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The existence of an employment relationship is usually evidenced by an employment contract, which sets out the terms and conditions of such employment relationship. This is encouraged as it makes things easier for the parties to refer thereto, should a need arise in future. However, there are instances where parties are supposedly in an employee-employer relationship, albeit without a contract of employment signed between them. In subsequent disputes, how do adjudication forums deal with such situations?
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Upon the registration of a private company, it assumes its own distinct legal personality, separate from its shareholders who in most cases are its Directors. What this means in simple terms is that the company can now enter into contracts, sue and be sued in its own capacity. The clearest expression of this principle was held in the landmark case of Salomon v Salomon [1897] A.C. 22. However, the Courts have presided over cases whereby the separate legal personality of a company has been abused to commit fraud, dishonesty and improper conduct.
The legal framework for the prosecution of offences in South Africa is provided for in terms of the Constitution of the Republic of South Africa Act 108 of 1996 (Constitution), the National Prosecuting Authority Act 32 of 1998 (NPA Act) and the Criminal Procedure Act 51 of 1977 (CPA). As a creature of statute, the National Prosecuting Authority (NPA) is vested with the authority to institute and prosecute criminal proceedings on behalf of the State.
The duty of trustees is to act as guardians of the Trust assets, and to act in the best interests of the Trust and its beneficiaries. The obligations and duties of trustees are fiduciary in nature as per Section 9 of the Trust Property Control Act 57 of 1988.
People are encouraged to execute valid Wills in their lifetime, to make the administration of deceased estates much easier. A will provides for directions on how one prefers their late estate to be administered, thereby preventing disputes amongst the beneficiaries. Most of us have seen contests before the Courts to challenge the validity of Wills, to seek the removal of an Executor or to oppose the competency of an heir to inherit. It is important to execute valid Wills to avoid such instances.
A determination on whether a marriage is valid or not usually becomes key during succession, insurance claiming or divorce proceedings. Not that outside these processes such a determination is unimportant, but that parties have less reason to query such. As an example, where a person dies intestate (without a valid Will) it becomes critical to determine if the deceased was party to a valid marriage or not. In this article, we will discuss the differences between void and voidable marriages, as most people are not familiar with what the difference between the two is.
Suretyship agreements are a commercial necessity in befitting circumstances. Credit providers usually require security/guarantee on their credit facilities, especially on unsecured debt. It is not only on credit facilities where guarantees are required, sometimes parties undertaking business projects require suretyship agreements to secure the timeous completion of their projects. However, the approach taken in this article will assume that the surety agreement is one attendant to a credit facility.
The concept of vicarious liability is an established principle in our law, it is important for parties engaged in litigation where vicarious liability is pleaded to be wary of what must be proven, or the defences that may be available. In this article we discuss the principles around vicarious liability from a litigation perspective.
Notwithstanding the fact that an Executor of a deceased estate acts as per the authority of the Master of the High Court, to superintend over the administration of the deceased estate, it is not without restrictions. Executors have a wide discretion in this process but that their actions and decisions must be within what is permissible at law and as per the Master’s directives.
The Directors of a company and Trustees of a Trust owe a fiduciary duty towards the company or trust. It is required that they perform their responsibilities and duties with care, skill, in good faith and with diligence. Where it is found that a director or Trustee was grossly negligent or utterly reckless in the discharge of their duties, they may be removed from such capacity and in some circumstances personal liability may be attributed to them either by the company or beneficiaries of the trust.
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