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  • CONVEYANCING AND TRANSFERRING ATTORNEYS IN GAUTENG

    To transfer the ownership of a property, from the seller to the purchaser, can sometimes be a nerve-wrecking and misunderstood process. It is our team at Barnard Incorporated Attorneys’ mission to assist you to enjoy the big life decision of purchasing a house and providing you with sound advice on how to make your home buying experience as effortless as possible.

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  • What are the rights of unmarried fathers?

    Prior to the commencement of the Children’s Act (38 of 2005), unmarried fathers did not have automatic rights and responsibilities pertaining to children who were “born out of wedlock”.


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  • PATENTS

    In South Africa, a patent may be granted for any new invention which involves an inventive step and which is capable of being used or applied in trade, industry or agriculture.

    The abovementioned requirements in obtaining a patent for an invention are for the most part universal, in that most countries have the same uniform requirement for its patentable subject matter, with minor deviations in some countries, which are:
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  • Trademark registration: Protecting your own

    In the highly competitive market place, businesses are required to invest an essential amount of time and money in developing products and services that are new and innovative in order to compete with opposition businesses and to ensure their survival. This investment directly contributes to the building of a brand that in turn attracts goodwill in the market place. Customers associate the quality of the products and services to a name and build trust and loyalty towards it. Consequent to this reputation and clientele which a business attracts through good service and products, often other businesses, unimpressively so, capitalize on that hard work by imitating that business or services and/or creating products that are very similar or the same as the original products – perhaps mostly unlawfully so. Mostly, these products or services are not of the same quality as the original and this could lead to the proprietor business suffering damages and could lead to the dilution of the brand.

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  • IP COMMERCIALISATION / COMMERCIALISING YOUR IP

    The intellectual property (IP) of a person or a company is, in most cases, the most valued asset of that person or company. So much so, that well-established IP rights can be provided as security to financial institutions to obtain loans or form part of negotiations in large corporate considerations.

    Obtaining a patent for an invention; a trade mark for a brand name; a design right for a new design or even having copyright subsist in works created is merely the first step in protecting and enjoying your IP.

    The next phase in the successful exploitation of your IP is the commercialisation thereof. There are a multitude of ways how your IP can be commercialised to produce maximum profit, i.e., licensing, distribution, cessions, assignments, manufacturing, profit-sharing etc.

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  • Tax Ombud’s report on the investigation into alleged delayed payments of refunds

    On 28 August 2017, the Tax Ombud Judge Bernard Ngoepe (“the TO”) released its report on investigation into alleged delayed refund payments from SARS to taxpayers.

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  • Medical Scheme Tax Credits – Proposed Changes

    In his latest budget speech, Health Minister Aaron Motsoaledi has proposed that government withdraw tax incentives to medical aid schemes in order to create a transitional National Health Insurance (NHI) fund.

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  • COPYRIGHT IN SOUTH AFRICA


    Intellectual property is a term used to describe the products of the human intellect and include designs, trademarks, patents and copyright. These products of the human intellect are protected by various laws which convers upon the creator of the product, for a limited period, exclusivity as to the exploitation thereof and in essence to capitalise financially from the product. Copyright is a subdivision of the bundle of Intellectual property rights which, under the South African Law is governed by the Copyright Act 98 of 1978.

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  • The Process of Transferring Property: A Stepwise Guide

    Step 1:

    The purchaser and the seller enter into an agreement by way of an offer to purchase the immovable property, which then forms the basis of the transaction. The seller appoints the conveyancing/transferring attorney and if the seller has no specific preference, the agent may introduce a conveyancing/transferring attorney.


    Step 2:

    If applicable, the purchaser will apply for finance from a financial institution to enable him/her to purchase the property. The offer to purchase would normally include this provision as a suspensive condition - which means that it is required to happen before the sale may occur.


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  • 2017 Draft Taxation Laws Amendment Bill – A focus on Share buy-backs

    The latest Draft Taxation Laws Amendment Bill (“the Bill”) was published on 19 July 2017. The Bill intends to materially alter the tax consequences on certain transactions including the tax consequences relating share buy-backs.

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  • Budget Article

    On the 22nd of February 2017, the Minister of Finance, had the daunting task of announcing the 2017/2018 budget to our nation. Faced with a personal income tax revenue shortfall of R28 billion due to a slowdown in the economy, the unemployment rate reaching close to 27% and the debt to GDP ratio reaching over 50% at the close of 2016 it was certainly expected that measures would be implemented by the minister to increase revenue levels.

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  • How to register as a National Credit Provider

    Given the latest changes to the National Credit Act, No 34 of 2005 (hereinafter referred to as the “Act”) by the National Credit Amendment Act 19 of 2014, legal entities must determine whether they are regarded as credit providers in terms of the Act and the next practical step is to then register as a credit provider. This article will provide the guidelines to assist credit providers with the registration process to ensure compliance with the Act.

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  • Should I register as a Credit Provider?

    In the current economic climate where more than 11 million of South Africans are over indebted it is often found that persons conclude personal loans amongst themselves in order to escape the stringent credit requirements imposed by the National Credit Regulator. The crisp question to consider is whether a natural person who is not registered as a credit provider may extend credit. A trite defence often used by debtors who fail to honour their obligations is, “the credit is void based on the failure on part of the credit provider to register as a credit provider”. 1 The effect of the latter is that the debtor is abolished from the obligation to repay the debt.

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  • Ever thought about spending a night in jail?

    Most people never even contemplate the possibility of being arrested. But the sad reality is that, it may just happen when you least expect it. Should the question be raised about what you will do first when arrested, you might come up with a quick answer – phone an attorney of course! This may actually be easier said than done, especially if you get arrested late at night or over a weekend. How will you then be able to get legal assistance to apply for bail?

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  • Work Functions Indemnity

    Social events and work functions are arranged to reward employees and raise morale however professionalism and etiquette remain important at these functions. Any substances and/or alcohol abuse are strongly discouraged, as misuse of any substance that impair your senses are dangerous for both your and other’s well-being. If you choose to use alcohol at work functions we request that you do so cautiously.

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  • PARENTING PLAN – HOW DOES IT WORK?

    Since the commencement of the Children’s Act (Act 38 of 2005) on 1 April 2010, the concept of a parenting plan became one of the new “buzz words” where solutions to disputes pertaining to children in divorce actions were considered. Parenting plans, of course, do not only apply to disputes as a result of divorce actions, but we will deal therewith further below.

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  • Strike action explained

    Every year South African businesses await the so-called “strike season” which businesses so rightfully fear. This is the season when employees down tools and disrupts the workplace in order for the employer to subject to their demands. Dealing with a strike is extremely difficult and proper attention should be given as it impacts on every aspect of the business of an employer and could have far-reaching effects, not only on the financial position of the affected business, but also on the South African – and international – economy as a whole.

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  • The Importance Of Disciplinary Codes

    Working in accordance with rules and regulations may not always be a notion one is willing to adapt or willing to conform to, but the value of having rules and regulations within a workplace will unequivocally contribute to the success and sustainability of the company – the ultimate goal in any work environment.

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  • A new view on the “deemed” employee

    In the previous issue, an article which related the interpretation of the “deeming employment principle” as provided for in section 198 A (3) (b) of the Labour Relations Act (“the Act”) was published which, as believed at the time of publishing, was meant to shed light on this controversial topic. However, yet again the position has changed as the Labour Court has subsequently reviewed and set aside the award made by the Commission for Conciliation, Mediation and Arbitration (“ CCMA”) which served as the basis for clarity notionally brought therewith.

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  • The controversial “deemed” employee

    In a recent CCMA Arbitration conducted, the Commissioner was tasked with determining the correct interpretation of the “deeming provision” as provided for in section 198 A (3) (b) of the Labour Relations Act ( “the Act”).

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  • Referrals, Set Downs And The Dispute Resolution Procedure

    Often employers do not receive notifications from relevant forums timeously – sometimes not even at all – after employees who were dismissed refer the matters to such forums for the appropriate process. It leaves an employer in a disadvantaged position.

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  • Amendments to Labour Relations Act: Non-standard Employment

    With all the recent controversy surrounding the amendments to the Labour Relations Act it may be prudent to provide a short overview containing the most contentious amendments, being the regulation of non-standard employment.

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  • Constructive Dismissal

    Have you ever been faced with an employee who claimed that the working environment that he or she is faced with, is so intolerable that continued employment is impossible resulting in the employee handing in his/her resignation? This scenario is known as constructive dismissal.

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  • Poor Work Performance

    Many employers have faced circumstances where potential employees exceed expectations in interview stages and seem to be the perfect fit for the position, only for those employers to be disillusioned soon after employment. For such an employer, it later becomes evident that the employee does not have the ability to perform the duties to the required standard. Some employees only require extra training and guidance in order to achieve the set standard, but unfortunately other employees will not be able to achieve the standard despite proper training and guidance provided.

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  • Ill Health Incapacity

    In the previous article’s focus was placed on dismissal for misconduct and more specifically the procedural and substantive fairness required for such dismissals.

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  • Substantive And Procedural Fairness

    It is likely that every employer is required to take disciplinary action against an employee, at least at some stage. Such disciplinary action might lead to the termination of the employee’s service. It remains imperative to comply with the provisions as set out in the Labour relation Act to ensure that the dismissal is fair. In the previous article the requirements for a fair dismissal were briefly discussed, namely that it is to be effected in accordance with a fair procedure and for a fair reason.

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  • Repudiation and Dismissal

    A common phenomenon in certain industries is that employers rely upon submissions and allegations made by employees in settlement negotiations or other discussions during their employment to allege that such employees repudiated their employment agreements. In practice, such repudiation is accepted with the aim of lawfully cancelling the employment agreement on a basis which suits the employer. This trite contractual remedy may not necessarily apply as a rule.

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  • THINKING OF SEQUESTRATION – HERE ARE THE CONSEQUENCES

     

    The sequestration of the estate of an insolvent is dealt with in terms of the provisions of the Insolvency Act 24 of 1936 (herein after referred to as “the Act”).

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  • GET LICENSED TO LISTEN – copyright in music

     

    Although most of us are aware of the fact that much of the audio we listen to is protected by copyright, do we really know what this entails? This article will focus mainly on how music, and more specifically sound recordings, is protected in the work place.

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  • POPI IN PRACTICE

     


    Statutory Framework

    The Protection of Personal Information Act 4 of 2013 (“POPI”) aims to regulate the collection and processing of “Personal Information” in South Africa. The Act was signed by the President and we now await the announcement of the commencement date. There has been some talks on POPI especially what the impact on certain businesses will be. The following should shed some light on the topic.

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  • MEDIATION – WHY IT IS A GOOD CHOICE

     

    Litigation between parties can be a very time consuming and expensive exercise. It often happens, especially in the High Courts that parties have to wait a long time before their matter is finally heard and resolved. Parties also often have to deal with various variables, out of their control, before obtaining the required relief. This is where mediation can be a quicker and more cost effective solution.

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  • THE IMPACT OF BUSINESS RESCUE PROCEEDINGS ON SURETIES

     


    INTRODUCTION:

    Chapter 6 of the Companies Act 71 of 2008 (as amended) (“the Act”) is one of the major themes in which a system for corporate rescue is created for the purpose to provide efficient rescue and recovery of financially distressed companies in a manner that balances the rights and interests of all relevant stakeholders.

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  • A PRACTICAL APPROACH TO THE IN DUPLUM RULE

     

    The common law position regarding the maximum interest on outstanding amounts has been extended in the National Credit Act (section 103). Where a debt is owed and interest is charged on overdue amounts, the amount of such interest on overdue payments may not exceed the amount equal to the capital debt (in duplum). The in duplum rule has three applicable stages; pre-litigation phase, litigation phase and judgment phase.

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  • Fraud and corruption in the workplace

     

    Statutory Framework

    After 1990, international conventions caused member countries to adopt and enforce laws aimed at preventing and combating fraud and corruption. In South Africa, the Prevention of Organised Crime Act, Act 121 of 1998 (POCA) was promulgated. Further pieces of legislation soon followed, deploying elements of the originating legislation in specific application, such as the Prevention and Combating of Corrupt Activities Act, Act12 of 2004 (PCCAA).

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  • Does an employee have a right to privacy in a work environment?

     

    Computers and networking equipment usually belong to the employer and the employer is generally entitled to monitor the work computer. This will include the searching for files saved on the computer hardware, as well as monitoring of an employee’s activities while using the computer (e.g. browsing the internet). In Moonsamy v The Mailhouse (1999) 20 ILJ 464 (CCMA) at 471G it was held that:

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  • Comparison between a NPC and a Trust

     

    We confirm the instruction to provide information and advice with regard to the use of a Non-Profit Company (NPC) (previously known as a section 21 company) as opposed to the use of a Trust to promote the education of pastors and reverends in certain identified areas.

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  • INCIDENTAL CREDIT AGREEMENTS EXPLAINED

     

    Do you perhaps render accounts to consumers stipulating a date for payment, where after a fee, charge or interest will be payable? Or do you sometimes offer a lower price, should the consumer pay on or before a specified date, where after the consumer will have to pay a higher price? If so, you might wish to follow this discussion with some interest, if you will pardon the pun.

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  • Serious businessmen and their contracts

     

    When contracting with another party, more often than not it constitutes a start to a new business relationship. Business owners need to put the pen to paper and trust that not only will this contract govern and regulate the relationship between them, but also mitigate the damages in the event that one party does not keep to the promises made to secure the services of the other or payment of great amounts of money on the other hand.

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  • Is your lease agreement enforceable?

     

    Are you leasing or are you an owner that rents out a property? Does your lease agreement classify as a long term lease?

    A lease agreement can be defined as long term lease agreement if it extends for a minimum period of ten years, or if the lease agreement has been concluded for an undetermined period and has a right of renewal upon the choice of the lessee for periods that’s make out a period of at least ten years.

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  • The Consumer Protection Act section 36

     

    PROMOTIONAL OFFERINGS AND THE CPA

    The Consumer Protection Act, No 68 of 2008 (herein after referred to as the “CPA”) has compelled owners to rethink the way they conduct their business.

    The ease with which the public can be accessed through the use of social media makes the use of promotional competitions an attractive avenue from where companies can market their business and promote their products and services.

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  • Business entity basics for the Entrepreneur

     

    The registration of a new business entity comes with structural, legal and other consequences. Also when acquiring an existing business, it may be prudent to reconsider the type of entity being deployed. This editorial seeks to highlight the basic differences between the available options and to provide a brief summary of the main characteristics of each.

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  • Changes To The Use Of Business Names

     

    With the rigid environment surrounding businesses in South Africa such as the registration of a separate VAT, UIF and PAYE number for each separate registered entity, owners would much rather opt to use one registered entity where under various businesses are conducted. Currently there is no legislation that prohibits the conducting of numerous businesses with different names under the flag of one registered entity.

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  • Entrepreneurs and SMME’s take your business to the next level

     

    Working with the right firm of attorneys can save you time and money in the long run.

    "I do not pay my lawyers to tell me what I cannot do, but to tell me how to do what I want to do." J. P. Morgan.

    Attorneys don’t always stand in front of their clients but rather behind them, in the role of advisors and if necessary enforcers.

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  • Directors’ personal liability and the Companies Act, No. 71 of 2008

     

    The Companies Act, No. 71 of 2008 (“the Act”) commenced on 1 May 2011 and introduced a number of strenuous provisions that directors may be blissfully unaware of. One such provision is the extended director’s liability. Directors may unknowingly find themselves in a situation where the separated personality of the company does not offer them the protection against personal liability as intended with the incorporation of the entity.

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  • Maintenance: Some very important aspects

     

    Due to an increasing number of enquiries from our clients relating to the subject, this issue’s article is dedicated to maintenance. This is not the type of maintenance relating to vehicles, but rather maintenance by parents of their minor children and is also referred to as “support” or “alimony”. In our law there is also a duty on children to maintain their parents, we, however, limit the ambit of this article to the duty of parents to maintain their children.

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  • Exercising your right of retention

     

    You have the right to retain a client’s property if the client fails to settle your account... if you comply with the necessary requirements of course. Clients have requested us to focus on these requirements. In the motor industry, one would mostly deal with the category of retention rights known as the so-called “debtor – creditor” retention rights. These retention rights vest when the owner of property owes money to the retention right holder in terms of a contract i.e. to repair a motor vehicle.

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  • Deadline for all South African companies

     

    List of facts regarding a MOI:

    A company that existed prior to 1 May 2011 must replace their Memoranda and Articles of Association with new Memoranda of Incorporation (“MOI”) before 1 May 2013.

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  • Facelift of the franchise agreement

     

    In the past, the natures of franchise agreements were determined only by the contents thereof and the franchisees’ and franchisors’ fates were in the hands of the author of the particular agreement. In many cases, this led to one-sided agreements where the franchisor was given the opportunity to terminate the agreement if everything did not correlate with the franchisor’s expectations and the franchisee had no opportunity of terminating without becoming liable for direct- or consequential damages, often in substantial amounts.

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  • Lawful ownership and the defence of Estoppel

     

    Dealership A purchases a vehicle from another dealership, B, who in turn creates the impression that he is the lawful owner of the vehicle as he has a mandate to sell the vehicle on behalf of person C. In that regard dealership B represents person C as his agent. Dealership A takes delivery of the vehicle as payment for money owing to it by dealership B and never settles with person C. Upon realising that dealership B had delivered the vehicle to dealership A as payment for its indebtedness, person C requests that seizure of the vehicle be authorised.

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  • Disappearing debtors - How to outsmart runaways

     

    How many times has it happened to you that a customer or client, especially when the customer or client is a juristic person or sole proprietor, has fallen in arrears with an account? Yes, sometimes a mere phone call or an e-mail does the job and the account, or part thereof, is paid, but more often these days it happens that there is just no answer when one phones or reply when one e-mails. Furthermore, when one then visits their premises to take the matter up in person one finds the premises empty and locked. The debtor merely closed shop moved on and left without settling your account. He, she or it simply disappeared..

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  • The effect of the Consumer Protection Act 68, 2008 (“the CPA”) on the Voetstoots-Clauses

     

    The Voetstoots clause is an instrument commonly used by dealers of second hand vehicles. When a purchaser buys a vehicle with the inclusion of a Voetstoots clause the seller cannot be held liable for damages stemming from the purchase, even if such damages result from hidden defects unknown to the seller. The risk that might exist in the sale of a second hand vehicle is easily transferred from a seller to a purchaser without considerable consequences for the seller.

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  • Warranties and the CPA

     

    How does a warranty work? What are your rights as a consumer? You know your rights, how do you enforce them? Gerhard Truter has some answers.

    Warranties on items and services seem designed to confuse consumers, and protect suppliers, often more than seems fair. In this his article, let’s focus on the consumer and supplier relationship, with the applicable remedies available to a consumer where rights, in terms of the section 56 and 61 of the Consumer Protection Act, No. 68 of 2008 (CPA), have been infringed.

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  • Different options available when couples decide on the type of marriage system

     

    It is IMPORTANT to take note that your ante nuptial agreement MUST BE SIGNED BEFORE your wedding!

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  • Verskeie opsies om te oorweeg wanneer daar oor `n huweliksgoedere bedeling besluit word

     

    Gewoonlik is die huweliksgoederebedeling die laaste aspek waaroor `n egpaar dink wanneer `n troue beplan word. `n Huweliksvoorwaardekontrak moet geteken en verly word voor die huwelik voltrek word, maar mag geregistreer word binne drie maande nadat die huwelik voltrek is. Daar is verskeie opsies wat oorweeg moet word wanneer daar oor `n huweliksgoederebedeling besluit word:

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  • Wills and testaments

     

    There are certain formalities which a will and testament must comply with for it to be valid. To avoid unnecessary headaches we would advise an individual to consult an expert to assist with their personal will and testament.

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  • Testamente

     

    Daar is bepaalde vereistes waaraan `n testament moet voldoen om geldig te wees. Om enige kopsere in verband met testamente te verhoed stel ons voor dat u met `n prokureur skakel om u opsies te bespreek.

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  • Directors Beware

     

    Section 4 of the Companies Act, No 71 of 2008 (“the Act”) outlines the solvency and liquidity test that should be applied by directors before expenses are incurred or profits are distributed.

    How to apply the solvency and liquidity test? A company must consider all reasonably foreseeable financial circumstances to determine whether the aggregate of the assets of the company, fairly valued, equals or exceed the liabilities of the company, as fairly valued, at a particular time. If it appears that the company will be able to pay its debts as they become due in the ordinary course of business for a period of 12 months after the date that the test is applied, the company will pass the test.

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