd And K2022596519 (South Africa) (Pty) Ltd and Polkadots Properties 117 (Pty) Ltd LM148Nov22] the Tribunal noted that when conducting a public interest analysis under section 12A(3) of the Act, holistic approach is required.  Meaning that the various public interest factors mentioned in section 12A(3) must be individually evaluated, and subsequently, if needed, balanced against each other to determine the overall impact on the public interest resulting from the merger."

The Tribunal also noted that whilst this previously expressed approach predates the amendments to section 12A the Tribunal does not believe that those amendments impact upon the holistic approach to be followed in the assessment.  Therefore, even if, on a consideration of all the evidence, a merger would have a substantial negative effect insofar as section 12A(3)(e) is concerned, that effect might be mitigated or outweighed by positive effects in relation to one or more of the other factors listed in section 12A(3).  In the Epiroc Holdings case, the Tribunal found that the significant reduction in HDP ownership that resulted from the proposed merger was balanced against the establishment of an ESOP to promote worker ownership as well as against the positive public interest effects brought about by the merger in relation to the other factors listed in section 12A(3). 

As highlighted in the Epiroc Holdings case, it is important to remember that the increase of HDP ownership is not the only public interest consideration.  The assessment of public interest considerations is case-specific and will depend on the nature of the merger and its potential effects on the economy and society at large.  If the competition authorities find that a merger might harm any of the public interest factors significantly, they may impose conditions on the merger or even prohibit it.  While competition considerations are vital in analysing a merger, public interest considerations play an essential role in the approval or rejection of a merger in South Africa. The competition authorities strive to strike a balance between promoting competition and safeguarding broader public interest objectives. 

In response to the burning question, no competition authorities are unlikely to prohibit a merger SOLELY because there will be a decrease in HDP ownership but it is important note that the authorities will look at the overall impact on the public interest resulting from the merger.

Termination of Employment: What are the 3 main grounds for dismissal?

(1) Misconduct; (2) Incapacity (either due to ill health or poor performance); and (3) the employer’s operational requirements (retrenchment).

When can an employee be dismissed for misconduct?

Dismissals for misconduct will only be fair if:

• the employee has broken a workplace rule;
• the rule was reasonable and necessary;
• the employee knew of or could have reasonably been aware of the rule;
• the employer has historically consistently applied the rule;
• dismissal is the only appropriate sanction given the nature of the misconduct.

What must an employer consider before deciding to dismiss an employee for misconduct?

• the employee’s personal circumstances (e.g. length of service, previous disciplinary record and personal circumstances);
• the nature of the job;
• the circumstances surrounding the misconduct.

When can an employee be dismissed for incapacity on the grounds of poor performance?

When determining the fairness of a dismissal for incapacity on the grounds of poor performance, the following must be considered:

• whether the employee failed to work to a required standard;
• whether the employee was aware of the standard;
• whether the employee was given a fair opportunity to meet the standard;.
• whether the dismissal is an appropriate sanction for the employee’s failure to meet the standard;
• whether the incapacity is serious and what the likelihood is of an improvement
• whether the employee can be accommodated in an alternative position should one be available.

A dismissal for poor performance will only be fair if the employer has:

• given the employee proper training, instruction, evaluation, guidance and advice;
• assessed the employees performance over a reasonable period of time;
• investigated the reasons for continued poor performance;
• investigated ways of addressing the poor performance without resorting to dismissal;
• given the employee an opportunity to be heard before dismissal;
• considered employing the employee in an alternative position in the event that one is available.

When is a dismissal for incapacity on the grounds of ill health fair?

Dismissals due to ill health or disability will only be fair if the employer has:

• investigated the degree and duration of the injury or incapacity;
• considered alternatives to dismissal;
• considered alternative work for the employee;
• tried to adapt the work so as to accommodate the employee
• given the employee the chance to be heard prior to dismissal.

What constitutes a dismissal based on an employer’s operational requirements?

An employer is permitted to terminate the services of its employees for operational reasons, based on its economic, technological, structural or similar needs.

Whenever an employer considers retrenchment, the employer must: consult with the affected parties; issue a termination employment written notice in accordance with section 189(3) of the Labour Relations Act; invite all potentially affected parties to consult on the contents of the Section 189(3) notice; and make all the relevant information available to the potentially affected employees.

The consultations held between the employer and the potentially affected employees are a joint consensus seeking process. To the extent that the parties are unable to reach an agreement, disputes regarding retrenchment can be referred to the CCMA for conciliation and thereafter the Labour Court. If the retrenchment involves a single employee, the employee can challenge the fairness of the retrenchment at the CCMA rather than the Labour Court. 

What steps can be taken if an employee has been unfairly dismissed?

If an employee is of the view that their dismissal was unfair (the dismissal was done contrary to the Labour Relations Act, or there was no good reason for the dismissal), the employee may challenge the dismissal by referring a dispute to the CCMA or Bargaining Council having the requisite jurisdiction to hear the matter. 

Should a commissioner in the CCMA/Bargaining Council find that the employee’s dismissal was unfair, the Commissioner may award reinstatement, re-employment, or compensation limited to 12 months of the employee’s remuneration. 

What is the difference between reinstatement and re-employment?

Reinstatement means the employee shall be placed back in his/her position as if he/she had never been dismissed. There is no break in service.

Re-employment means the employee shall be placed back in his/her position as if the employee is a new employee. There shall be a break in service.

1. Is a parent still responsible for paying maintenance if their child reaches the age of majority?

A respective parent’s duty to support a child does not necessarily end when he/she attains the age of majority, but ceases when the child becomes self-supporting and is no longer dependant. The fact that a child is able to earn an income does not necessarily mean that he or she is completely self-supporting and does not preclude the parent’s obligation to contribute to the maintenance of such child.

2. Can you increase/decrease the amount of maintenance claimable after a maintenance order has been granted?

In terms of section 8 of the Divorce Act, 70 of 1979 a maintenance order may be rescinded or varied at any time by a maintenance court, should the court find that there is sufficient reason to do so. The amount of maintenance claimable can be varied either because it has become insufficient or because you can no longer afford to pay that amount of maintenance. The legal test applied in such instances is whether there has been a ‘change in circumstances’.  

3. Do both spouses have to consent to a divorce?

Our divorce law is based on a ‘no-fault’ system. Essentially this  means that both spouses do not have to consent to the divorce. A court may grant a final order of divorce even if only one of the spouses believes that the marriage has irretrievably broken down to the extent that it cannot be reconciled.  

4. Can same-sex couples adopt a child/ children?

In Du Toit & another v Minister for Welfare & Population Development & others [2002] JOL 10181 (CC), the Constitutional Court held that same-sex partners in permanent relationships are included in the legislation regarding joint adoption and therefore can adopt a child/children.

5. Do unmarried fathers have parental rights and responsibilities?

Yes, in terms of section 21 of the Children’s Act 38 of 2005 the biological father of the child acquires full parental rights and responsibilities.

6. Can I claim children/spousal maintenance from my spouse pending the finalisation of our divorce?

Yes, in terms of Rule 43 of the Uniform Rules of Court, it is possible for a spouse to apply for an interim order directing the other spouse to pay children/spousal maintenance pending the outcome of the divorce.  

Can a grandparent be obligated to contribute towards the maintenance of a grandchild?

In summary, when the parents of a child are not able to financially support their child, the duty of support falls on the grandparents ( paternal and maternal grandparents)

1. What is a liquidation application?

A liquidation application is a legal proceeding voluntarily brought by a company or close corporation (“the entity”), alternatively, brought by its creditors to (i) place the estate of the entity in the hands of the Master of the High Court and (ii) appoint a liquidator to take control of the entity’s assets and realise them in a manner that will ensure an orderly and equitable distribution of the sale proceeds for the benefit of the general body of the entity’s creditors.  The basis for the application is generally that the entity is unable to pay its debts as and when they become due and payable. 

2. What is the difference between factual insolvency and commercial insolvency?

Factual insolvency occurs when the entity’s liabilities exceed its assets. Commercial insolvency occurs when the entity is unable to pay its debts as and when they become due and payable.

3. I wish to bring or defend a liquidation application, where do I start reading?

3.1 The liquidation of insolvent companies is governed by Chapter XIV of the Companies Act 61 of 1973 ("the old Companies Act”) as preserved by s9 of schedule 5 of the Companies Act 71 of 2008 ("the new Companies Act”).

3.2 The liquidation of solvent companies is governed by s79 to s83 of the new Companies Act.

3.3 The sequestration of natural persons is governed by the Insolvency Act 24 of 1936 ("the Insolvency Act”).

4. Who appoints a liquidator?

The Master of the High Court appoints a liquidator. 

Business Rescue

5. What is business rescue?

Business rescue is a legal process governed by chapter 6 of the new Companies Act in terms of which, among other things, (i) a financially distressed company is placed under the temporary supervision of a business rescue practitioner ("BRP”) and (ii) legal proceedings against the company are temporarily stayed or suspended in order to afford the company the crucial breathing space or a period of respite to enable the company to restructure its affairs in a manner that will enable it to trade on a solvent basis again.

6. How are business rescue proceedings initiated?

There are two ways in which business rescue proceedings may be initiated:-

6.1 voluntarily – in terms of s129 of the new Companies Act, the board of directors of  the company may, by simple majority, resolve that the company commence business rescue proceedings and be placed under the supervision of a BRP if the board has reasonable grounds to believe that (i) the company is financially distressed and (ii) there appears to be a reasonable prospect of rescuing the company;

6.2 compulsorily – an affected person (i.e. employee, its representatives or trade union, shareholder or creditor) of the company may apply to court to place the company in business rescue under the supervision of a BRP in terms of s131 of the new Companies Acton the grounds that:-

6.2.1 the company is financially distressed as defined in the new Companies Act;

6.2.2 the company has failed to pay any debt in terms of an obligation under a public regulation, or contract, or in relation to employment related matters; or

6.2.3 it would be just and equitable to place the company in business rescue; and

6.2.4 there is a reasonable prospect of rescuing the company.

7. Who is an “affected person”?

S128(a) of the new Companies Act defines an “affected person” as a shareholder, creditor, employee (or their representative) or a registered trade union (if any), representing the employees of the company.

8. What is an “independent creditor”?

In terms of s128(1)(g) of the new Companies Act, an “independent creditor” is a person who is a creditor of the company, including an employee of the company who is a creditor in terms of s144(2) and is not related to the company, a director or the BRP of the company.

9. What is a business rescue practitioner and who appoints him/her?

A business rescue practitioner is a person appointed by the board of directors of the company, alternatively, the court to supervise and oversee the company during business rescue and to prepare a business rescue plan to rescue the company by achieving either of the goals set out in s128(1)(b)(iii) of the new Companies Act.

Liquidations and Business Rescues 

10. When would business rescue be appropriate or advisable as opposed to liquidation and vice versa?

Business rescue is appropriate where the company is in financial distress and there is reasonable prospect of rescuing it.  Whereas, a liquidation would be appropriate where not only is there no reasonable prospect of rescuing the company but it is also unable to pay its debts as and when they become due.

11. What is the role of the board of directors during business rescue proceedings?

11.1 In terms of s137 of the new Companies Act, during business rescue proceedings, each director of the company:-

11.1.1 must continue to exercise the functions of a director, subject to the authority of the BRP;

11.1.2 has a duty to the company to exercise any management function within the company in accordance with the express instructions or direction of the BRP, or to the extent that it is reasonable to do so;

11.1.3 remains bound by the requirements of s75 concerning personal financial interests of the director or a related person; and

11.1.4 must attend to the requests of the BRP at all times and provide the BRP with any information about the company’s affairs as may reasonably be required.

11.2 In addition to any other powers and duties set out in chapter 6 of the new Companies Act, the BRP (i) has full management control of the company in substitution for its board and pre-existing management and (ii) may delegate any power or function of the BRP to a person who was part of the board or pre-existing management of the company (s140 of the new Companies Act).   11.3 In a liquidation:-

11.3.1 the liquidator has full management control of the company in substitution for its board and pre-existing management;

11.3.2 the board is duty bound to co-operate with and provide the liquidator with any information about the company’s business, assets, trade, dealing and affairs.

12. Does a liquidation proceeding or business rescue proceeding mean that the company will no longer exist?

12.1 Business rescue and liquidation proceedings do not end the juristic life of a company.  What simply changes is the status of the company.

12.2 The company ceases to exist once it has been dissolved and deregistered, with the result that its juristic life ends with effect from date of deregistration.

Litigation

13. Which court should you approach for a monetary claim against another party?

13.1 For a monetary claim of an amount of R20 000.00 or less, a natural person creditor may approach the Small Claims Court.  A juristic person creditor is precluded from instituting legal proceedings in the Small Claims Court;

13.2 for a monetary claim of an amount up to R200 000.00, a party may approach the District Magistrates Court;

13.3 for a monetary claim of an amount greater than R200 000.00 but up to and including R400 000.00, a party may approach the Regional Magistrates Court;

13.4 for monetary claims exceeding R400 000.00, the creditor must approach the High Court.  The High Court does not have jurisdictional limit based on the monetary value of the claim.

14. What is the difference between application and action proceedings?

14.1 Where there is a material dispute of fact which cannot be resolved on paper (i.e. by way of affidavits), one is required to institute legal proceedings by way of an action.  That is initiated by way of a summons.  The material dispute of fact is resolved by way of oral evidence and cross-examination at trial.

14.2 Where, however, there is no material dispute of fact but the dispute in question is one of law, then one may institute legal proceedings by way of an application to court.  That is initiated by way of a notice of motion supported by a founding affidavit.  In this case, oral evidence is generally precluded.  The parties’ respective affidavits and annexures thereto serve as evidence.

15. What is a Contingency Fee Agreement?

A contingency fee agreement is an agreement between a legal practitioner and a client in terms of which, amongst other things, the legal practitioner agrees not to charge the client a fee for professional services rendered unless the client is successful in the prosecution and recovery of the claim.  A contingency fee agreement is subject to the provisions of the Contingency Fees Act No 66 of 1997 which stipulates inter alia  that the legal practitioner’s fees may not be higher than 25% of the total amount awarded to the client.

16. What is an exception?

An exception is a preliminary objection to a party’s pleading (i.e. particulars of claim or plea to the particulars of claim) that it is defective on the basis that it is vague and embarrassing and/or lacks allegations which are necessary to sustain an action or a defence. 

Before you start the process, can you furnish me with your pro- forma account?

Yes, with pleasure. Note the fees (exc. VAT) are charged in accordance with the Recommended Fee Guidelines issue by the Law Society

Do I pay for bond costs as well?

Yes, you typically pay Transfer fees, Bond fees and Transfer Duty or VAT on the purchase price

How long will the process take?

This does depend on the terms of the sale agreement. Provided rates clearance figures are obtained timeously you can expect registration of transfer within 30 days after guarantees are furnished.

When do I know the property is mine?

It is yours when the property is registered in your name and the transfer attorney will advise you in writing on date of transfer.

How do I find out if there are plans?

You would need the authority of the owner to apply for same from the relevant Local Authority.

When do I get the keys?

By arrangement with the Agent and in terms of the Agreement of Sale

Once the documents are signed and costs paid, does it mean I own the property?

No, you only own the property on the day it is registered in your name.

What is the cause of delays at Local Authority in issuing figures/certificates? Is there a way to circumvent or expedite Local Authority’s queries?

Service delivery at the Local Authority is a continuous issue – you can at your cost employ the services of a rates consultant who may assist with this issue.

Why, as the conveyancing attorneys, don’t we attend to the closing of existing utility accounts and opening of new accounts? This question is often asked with the expectation that there would be no fee charged

We are mandated to effect transfer of the property into the purchasers’ name and to account to the seller for the purchase price. The fee we charge does not cover the opening and closing of utility accounts.

Can we have a discount on the fees?

This would need to be discussed with one of the Directors of the firm.

Will we receive a rates refund from the Local Authority after registration and how long will that take?

Yes, you should receive a refund of any rates overpaid – how long depends on the efficiency of the Local Authority.

When can we expect to receive our title deed?

Within 2-4 weeks after transfer is registered. Note that if you have registered a bond over the property, the title deeds are sent to the Bank for safekeeping.

How long is an electrical certificate of compliance valid for?

2 years or until the electrical installation is altered

Why is there a bond cancellation fee payable?

As a mortgagor you will have agreed to pay the Bank’s Attorney’s fees to cancel the Bond

What happens if you miss court on bail?

From a high level perspective, should an accused individual released on bail miss a court appearance, without a valid reason will result in serious consequences. 

These may include inter alia bail being revoked, a warrant of arrest being issued, forfeiture of bail money, and additional charges for contempt of court or absconding from justice.

What crimes are eligible for bail?

In South Africa an accused person remains to be presumed not guilty until the court finds such person guilty.  In our law no one may be detained without trial. Thus an accused person may apply for bail for any offence.  That being said it must be taken into account that depending on the Schedule of Offence the accused is facing, dictates the hurdles one may need to overcome to achieve bail. 

What is the punishment for drinking and driving?

This depends on a host of circumstances, but may range from a fine, suspension of one’s driver's licence, or both, and even a possibility of a prison sentence.

Does a criminal record automatically come off your name after 10 years?

No. One is required to apply for the expungement of a criminal record after 10 years.

What are my rights when getting arrested?

One’s rights are outlined in Section 35 of the Constitution.  These include but are not limited to: The right to remain silent; The right not to be compelled to make any submission or adduce evidence which can be used as evidence against that person; The right to be brought before a court of law within 48 hours of being arrested; The right to seek legal counsel; The right to be held in conditions consistent with the right of human dignity; and The right to a fair public trial.