Hinrichsen Attorneys

Applicable Legislation: The Companies Act 71 of 2008 -  Sections 66 – 78 1. Definitions The Companies Act 71 of 2008 (“Act”) defines a director as a -  “member of the board of a company, as contemplated in section 66, or an alternate director of a company and includes any person occupying the position of a director or alternate director, by whatever name designated.” According to sec 66 (1) -  “The business and affairs of a company must be managed by or under the direction of its board, which has the authority to exercise all of the powers and perform any of the functions of the company, except to the extent that this Act or the company’s Memorandum of Incorporation provides otherwise.” In addition to the above definitions, a director includes an ex officio director or a prescribed officer. An ex officio director means - “a person who holds office as a director of a particular company solely as a consequence of that person holding some other o...

  A Shareholders’ Agreement is, simply put, an agreement between the shareholders of a company. This agreement is an invaluable resource for any business as it structures the relationship between the shareholders and provides the foundation for how they will interact with each other. A Shareholders’ Agreement is drafted in order to protect the interests and investments of all shareholders within the company. It further sets out the duties and rights of the shareholders and regulates the process surrounding the sale of shares by one or more of the company’s shareholders. Furthermore, unlike the Memorandum of Incorporation (“MOI”), it is a confidential agreement not filed in public office.

Emoticons or “emojis” are typically seen as playful additions to an our daily messages, but their exponentially increasing popularity has seen them included in everything from work emails to family chats, utilising emojis in your text messages has quickly developed serious consequences and many users remain ignorant to the seriousness of an otherwise playful emoticon. This has resulted in numerous American court cases where emojis have been submitted as evidence in a trial, and these types of cases will quickly reach South African shores where many contracts are seen to be concluded with a symbolic thumbs-up. While there has yet to be an emoji related case in South Africa, it is logical to draw an inference that the same principles would likely apply should our courts be asked to make such a decision.

Employers are often confronted with their employees’ lacking performance and uncertainty often arises regarding the proper way of addressing such situations. This in turn results in employees not being afforded an opportunity to bring their performance up to the required standard and employers finding themselves on the wrong side of a labour dispute. There is a vast difference in the procedure for dealing with misconduct versus that of poor performance. 

A Last Will and Testament, or simple a will, is a legal document that directs to whom your property will pass to when you die.  A trust is also a legal document created during life or as part of your Will, whereby an individual transfers ownership of property to a trust which is managed by an individual or fiduciary for the benefit of another individual. The document specifies the purpose of the trust along with the terms and conditions by which the assets are to be managed and ultimately distributed to the beneficiaries. The legal requirements for drafting a Will or a Trust are relatively simple yet one mistake can potentially invalidate the Will or Trust entirely. 

There is already a common understanding that in circumstances where an employee is found to have acted negligently, or has caused damage or harm in some way, it is often likely that such an employee’s employer will often be held vicarious liable for the employee’s actions.

In South Africa, various Marital Property Regimes exist, commonly summarised as a marriage in community of property and marriage out of community of property, which is subdivided into out of community of property with the application of the accrual system and, out of community of property without the application of the accrual system.  In South Africa the automatic matrimonial property regime is the marriage in community of property, unless such is excluded by means of entering into an antenuptial contract, prior to the marriage being concluded. It is unfortunately common that couples entering into a marriage do not consult an attorney or neglect carefully considering which regime is best suited for their specific needs.