The “bastard conjunction” – “and/or”

“ … ‘and/or,’ that befuddling, nameless thing, that Janus-faced verbal monstrosity, neither word nor phrase, the child of a brain of someone too lazy or too dull to express his precise meaning…” During the past eighty years or so the conjunction “and/or”…

Topics: Contract Law | Dispute Resolution | Running Your Practice

What is one month’s notice?

The interpretation of a “month’s notice” in a termination clause and whether a qualifier, such as a “calendar month’s notice”, bears any significance, has been the subject of debate in our law for some time. In 2009, the court in SAMRO v Mphatsoe (SAMRO)…

Topics: Contract Law | Labour Law

When should a court interfere in a contractual relationship? Pacta sunt servanda & public policy

The principle of pacta sunt servanda translates literally as “agreements must be kept” and forms the basis of the common law of contracts. When two parties willingly and knowingly enter into a contract, the terms of that contract should be upheld by both parties.…

Topics: Contract Law | Property Law

Keep a lid on it: the importance of non-disclosure agreements

A successful business is one which is able to exploit any opportunity available to it and, in doing so, maintain a competitive edge in its market. The exploitation of such opportunities may mean entering into relationships with third parties, which requires the …

Topics: Commercial & Corporate Law | Contract Law

SARS vs Reunert: How a competently drafted contract saved millions

The recent matter of The Commissioner for SARS v Reunert Ltd highlights the importance of possessing an intimate understanding of contractual principles when drafting an agreement. In this case, SARS found itself on the losing end of a Supreme Court of Appeal judgment,…

Topics: Contract Law | Tax Law

Electronic communications and legal agreements

Living in the age of electronics may have far reaching consequences on legal agreements. In the past, the physical writing and signing of an agreement was generally accepted as being the only method in which a written agreement could be varied or cancelled. Many written…

Topics: Contract Law | Dispute Resolution | Technology Law

WhatsApp: A unique, convenient method of cancelling a contract?

The rapid rise in modern technology, the advent of smartphones as well as the increased popularity of social media and instant messaging services such as WhatsApp, have resulted in easier, effective, lightning quick communication between parties in addition …

Topics: Contract Law | Dispute Resolution | Technology Law

Contingency fee arrangements: Clarifying the common law position

The Contingency Fees Act 66 of 1997 (“the CFA”) legitimises and regulates the conclusion of contingency fee arrangements between legal practitioners and their clients. The CFA prescribes certain formalities for the conclusion of a lawful contingency fee…

Topics: Commercial & Corporate Law | Contract Law | Dispute Resolution | Government, Politics & Policy | Running Your Practice

The nature of cession in security

The cession of incorporeal rights is a legal principle on which significant amounts of money are transacted in the South African market. Cession is a bilateral juristic act whereby the cedent transfers its rights to the cessionary. The cession can be constructed…

Topics: Commercial & Corporate Law | Contract Law | Dispute Resolution

Your email can legally bind you to a contract

One of the main aims of the Electronic Communications and Transactions Act 25 of 2002 (ECTA) is to promote legal certainty in respect of electronic communications and transactions. Section 13(3) of the ECTA states that: “Where an electronic signature is required…

Topics: Contract Law | Technology Law

Potential tax consequences of the waiver of a contractual right

The term ‘disposal’ is widely defined in section 11 of the Eighth Schedule to the Income Tax Act 58 of 1962 (“the Income Tax Act”), and includes the waiver of an asset. For purposes of donations tax, a donation is defined in section 55(1) of the ITA as “any gratuitous…

Topics: Contract Law | Tax Law

Flirting with co-branding – The considerations

At the supermarket a few days ago, I came across a pack of Stimorol chewing gum flavoured with Halls Menthol. I’m not an avid bubble gum-chewer, but being an ardent lover of Halls Menthol, I simply couldn’t resist buying a pack. Had it not been for the Halls Menthol…

Topics: Contract Law | Media & Entertainment Law

Property law, contracts and the Constitution

In the recent as yet unreported case of Bondev Holdings Midrand (Pty) vs Mulatedzi Alton Madzhieand others delivered by Acting Judge CR Jansen on 19 December 2016 in the Gauteng High Court, important contractual issues in a constitutional perspective were…

Topics: Constitutional Law & Civil Rights | Contract Law | Insurance Law | Property Law

Advice for Start-Ups in Negotiating with Investors

Should you as a start-up (although this advice is applicable to any party in a contractual negotiation) find yourself negotiating with potential investors, you will most likely be presented with a term sheet, or even final transaction documents, which set out the…

Topics: Commercial & Corporate Law | Contract Law

Is There Still Place For Fixed-Term Contracts In The Construction Industry?

Can a construction contractor automatically terminate its employees’ contracts when skills are no longer required for a construction project? This question was at the centre of the Labour Court case of National Union of Mineworkers obo Milisa and Others v WBHO…

Topics: Construction & Engineering Law | Contract Law | Dispute Resolution | Labour Law

Liability for special levies

This article examines the legal issue of whether the purchaser or seller of an immovable property is responsible for the payment of special levies raised by the body corporate or the home owners association concerned before transfer occurs. Basic Context When a …

Topics: Contract Law | Property Law

Inland and coastal refineries and the cost of transporting oil – Transnet v Total

The recent Supreme Court of Appeal (“SCA”) case of Transnet v Total is important not only for those in the petroleum industry, but also, more generally, when it comes to aspects of competition and discrimination, as well as the impact of changes in the law …

Nobel economics prize awarded for work on contract theory

On the 10th of October 2016, British-American Oliver Hart and Finnish Bengt Holmström were awarded the Nobel economics prize (including $922 000) for their transformative work on contract theory. According to the Nobel jury, the professors developed theoretical…

Topics: Contract Law

The Position Of Non-Citizens In Employment Agreements

In order to encourage the employment of ‘professionals’ in Mauritius, the Immigration Act was amended by the Business Facilitation (Miscellaneous Provisions) Act 2006 to provide for a quicker process for the employment of ‘professionals’ with a monthly…