ENS acted on behalf of Investec Bank Limited in an application for summary judgment against a defendant where the defendant had stood surety for the debts of certain companies. By the time of the summary judgment hearing, the defendant had already made application to place the companies under supervision in terms of the business rescue… Continue Reading
Tender in Full Settlement
Payments in full and final settlement The question to ask is whether the payment is tendered after a dispute has arisen in respect of which there have been negotiations or litigation, or whether it is made in isolation. In summary: The acceptance by a creditor of a tender made in full and final settlement may,… Continue Reading
Legalese Vs Plain Language
Legalese is a pattern of writing that is lengthy, obscure, and intelligible only to lawyers but not the man in the street. Have you seen a contract written in legalese before? This is a typical clause. “In the event that the Party of the First Part undertakes any act or effort whatsoever to extend such… Continue Reading
Conversations recorded without your consent can be used against you
When can conversations recorded without your consent be used against you Today it is so easy for an employer or employee to record a conversation, using a cellphone. Must the other party consent to such recording, before it can be used for or against him or her in a court of law, disciplinary enquiry, etc.?… Continue Reading
Enforcement of Foreign Judgments
Source: Herbert Smith Freehills LLP Which domestic laws and regulations govern the recognition and enforcement of foreign judgments in your jurisdiction? The enforcement of foreign judgments in South Africa is governed by: the Enforcement of Foreign Civil Judgments Act (32/1998) (EFCJ); and the common law. The EFCJ applies only to judgments handed… Continue Reading
Contract Non-Variation Clause
Is cancellation of a contract by email valid? The tenant of leased premises purported to cancel a lease through the exchange of emails. A non-variation clause in a lease required that cancellation be in writing and signed by parties. Then landlord sought and was granted an interdict by the High Court in that the emails… Continue Reading
Can a hotel guest sue for an injured ankle?
A guest slipped and fell in a hotel bathroom and injured his ankle. The court, in Klassen v Blue Lagoon Hotel and Conference Centre had to decide if the hotel was negligent and had to pay the guest damages. The defendant disputed liability, alleging that the plaintiff was drunk at the relevant time. It also… Continue Reading
What is the difference between a suretyship and a guarantee?
ABC (Pty) Limited (the creditor) wants to sell goods for a large amount to XYZ (Pty) Ltd (the debtor, also known as the principal debtor). The creditor needs some form of comfort that the debt will be paid. Typically, it could ask for a cession of the book debts of the debtor or a pledge… Continue Reading
The Application (or not) of Ubuntu in Commercial Contracts
In Roazar CC v The Falls Supermarket (232/2017) [2017] ZASCA 166 (29 November 2017) the Supreme Court of Appeal was asked to decide whether a contract can be terminated without first negotiating in good faith because of ubuntu. The full bench held that it is not competent for a Court to import a term not… Continue Reading
Must a contract be in writing to be binding?
Elements of a contract A contract consists of an offer by the offeror (the seller or service provider) to the offeree (the buyer or client) to buy goods (movable or immovable) or services, for an agreed price or fee; A contract becomes binding when the offeree accepts the offer; Obviously, there must be agreement as… Continue Reading
