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THE BOND CLAUSE THAT SANK THE SALE
In a recent High Court case, a purchaser had to secure the balance of the purchase price by lodging "undertakings acceptable to the sellers' conveyancer".
When, by due date, all the purchaser had come up with was a bank letter of "bond approval", the seller put the purchaser to terms and in due course cancelled the sale.
The Court, holding that "there is a marked difference between obtaining bond approval and delivering undertakings acceptable to the seller's conveyancer", upheld the cancellation.
There are many possible ways to word a bond clause - there may be reference to the provision of a guarantee or of an undertaking, to "pre-approval of a bond", to "approval in principle of a bond", "obtaining a bond in principle" and many other permutations. All have different legal effects, and create different rights and obligations that may be critical to protecting your interests.
So make sure that the wording in the bond clause is checked professionally before you sign the agreement - the risk of not doing so isn't worth it.
NOTE: Find the judgment in W Reitz v K D Strom & Another, CPD Case no. 3280/2007 at the University of Stellenbosch Faculty of Law website.
WHEN STRIKES TURN VIOLENT - ARE YOU INSURED?
Strikes shouldn't involve violence and destruction of property, but the reality is that they often do. Losses can be substantial, and the danger is that standard insurance will not cover you for losses due to riot, strike, public disorder etc.
For that you need SASRIA ("Special Risks") cover. With strike action a constant threat in our daily lives, it makes sense to have it for all assets, personal as well as business.
Good news for victims of such violence is that the High Court has now made it clear that SASRIA cover is not limited to cases of full-scale public disorder. It extends, the Court held, to damage caused in furtherance of a strike, even where the relevant action was not committed in public (that is, not "as part of a disturbance of the public peace").
In the case in question, a truck worth R600.000 was torched by strikers, in an act intended to further the strike, but not as part of a public disturbance. The Court held the cover to be valid, and the insurer had to pay.
NOTE: Judgment in the matter of Slabbert Burger Transport (Pty) Ltd v SASRIA Limited (05/29858) [2007] ZAGPHC 6 (WLD Case No. 05/29858) is on the Southern African Legal Information Institute website.
SHAREHOLDER REMEDIES AGAINST DELINQUENT DIRECTORS
Company directors by definition control what companies do. So, when directors (or other company officers) go bad, how can they be compelled to compensate the company for a wrong committed by them?
Ultimately the biggest losers are likely to be the shareholders, and the law accordingly provides them with a remedy in the form of the appointment, on application to Court, of a curator. The curator's job is to investigate possible claims by the company against directors and other officers, and if necessary to institute legal proceedings as directed by the Court.
Be careful however, if you are a shareholder seeking the appointment of a curator, that your application is worded so as to give the curator a sufficiently wide mandate to do the job properly. In a recent case, a curator was held by the Supreme Court of Appeal to have exceeded his mandate, and the provisional curatorship order was accordingly discharged.
NOTE: Access the judgment in Ghersi v Tiber Developments (Pty) Ltd [2007] SCA 43 (RSA) at the University of the Free State website.
WAITERS' WAGES - THE REAL RATES
Waiters and other employees in the "Hospitality Sector" (the wide definition includes for example hotels, game lodges, guest houses, B&Bs, restaurants, pubs, caterers, related activities etc, etc….) will, from 1 July this year, have regulated minimum wages, working hours and basic conditions of employment.
Press reports as to what minimum wages apply have largely been inaccurate; in fact the only two categories are: - - Workers in establishments that employ less than 10 employees - R1,480.00 per month, R341.60 per week or R7.59 an hour, and
- For those in establishments employing more than 10 employees -R1,650.00 per month, R380.80 per week or R8.46 an hour.
Note that the minimum wages exclude tips.
Commission workers are included in the protection and must earn at least the minimum wage.
NOTE: See the Department of Labour website media report and the link to Sectoral Determination 14 - Hospitality.pdf
SHORT LEASES: STAMP DUTY ABOLISHED
SARS has announced that no stamp duty will be payable on short leases (residential and commercial) entered into on or after 1 June 2007, provided that the lease is for a period of 5 years or less (inclusive of renewal periods). At date of writing, the necessary amendment to the Stamp Duties Act has not yet been promulgated, so the date or details may change - take advice on the final outcome.
NOTE: The Bill providing for this change (the draft Taxation Laws Amendment Bill, 2007 available on the SARS website) still refers to 1 April 2007 as the commencement date but SARS Head Office advises telephonically that commencement has been changed to 1 June 2007.
The Stamp Duties Handbook (not yet changed to show this new development) is available on the SARS website.
FALSE ACCUSATION OF RACISM IS GROUNDS FOR DISMISSAL
Not only is it a serious form of misconduct to display racist attitudes towards a colleague, but, the Labour Court has now held, on the other side of the coin it is also a serious form of misconduct to accuse a colleague of racism "without reasonable cause".
The Court accordingly upheld the dismissal of an employee for falsely accusing a colleague of being a racist. The accusation was a contravention of a workplace code of conduct prohibiting "insulting, abusive, obscene or racial language, communication or behaviour"; so check your employment contracts and codes of conduct for conformity.
NOTE: The judgment in SACWU & another v NCP Chlorchem (Pty) Ltd & others, Case no. J 1399 / 05, is available to LexisNexis subscribers as [2007] JOL 19526 (LC).
NO SQUATTING ALLOWED (NOT, AT LEAST, ON THE TRADE MARK REGISTER)
The best way to protect your interest in a trade mark (that is, a brand name, slogan, logo or shape that identifies the services or goods of one person and distinguishes them from the goods and services of another) is to have it registered in the Register of Trade Marks.
A recent decision of the Supreme Court of Appeal, in which registration of shoe tread designs was extinguished, highlights two restrictions on what you can register, and when: -- You cannot register a trademark purely to stifle competition - in other words you can't "squat on the trade mark register", and
- A shape or design must be more than just functional or aesthetic, it must actually distinguish your product from others; it must "indicate source of origin".
NOTE: Access the judgment in Lubbe NO v Millennium Style [2007] SCA 10 (RSA) at the University of the Free State website.
See the CIPRO website for general information (in the "Trademarks" section under "Our Products and Services").
WHEN A R1 THEFT JUSTIFIES DISMISSAL
The Labour Court has confirmed that "it is an established labour law principle that the value of unauthorised stock appropriation is irrelevant, and dismissal is the correct sanction". The Court accordingly upheld the dismissal of a supermarket employee, despite the fact that in the case in question, only R1 worth of meat bones was involved.
Bearing that in mind, you should still have your Code/s of Conduct and disciplinary procedures checked to ensure that any dishonesty can be dealt with quickly and effectively.
NOTE: The judgment in Shoprite Checkers (Pty) Ltd v CCMA & others, Case no. JR 1046 / 02, is available to LexisNexis subscribers as [2007] JOL 17267 (LC).
WEBSITE OF THE MONTH: VIDEO CLIPS FOR BUSINESSES
Video clips can turn an average PowerPoint presentation into an exceptional one. They will enliven a staff training session, and could even lead you to that breakthrough you've been looking for in your own strategising.
And whilst video sharing sites like YouTube (www.youtube.com) are probably best known for their recreational content, they can also be a goldmine of (mostly short) video clips on a whole host of business-related topics.
Try using search terms like "business advice", "marketing", "cash flow", "interview skills", "business planning", "small business", "HR Training" etc to get an idea of what's available.
Beware of potential copyright issues before downloading and using clips in presentations, marketing messages etc. Note also that to download from these sites, you will need special downloading software (Google for a suitable source).
Till Next Month.
Note: Copyright in this publication and its contents vests in LawDotNews(law.news)
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