Yearly Archives: 2014

Contract Law: Applying the abstract theory in property transfers

In transactions where immovable property is sold and transferred, ownership will only be transferred when there is an agreement of sale (which may be regarded as the “underlying transaction”) and upon registration of the deed of transfer.

There are two theories that relate to the transfer of property, namely the causal theory and the abstract theory. South-African law follows and applies the abstract theory.

We may differentiate between the abstract and causal theory when it concerns how real rights are transferred... Read More

Employment Law: Disclosing information during the interview process

Before taking on a new employee, it is natural that an employer would like to get as much information as possible about the candidate before making the decision to hire. We need this information to determine whether the person possesses the necessary skills to do the job they are interviewing for, to ascertain whether the person would be a suitable personality or culture fit for the business, and to determine whether there are any personal or other issues that could interfere with the person’s ability to perform their duties... Read More

Exemption Clauses: Changes in the Legal Landscape

Much has changed in the legal landscape surrounding exemption clauses from when the landmark case of Durban’s Water Wonderland (Pty) Ltd v Botha 1999 1 SA 982 (SCA) was decided. In that case, the court had to decide on the enforceability of a disclaimer notice when the plaintiff and her daughter were flung from a jet ride in an amusement park. The SCA held that, since the defendant had done whatever was necessary to bring the notice to the attention of the plaintiff, the notice could be incorporated into the contract between the plaintiff and defendant, and the disclaimer notice was upheld... Read More

Shipping Law: Co-ownership in Unregistered Vessels

Section 15 of the South African Ship Registration Act 58 of 1998 provides for ownership of shares in a South African ship by co-owners.

Registration of vessels on the SA Ship Register (as opposed to mere SAMSA certification) and the shares therein has various benefits, including a public recordal and prima facie proof of ownership in the vessel. It also allows the vessel to legally sail beyond the South African territorial waters as well as various other legal benefits and consequences... Read More

Cryptocurrencies: An international and local perspective

Cryptocurrency, also known as ‘virtual currencies’ or ‘cryptographic money’ is a digital form of currency in which encryption techniques are used to regulate the generation of units of currency and verify the transfer of funds. Cryptocurrencies operate completely independently of a central bank. They are essentially a decentralised digital cash system.

The European Central Bank defines cryptocurrency as:

“a digital representation of value that is neither issued by a central bank or a public authority, nor necessarily attached to a flat currency, but is accepted by natural or legal persons as a means of payment and can be transferred, stored or traded electronically” 

See a diagram indicating the process underlying cryptocurrencies here... Read More

Property Law: land claims on immovable property sold

It appears that most of the land claims relates to agricultural land, therefore it is very important to check with your seller whether there is a land claim pending against the property to be sold.

It is not illegal to sell land that has a claim on it, but this must be disclosed to the buyer by the seller.

In terms of the Restitution of Land Rights Act 22 of 1994, once a notice is published in the Government Gazette to confirm a claim meeting the administrative requirements has been received:

no person may in an improper manner obstruct the passage of the claim; no person may sell, exchange, donate, lease, sublease, rezone or develop the land in question without having given the Regional Land Claims Commissioner one month’s written notice of his or her intention to do so, and, where such notice was not given in respect of – any sale, exchange, donation, lease, subdivision or rezoning of land and the Court is satisfied that such sale, exchange, donation, lease, subdivision or rezoning was not done in good faith, the Court may set aside such sale, exchange, donation, lease, subdivision ore rezoning or grant any other order if deems fit; any development of land and the Court is satisfied that such development was not done in good faith, the court may grant any order if deems fit... Read More

The Subdivision of Agricultural Land Act: a review

The Subdivision of Agricultural Land Act No. 70 of 1970 (“the Act”) restricts the subdivision of agricultural land except with the permission of the minister. The Act was scheduled to have been repealed by the Subdivision of Agricultural Land Act Repeal Act. This Act has, however, never been put into operation.

The Act defines “agricultural land” to mean any land except:

land situated in the area of jurisdiction of a municipal council, city council, town council, village council, village management board, village management council, local board, health board or health committee, and land forming part of, in the province of the Cape of Good Hope, a local area established under section 6(1)(i) of the Divisional Councils Ordinance, 1952, and, in the province of Natal, a development area as defined in section 1 of the Development and Services Board Ordinance, 1941, and in the province of the Transvaal, an area in respect of which a local area committee has been established under section 21(1) of the Transvaal Board for the Development of Peri-Urban Areas Ordinance, 1943, but excluding any such land declared by the minister after consultation with the relevant executive committee and by notice in the Government Gazette to be agricultural land for the purposes of the Act; land which forms part of any area subdivided in terms of the Agricultural Holdings (Transvaal) Registration Act, or which is a township as defined in section 102(1) of the Deeds Registries Act, but excluding a private township as defined in section 1 of the Town Planning Ordinance, 1949, not situated in an area of jurisdiction or a development area referred to in paragraph 3.2.1; land of which the state is the owner or which is held in trust by the state or a minister for any person; land which the minister, after consultation with the relevant executive committee and by notice in the Gazette, excludes from the provisions of the Act... Read More

Business rescue, can it work?

Business Rescue is a relatively new concept, having only been law since 1 May 2011 and is govern by the Companies Act 71 of 2018. But does it work?

Given the right set of circumstances, it does work.

Business rescue provides a “breather” for financially distressed companies.  It functions as a temporary moratorium on the rights of creditors against the company, and the suspension of contractual obligations of the company.  This allows the appointed business rescue practitioner to either restructure the affairs of the company (assets, liabilities and equity) that maximises the likelihood of the company being able to trade back to solvency, or to realise the assets of the company to secure a better return to its creditors and shareholders, than in the case of a liquidation... Read More

Joint Ownership in Immovable Property

The following legal aspects regulate joint ownership in immovable property and the partition thereof.

The parties own the property in undivided shares, meaning that no owner is the sole owner of any particular portion of the property. They both own the property as a whole. The ratio of the parties shares is only relevant with regard to their liability for payment of expenses and sharing profits. Parties may regulate their rights and duties by agreement between them, whether in writing, implied or tacit terms... Read More

The Labour Law Amendment Bill: A step in the right direction?

It may indeed be the case that South African Labour Laws are not as advanced in comparison to other countries in the world, however it is quickly developing in the right direction.

On the 15 November 2018 the president Cyril Ramaphosa in stated that he is in the process of passing various bills amongst many being, the Labour Law Amendment Bill.

BACKGROUND

On the 23 of November the President of South Africa signed the long awaited Labour Law Amendment Bill into law and was effected on 27 November 2018... Read More

Labour Relations: Important new legislation of 2018: the Labour Relations Amendment Act, Basic Conditions of Employment Amendment Act & the National Minimum Wage Act.

2018 drew to a close and as we herald in a new year, so too have we seen the signing into law of the Labour Relations Amendment Act, Basic Conditions of Employment Amendment Act and the National Minimum Wage Act. The Acts have been signed off by the President and are due to come into effect in January 2019. The below would be a brief summary of the amendments.

The Labour Relations Amendment Act significantly amends section 69 dealing with picketing... Read More

The Global Pact for the Environment: A Critical Evaluation

A critical evaluation of the Global Pact for the Environment is undertaken with reference to the historical development of human rights and their link to the development of environmental rights; other initiatives to develop a comprehensive global treaty and motivation for the inclusion of distinctive environmental law principles and rights which should be included in the Global Pact.

I INTRODUCTION

The environment and environmental protection have only relatively recently become a matter of international concern. As such, the development of an internationally recognised environmental right has been a topic of much interest and debate: should there be a right to a healthy environment?.. Read More

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