The Master Law

12 Questions to Ask Before You Sign That Deed of Sale

“Knowledge is power” (old proverb)

Whether you are buying or selling property, remember that it is too late to ask questions after you sign the Deed of Sale (often called a “Sale Agreement” or “Offer to Purchase”).

“Knowledge is power” rings particularly true when it comes to any form of process with significant legal consequences, so here are some of the important questions you should ask upfront, before you commit to anything –

  1. What do all the terms and conditions (particularly the legal-speak bits) in the Deed of Sale mean in practice?
  2. Are my rights adequately protected and my risks minimised by the terms and conditions?
  3. What costs will I have to pay, and when?
  4. Is there anything in the Title Deed or local municipal laws and zoning restrictions that may impact me (as a buyer)? 
  5. Do I (as buyer) have a copy of the plans, and have all extensions and alterations been authorised by the local authority? 
  6. What defects have been disclosed in the Mandatory Disclosure Form, is a home inspection report worthwhile (and permitted by the deed of sale), what is the legal position around voetstoots clauses and patent and latent defects, and does the Consumer Protection Act apply to this sale?
  7. As a buyer, have I checked for practical issues like local fibre availability, crime levels, security, school feeder zones, fixtures and fittings to remain, work-from-home practicality, buy-to-let possibilities etc?
  8. Are there tenants (or other occupants) in the property, and if so what is their status and what does the deed of sale say about when they will vacate?
  9. When does the buyer take possession and occupation? (Careful here, possession and occupation are two different concepts in law)
  10. What arrangements have been made for date of transfer and payment of occupational interest, rates and taxes, levies, municipal service charges and the like? 
  11. In a residential complex: As a buyer, what Rules and Regulations will I be bound to, is there a danger of a special levy being levied, and do the latest financial statements for the Body Corporate or Homeowners Association show a healthy financial situation? 
  12. Have I as seller appointed my choice of conveyancer (transferring attorney)?

A final but vital thought here – whether you are buying or selling property, a lot of your money will be at stake here. Get professional advice before committing yourself to anything!

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

© LawDotNews

Directors – When Are They Personally Liable?

“… for the benefit of immunity from liability for its debts, those running the corporation may not use its formal identity to incur obligations recklessly, grossly negligently or fraudulently. If they do, they risk being made personally liable.” (Quoted in the judgment below)

Particularly in hard times, it is not at all uncommon to find yourself unable to recover a debt from a company in financial straits whilst at the same time you know that its directors hold assets in their own names. Can you attack them personally?

The answer is founded in the centuries-old concept of companies as separate legal entities or “juristic persons”. They trade in their own names and have their own assets and liabilities, so as a rule directors will not be personally liable for a company’s debts unless either –

  1. They signed personal suretyship for them, or
  2. They fall foul of one of our law’s provisions entitling a court to declare them personally liable.

So, in the absence of personal suretyships, when in practice can you recover a company debt from its director/s? And when are you as director at risk of being sued personally?

Let’s look at the facts and outcome of a recent High Court case for some insights –

The fraudulent car auction, the disappearing company and the director’s defence
  • The buyer of a car on auction subsequently discovered that it was a 2010 model despite being sold to her as a 2012 model.
  • She cancelled the sale, returned the car to the auction company that had sold it to her, and, when her demand for a refund of the purchase price was refused, took a default judgment against the company.  
  • What followed was a saga of unsuccessful attempts to recover her money from the company, its address having changed and the director claiming to have resigned and sold the company, which he said had ceased trading and was awaiting deregistration.  
  • The buyer eventually sued the director personally, asking the Court to “pierce the corporate veil”. The director’s defence boiled down to saying that he had not used the company “as a front”.
Piercing the corporate veil

“Piercing the corporate veil” in this context is, simply put, a court holding directors personally liable for a company’s debts by declaring that the company is to be “deemed not to be a juristic person” in respect of particular debt/s.

On what grounds will a court make such a declaration? Per the High Court in this matter:

  • Where there is “fraud and the improper use of a company or conduct of the affairs of a company” or  
  • “[W]here its incorporation, use or an act performed by or on its behalf [the Court’s underlining] constitutes an unconscionable abuse of the juristic personality of the company as a separate entity.”  
The director’s misrepresentation and “cavalier disregard” for the company’s interests
  • On the facts, the Court found that the director had misrepresented the details of the motor vehicle to the buyer, that this misrepresentation was material and induced her to purchase the vehicle, and that it “was deliberate such that it amounted to fraud, alternatively dishonesty, further alternatively improper conduct.”  
  • “Additionally, as the director and owner, he acted with cavalier disregard for the interests of the company … Such conduct is manifestly not in the best interest of the company and may be considered reckless and dishonest. This conduct was indubitably with callous disregard for its effect on the company as a separate legal entity and at a time when he describes its financial situation as being parlous.Therefore, whilst a director is entitled to resign at any time, his resignation cannot be used as a means of evading his fiduciary duties as a director.”   
  • Concluding that “the conduct of the director adversely affected the [buyer] in a way that reasonably should not be countenanced and which constitutes an unconscionable abuse of the company’s juristic personality”, the Court declared him personally liable to repay her the purchase price, interest, and costs.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

© LawDotNews

The Trouble with Family Loans: A R540,000 Lesson

“How sharper than a serpent’s tooth it is to have a thankless child!” (Shakespeare)

“Family helps family in times of need” – that’s been part of human culture since long before the dawn of history but be sure to observe all legal formalities. A recent High Court decision provides an excellent example of the risks of not doing so.

Parents lose R540,000
  • A daughter in the middle of a divorce borrowed R540,000 from her parents so that she could buy out her spouse’s 50% share in her house.
  • As far as her parents were concerned it was a repayable loan, but when they had to sue their daughter for repayment they were in for a rude shock.
  • Although their daughter had admitted asking to “borrow” the money, the Court held that the parents had failed to prove (the onus being on them to do so) “the existence of a loan agreement, its terms and consequent breach thereof on a balance of probabilities”. Nor had they proved “the material terms and conditions agreed upon including the amount of the loan and the date of repayment”. Another nail in their coffin – they had failed to prove animus contrahendi (lawyer speak for “a serious intention to contract”).  
  • Their claim was dismissed with costs, so it’s goodbye to their R540k.
5 reasons why you need a contract, no matter how strong your family

One wonders how many families have rued their attitude of “We have a very close and strong family, and we trust each other with everything. No way do we need a contract. Forget it.”

But it’s not just a matter of trust. Consider these scenarios –

  1. Without a written contract, who is to say for certain that you are all on the same page as to whether it is a gift or a loan, and if so when and how it is repayable? You could in all innocence have two totally different visions of what you have agreed on. It’s only fair to everyone to put everything on record.
  2. Even the strongest families go through rough patches – it may be highly unlikely, but it happens, and our law reports are full of unforeseen and bitter family fights.   
  3. What if (horrible thought, but we must all be realistic) one of you dies before the debt is repaid? Now you are dealing not with a parent, a grandparent, or a child, but with the executor of their estate, an executor who will need proof of the loan and its terms.
  4. If a divorce should intervene, a family loan is as much an asset (or liability) as any other, and solid proof of it will be essential. 
  5. The same applies to an attack by a third party such as the taxman or a creditor.

Bottom line: Have a clear, written contract recording at the very least the amount of the loan and the agreed date and terms of repayment. For significant amounts of money, professional advice is essential.

A final thought – ask about the National Credit Act

It may seem strange in the context of a family, but your loan agreement will be unenforceable if you didn’t register as a “credit provider” in terms of the National Credit Act (NCA) in circumstances where you should have registered. In many cases it won’t be necessary, in that it doesn’t apply where family members are dependent on each other. Plus, only “arm’s length” transactions will as a general rule fall under the NCA. But there are grey areas here, so specific advice is again essential.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

© LawDotNews

Fired for Off-Duty CBD Oil Use and Cannabis Smoking

“… the [employer], in light of its dangerous environment, is entitled to discipline and dismiss any employee who uses cannabis or is under the influence whilst at work in contravention of its policy. Unfortunately, the Constitutional Court judgement does not offer any protection to employees against disciplinary action should they act in contravention of company policies.” (Extract from judgment below)

The Constitutional Court’s limited legalisation of personal cannabis use in private seems to have lulled some employees into a false sense of security when it comes to their employer’s right to restrict their cannabis use. A recent Labour Court decision illustrates.

Not stoned on duty, but tested positive

An employee was, in her off-duty hours, a regular user of CBD oil and a smoker of cannabis.

After repeatedly testing positive for the drug, she was dismissed. She approached the Labour Court claiming both unfair discrimination and automatically unfair dismissal. Her failure to win reinstatement on either ground is a warning to all employees in her position.

Here are the facts the Court considered, and its decision –

  • Her position was a “typical office or desk position” which was not a safety sensitive job in that she was neither required to operate heavy machinery nor drive any of her employer’s vehicles. However, she worked on premises with “highly dangerous operations”. 
  • She had thirteen years of service and an unblemished disciplinary record.
  • She had been prescribed medication for pain and anxiety, but due to the medication’s side effects she switched to daily use of CBD oil, plus she smoked cannabis recreationally to assist with her insomnia and anxiety. This, she said, also improved her bodily health, outlook, and spirituality.
  • As part of its safety rules, and because of the “highly dangerous operations in its premises”, her employer has a zero-tolerance “Alcohol and Substance Policy”, of which she was aware, enforced by workplace testing.
  • When she tested positive for cannabis use, she was told that she was unfit to continue working and directed to immediately leave the premises, then placed on a 7-day “cleaning up process” in terms of which the test would be repeated on a weekly basis until she was cleared by testing negative. 
  • She was not impaired or suspected of being impaired in the performance of her duties nor was she performing any duties for which the use of cannabis would be said to be a risk to her own safety or that of her fellow employees. Nor was she in possession or suspected of being in possession of cannabis whilst at work.
  • Nevertheless, when she continued to use cannabis, and therefore continued to fail her drug tests, she was dismissed after a disciplinary hearing at which she pleaded guilty to testing positive for cannabis. In mitigation she had said that she was never “stoned” or intoxicated or impaired at work, and that her use of cannabis was medicinal.
  • Unlike alcohol, cannabis can be detected in the body for a few days after occasional consumption, up to weeks for heavy users and up to months for chronic users. Also, unlike alcohol, one cannot determine a level of impairment based on test results.
  • But – and these were critical findings by the Court – “Proof of impairment is therefore not required as with alcohol, it is automatically assumed that one is under the influence of cannabis due to its intoxicating nature” and “… the fact that one is not impaired to perform duties does not in itself absolve that employee from misconduct in terms of the employer’s policy.” 
  • The employee continually tested positive, and would continue to test positive, because of her repeated and daily consumption of cannabis. Her performance had not been affected by her actions, but the employer’s issue was not one of performance but one of misconduct “and her performance is an irrelevant factor.”
  • There was no differentiation in the employer’s treatment of this employee and other employees, and in any event any such differentiation did not amount to impermissible discrimination as it was not arbitrary but “rational and served a legitimate purpose”.
  • She had only raised the question of her medical issues when caught out and as an “afterthought” but had had a responsibility “to properly approach the [employer] in order to raise her medical circumstances and for the [employer] to properly afford her situation an ideal and practical resolution.” In any event, said the Court, there was no “persuasive evidence” of her medical condition.
  • A final written warning would have served no purpose as she refused to stop consuming the cannabis.
  • Her dismissal therefore stands.
Lessons for employers
  • Have in place a clear and reasonable policy on intoxicating substances. As the Court put it in general “everyone is entitled to use cannabis in their own space and for recreational purposes” so you are going to have to justify any policy with an effect to the contrary. The “highly dangerous operations” in this employer’s premises no doubt played a significant part in the Court’s acceptance of this employer’s zero-tolerance approach to infringements of its safety rules, so tailor your policy to your particular business operations.
  • React reasonably to any request for a relaxation of your policy, don’t discriminate in any unjustifiable way between employees breaching it, and be sure to apply the appropriate sanction in cases of breach.
  • Most importantly, as always take specific legal advice – our employment laws are complex, and the penalties for breaching them severe.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

© LawDotNews

Website of the Month: Solar Power and the Insurance Risk

With our loadshedding woes unlikely to go anywhere soon, more and more property owners are looking to solar power as an alternative to relying on Eskom.

Just be careful that you don’t fall foul of your insurers in the process. “Rules homeowners should know before installing solar power” on MyBroadband lists four technical regulations to be particularly aware of.

For some practical advice on deciding whether or not to go the solar route in the first place, and if so how, read another MyBroadband article “What you should know before installing solar panels and batteries at your home” here.  Keep an eye also on the developing story around proposed new Eskom tariffs and “feed-in” tariffs.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

© LawDotNews

Buying and Selling Property: Who Pays What Costs?

“Risk comes from not knowing what you’re doing” (Warren Buffett)

Don’t risk not knowing what you’re doing when you either sell or buy property. Avoid nasty shocks by budgeting properly for the costs you will incur – some of them can be substantial, and some are less obvious than others. 

The checklists below are of necessity not exhaustive and you would do well to take specific professional advice and to get cost quotes before you finalise your financial planning.  

The costs you will pay as buyer

In the excitement of buying a house (particularly if it’s your first one!) it’s easy to underbudget and forget all the amounts of money you will have to pay over and above the purchase price.  

One suggestion is to budget for costs totaling up to about 10% of the purchase price, but here’s a list to help you with your own calculations (ignore any items that don’t apply to your purchase) –

  • Transfer duty (a government tax payable to the state via SARS unless the sale is subject to vat). You will pay on a sliding scale depending on the purchase price and beware – this can be a substantial cost!
  • The applicable transfer fees that the conveyancers will charge for their services in handling the transfer (you must pay these before transfer)
  • Deeds Office fees
  • Bond registration fees charged by the bank’s attorney
  • Bond/Home Loan initiation fee payable to the bank (the bank may also require you to take out a home loan protection life policy)
  • Occupational interest, if payable when you move in before the transfer takes place
  • Pro-rata rates, municipal charges and levies (some payable in advance)
  • If you are buying into a complex (sectional title or Homeowners Association) you may be liable for body corporate or HOA levy clearance fees in addition to pro-rata levies
  • Don’t forget other costs like moving costs, redecorating, telephone and internet connections, water and electricity deposits etc
  • Also remember to budget for your ongoing monthly costs of property ownership – rates, levies, municipal services, insurance (building and contents), security, building maintenance and the like.
The costs you will pay as seller

Again, ignore any of these items that don’t apply to your particular sale –

  • Estate agent’s commission (don’t forget the vat component)
  • Certificates of compliance – electrical, water, gas, electric fence, and the like. Provide also for the possibility of repairs and upgrades to ensure compliance with regulations
  • Bond cancellation fees (be careful here to give the bank enough notice to avoid having to pay an early termination penalty as well)
  • Rates and levies
  • If you live in a complex, there may be other fees payable to your body corporate or Homeowners Association.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

© LawDotNews

Trusts on Divorce: Are You Stuck with an Ex-Spouse as Trustee?

“Love is grand. Divorce is a hundred grand.” (Anon)

That’s a great scenario whilst the marriage prospers, but what happens on divorce? A recent High Court decision addressed one such scenario –

Trusts may be formed for a variety of reasons, and the purpose and structure of each trust will inform the choice of trustees. When it comes to families aiming to preserve and protect family assets for future generations, often both spouses are appointed not only as beneficiaries, but also as trustees.

‘Not the Titanic’ – this marriage took six years to sink

In 2014, whilst a marriage was (as the Court put it in a judgment rich in nautical imagery) “still in calm waters”, the spouses formed four trusts. Two were called business trusts, one a property trust, and the fourth a family trust. Naming choices aside, the critical issue is that both spouses had been appointed as trustees.

Regrettably in 2015 the couple “drifted” apart and their marriage “ran aground and settled on the rocky shores of the divorce courts door” with the institution of divorce proceedings. “Unlike the Titanic” observed the Court, the relationship took six years more to be finally laid to rest – the divorce was only granted in 2021.

The ex-spouses apply for each other’s removal as trustee

The ex-husband then applied to the High Court for removal of his ex-wife as trustee of all four trusts on the grounds that she had breached her duties as trustee. Most significantly, he said, she had failed to attend trustee meetings for some five years despite being invited to them.

  • Her main defence was that, in the context of the ongoing divorce proceedings, her ex-husband’s conduct made it impossible for her to attend to her duties as trustee.The Court was unconvinced by her various allegations in this regard, and two aspects in particular bear mention –
    • She complained that being in the minority her decisions were overruled – not an excuse for failing to attend meetings held the Court.
    • Her ex-husband failed to provide a vehicle to enable her to attend meetings – again no excuse, said the Court, there being a provision in the trust deed for virtual meetings.
  • Also counting against her was the fact that she was living in a trust-owned property “but fails to maintain such and pays no rent at all despite receiving the amount of R10 000,00 per month towards property expenses incurred.”
  • Finding that she had not been involved in the trust’s affairs and did nothing to safeguard them, the Court ordered her removal as trustee.

The Court then rejected as being without merit her counterclaim for her ex-husband’s removal as trustee on the grounds of a breach of his duty of trust towards her and a conflict of duty between his private interests and his duties as trustee.

Let’s have a look at the law behind those decisions –

What are a trustee’s duties?

Per the Trust Property Control Act: “A trustee shall in the performance of his/her duties and the exercise of his/her powers, act with the care, diligence and skill which can reasonably be expected of a person who manages the affairs of another”.

Must a trustee be impartial?

The Court: “It is not required of a trustee to be total[ly] impartial or [to have] no connection with the beneficiaries, but rather that he or she is capable of bringing the necessary independent mind to bear [to] the business of the trust and of deciding what is in the interests of the trust.”

When will a court remove a trustee?

The court has a discretion which it must exercise “with circumspection”.

Per the Court: “The court has to be satisfied that the requested removal will be in the best interest of the trust and the beneficiaries … a mere conflict of interest between trustees and beneficiaries or amongst the trustees [is] insufficient for the removal of a trustee … the overriding question is always whether or not the conduct of the trustee imperils the trust property or its administration”.

There is no requirement to prove bad faith or misconduct, rather “the essential test is whether such disharmony, as in the present matter, imperils the trust estate or its proper administration … It is therefore clear that the court may remove a trustee from office in the event that such removal will be in the interest of the trust and its beneficiaries.” (Emphasis supplied)


In closing…

If you are faced with a divorce scenario, avoid a situation such as the ex-spouses in this matter faced by making sure that all questions around any trusts involved – such as who is to remain as trustee, who is to remain as beneficiary and so on – are resolved as part of the divorce process, and not left for future resolution.

Even better, take professional advice upfront when setting up trusts on how to avoid any future disputes that may arise should your marriage ever sail into stormy waters.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

© LawDotNews

Bodies Corporate: Forcing Access to Units, and Round Robin Resolutions

Owning your own property comes with a raft of benefits, including a general right to privacy and control over who can access your property and who can’t.

But of course there are exceptions. And apart from the obvious ones, a recent High Court judgment highlights one that is particular to sectional title schemes. It involved a unit owner whose “recalcitrant actions” prevented a body corporate from entering his unit to check for a water leak.

A recalcitrant unit owner blocks access to his unit for a leak test
  • A unit in a sectional title scheme had a damp problem and the neighbouring unit owner initially allowed the body corporate access to his unit to conduct a leak test. No leaks were found.
  • However three months later the damp problem was still unresolved, and this time the neighbour flat out refused access to his unit for a second leak detection test. Requests for access through the managing agents, loss adjusters, leak detection agents and the body corporate’s attorneys all fell on deaf ears.
  • The body corporate applied to the High Court for an urgent order compelling access within 48 hours.
  • Although the neighbour had initially taken the stance that there was no reason why a second inspection should be conducted, he had a last-minute change of mind (after taking legal advice) and accepted that the body corporate is entitled to conduct reasonable inspections from time to time in order to properly manage the common property. He made a settlement offer to this effect to the body corporate, which rejected the offer as it still wanted its costs.
  • Ultimately the Court rejected the neighbour’s attacks on the body corporate’s standing to bring the court application and held the neighbour liable to the body corporate for both the leak detection costs and the legal costs (only on the Ombud’s tariff – more on that below).
Were the body corporate’s round robin resolutions valid?

At issue was the validity of two body corporate resolutions. The full details of the various legal challenges mounted against the resolutions will be of great interest to industry professionals, but for most bodies corporate and unit owners perhaps the most important practical aspect is the attack on the first resolution because it was signed only by two of the five trustees on a round robin basis.

The Court was unimpressed by the neighbour’s argument that the resolution was defective because it was not signed by a majority of trustees and did not record date, place, and time.

“It is common practise” said the Court “what with the onslaught and the lagging effects of [Covid 19] that trustees, shareholders, governing bodies and directors meet virtually and sign documents via round robin.”

“It is … not uncommon for [trustees] to manage the affairs of the body corporate as they deem fit and in the best interests of the owners. Ad hoc and informal meetings are often held in order to deal with incidents without having to call or convene a formal meeting of the trustees.”

Each case will be different

The particular facts in this case clearly played a significant role in the Court’s ultimate decision, and there is no substitute for legal advice specific to each unique set of circumstances.

For example, one of this scheme’s Management Rules specifically caters for a trustee meeting by ‘any other method’ which, said the Court “in my view would encompass and encapsulate the extension of the method of signing resolutions. It would be absurd to consider or apply anything to the contrary.”

Important also was the Court’s finding that “throughout the entire process all the trustees were aware of and informed of what was transpiring”.

Finally, a warning from the Court to always approach the Ombud first

The Court once again confirmed the principle that in a matter such as this the parties should in the first instance approach the CSOS (Community Schemes Ombud Service) rather than the High Court.

Commenting that “I am of the view that this matter should never have been brought before this court as first instance” and “There are no exceptional circumstances pertaining to this matter, but rather issues that fall squarely within the ambit of the Ombud that can and would have been expeditiously dealt with at no cost as the employ of legal representatives is not permitted” the Court awarded legal costs to the body corporate only “on the tariff applicable in respect of proceedings under the ambit of the Ombud”.

Reading between the lines, the body corporate was possibly fortunate that the High Court agreed to hear its application at all. It may well have been saved only by the Court’s expressed displeasure with the neighbour’s “recalcitrant actions” and by his conduct in opposing the application in the first place.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

© LawDotNews

Verbal Agreements – Not Much Good, But Lots of Bad and Ugly

“The Good, The Bad, and The Ugly” (Spaghetti Western, 1966)

A common myth – one that can get you into a whole lot of trouble if you aren’t alive to it – is that verbal contracts are not legally enforceable in South Africa.

The opposite is true. With very few exceptions, our law will hold you to all your agreements, whether oral or written.

What verbal agreements aren’t binding?

Not many. Only a few types of agreement must be in writing to be fully valid, the most common being contracts for the sale, exchange, or donation of land or of any “interest in land”, ante-nuptial contracts (ANCs); and deeds of suretyship.

So, watch what you say!

Firstly, although our laws of contract are complex, with many exceptions and “ifs and buts”, at the most basic level the only requirements for a binding contract are an “offer” and an “acceptance” of that offer.

So, watch what you say! Make an offer to someone else, or accept another person’s offer, and that little voice at the back of your mind telling you “Don’t worry, you aren’t actually tying yourself into anything here” is very likely to be (a) totally wrong and (b) getting you into a whole lot of trouble.

The danger – a little bit of Good, but mostly Bad and Ugly

Of course, verbal agreements do have their benefits – they’re quick, easy, and cost-free. We enter into little give-and-take deals with others in our daily lives without a second thought and with not a drop of ink in sight. And that’s absolutely fine for the little things.

But contracting orally is a terrible idea when the stakes are high –

  1. Our not-so-sharp memories: As the old proverb warns us: “The bluntest pencil is better than the sharpest memory”. It’s a human trait for us to “hear what we want to hear”. And to remember what we want to remember. You and the other person could well, in all innocence, come away from exactly the same discussion with totally different ideas and memories of what you actually agreed to.Next thing you know you’re both in court, swearing to the truth of your own versions and leaving it to a judicial officer to try and decide whose recollection is the more accurate. That decision could go either way.Record what you agree to, for all to see.
  2. The fraud risk: Worse, if your opponent isn’t above stretching the truth a little (or a lot!) you have the same problem but magnified. Make it difficult for a dishonest party to wriggle out of an agreement – or to misrepresent its terms – by recording it in black and white.
  3. Proof: Which brings us to the question of proof. With an oral agreement it is your word against theirs. At best, you may be lucky enough to have a witness available to support your version, but such a witness may or may not have a good memory and high credibility. That can never match up to the evidential weight of a “signed, sealed and delivered” contract.
  4. Certainty and Dispute: Let’s bring that all together under the heading of “certainty”. Although written contracts aren’t perfect – our courts are regularly faced with disputes over them – there’s a lot less room for misinterpretation, uncertainty, and dispute when you can stand up in court waving a signed piece of paper rather than saying “As I recall it…”
An end note on electronic contracts

This is a whole other topic on its own, but bear in mind that since the arrival on the scene of the ECT (Electronic Communications and Transactions) Act you can often contract electronically via email, WhatsApp, and the like. There’s both a warning there (“be careful what you agree to electronically!”) and an opportunity (“paper, pen and ink not always needed!”). Take professional advice in any doubt.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

© LawDotNews

Website of the Month: Don’t Let Hybrid Work Break Your Company Culture!

As pandemic restrictions ease around the world, many businesses forced by lockdown to “go remote” are torn between returning to office and keeping everyone working remotely. An increasing number are opting for one or other hybrid model, which can come with major benefits but also major challenges.

One of those challenges is the risk of losing a cohesive company culture built up over years and perhaps decades of in-office teamwork.

Have a read of PwC’s “Three ways to prevent hybrid work from breaking your company culture” here for some ideas on mitigating that risk.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

© LawDotNews

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We are open during Lock-Down!

Our legal team are available to consult with you via remote connection (Skype, Zoom, WhatsApp etc.) during the lock down period.

Please contact us for more details and let us know which date and time will suit you.

Tel/WhatsApp: 0824648701
Email: mimi@mkarstelattorneys.co.za
Skype address: mimi.karstel