Tips for Drawing Up a Watertight Partnership Agreement

For many businesses, setting up a beneficial partnership agreement with another business is not only a good idea, but an essential one. They can, however, be complicated to set up, since they offer plenty of opportunities for mistakes. These mistakes could end a partnership before it even begins, could become costly for all involved parties,… Continue Reading

The Most Common Types of Disputes in Commercial Litigation

  Business partnerships, while being the lifeblood of capitalism, don’t always go as smoothly as we like. Each party that enters into a partnership agreement, while working towards a mutually beneficial relationship, also has its own interests to protect. When these interests come into conflict with one another, complicated disputes often arise. When this happens,… Continue Reading

What is a Patent & What can be Patented?

  What is a Patent? A patent is a legislative right granted by the government that allows the inventor the legal right to preclude others from making, using, exercising, importing and selling the invention for a fixed period of time. Essentially, it is a contract between the government and the inventor: in exchange for full… Continue Reading

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… Continue Reading

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”.     Do unmarried father’s have rights pertaining to their minor children? Prior to the commencement of the Children’s Act (38 of 2005), unmarried fathers did… Continue Reading

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… Continue Reading

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… Continue Reading

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… Continue Reading

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.   The current value of these medial aid tax credited are said to be in the region of R20 billion. According to Econex, in… Continue Reading

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… Continue Reading

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… Continue Reading

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.   Share buy-backs entail the repurchasing of shares by the company that issued them. Essentially, a buy-back occurs when the issuing… Continue Reading

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… Continue Reading

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… Continue Reading

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… Continue Reading

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… Continue Reading

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… Continue Reading

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… Continue Reading

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… Continue Reading

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. In order… Continue Reading

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… Continue Reading

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”). Section 198A (3) states: (3) For the purposes of this Act, an employee – performing a temporary service as… Continue Reading

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. The frustration faced with when not receiving a set down (which refers to the official… Continue Reading

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. The reason why these amendments were introduced is to ensure that vulnerable employees are no longer exploited. Its further aim is to… Continue Reading

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. Section 186 (1) (e) of the Labour Relations Act states that… Continue Reading

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… Continue Reading

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. This article will highlight the aspects surrounding termination of employment based on ill health and injury. It is not unusual for an Employer to be required to deal with an employee who… Continue Reading

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.… Continue Reading

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… Continue Reading

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”). The main purpose of sequestration is for the orderly and equitable distribution of the proceeds of the debtor’s assets where all of his creditors cannot… Continue Reading

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. Copyright is regulated by the Copyright Act 98… Continue Reading

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… Continue Reading

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… Continue Reading

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.… Continue Reading

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… Continue Reading

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… Continue Reading

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… Continue Reading

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.   To determine which structure should be used to… Continue Reading

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… Continue Reading

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… Continue Reading

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… Continue Reading

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… Continue Reading

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… Continue Reading

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… Continue Reading

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… Continue Reading

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 –… Continue Reading

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… Continue Reading

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. Sanctions for non-compliance include but are not limited to: The Companies Act (No. 71 of 2008) (“the Act”) will override the Memoranda… Continue Reading

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… Continue Reading

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… Continue Reading

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… Continue Reading

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… Continue Reading

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. Complete your will on your own. Send us an email to info@barnardinc.co.za where after we will forward you a… Continue Reading

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. Voltooi self u testament. Stuur `n e-pos na info@barnardinc.co.za waarna `n vraelys aan u gestuur sal word om voltooi te word.… Continue Reading

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… Continue Reading

Uncontested Divorce

WHY SETTLEMENT IS THE BETTER OPTION Where settlement is reached sooner, rather than later, the parties not only save unnecessary legal costs, but have a better chance of maintaining a workable relationship after divorce. This is especially important where minor children are involved as the parties must be able to communicate with each other after the… Continue Reading

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… Continue Reading

Mediation – Why is it 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… Continue Reading

Conveyancing Sample Agreements

KOOPKONTRAK – KONSEP OOREENKOMS Ek/Ons, die ondergetekende/s: ____________________________________________ Identiteitsnommer: _____________________________ En: ___________________________________________ Identiteitsnommer: _____________________________ Getroud binne/buite gemeenskap van goedere / ongetroud   (VERKOPER/S) en Ek/Ons, die ondergetekende/s: ____________________________________________ Identiteitsnommer: _____________________________ En ___________________________________________ Identiteitsnommer: _____________________________ Getroud binne/buite gemeenskap van goedere / ongetroud   (KOPER/S) 1. ERF BESKRYWING • Verband lening tans by: ________________________________________________ • Verband lening… Continue Reading

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.   To determine which structure should be used to… Continue Reading

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