Sandi Archary & Co.

16/12/2022

As 2022 draws to a close, we thank our loyal clients for their unstinting support throughout the year.

Our offices will be closing on 22nd December 2022 at 13H00 and will re-open on 9th January 2023.

We wish you and your loved ones safe travels, a Merry Christmas and a Prosperous New Year😊!

31/10/2022

WE HAVE MOVED!

05/02/2022

12/09/2021

27/08/2021

The Living Trust

The Living Trust is formed by a contract (the trust deed) between the estate-owner (founder) and a trustee, in terms of which the founder agrees to deliver to the trustee certain assets and the trustee agrees to hold and to administer such assets in terms of the mandate given to him in the trust deed for the benefit of the beneficiaries of the trust.

The appointment of trustees

The choice of a trustee rests with the founder but a trustee obtains his authority to act under a Letter of Appointment issued by the Master of the High Court. The trust deed would normally provide for circumstances such as the resignation or removal of a trustee and the appointment of alternative or additional trustees.

The trustees’ powers

The trust deed will, inter alia, bestow upon the trustees the power to accept donations and bequests; to borrow money for the purpose of the trust; to lend money on such terms as the trustees deem it; to buy and sell movable or immovable property; to let and hire property.

What is the setting up of a trust likely to cost?

This will depend largely on the method of disposal of the assets to the trust and the nature and value of those assets but the following are the sort of expenses which would normally be encountered:

• Professional fees for consultations, preparation of the trust
deed and registration of the trust;

• Transfer duty and conveyancing charges where immovable
property is acquired by the trust;

• Fees to transfer shares to a trust. Donations tax if assets are
donated to the trust;

• The trustees’ remuneration for administering the trust.

Whatever the purpose in setting up the trust might be, it should not create a situation which unduly restricts the enjoyment which all interested parties could gain from the assets were they not held in trust. Be sure, before creating a trust that you fully understand the consequences. A trust deed can be amended and even terminated should there be changes in legislation and/or in your personal circumstances. We offer a free consultation to fully explain the benefits of a Trust to you.

Call us to arrange an appointment.

30/07/2021

THE ENFORCEMENT OF A RESTRAINT OF TRADE CLAUSE IN 2021

“A restraint of trade agreement means that an employee, after the termination of a contract of employment, is prohibited from performing similar work in competition with his/her former employer within a defined area for a specific period.”

One of the main aims of restraint clauses is to protect the employers’ proprietary interests (such as confidential information, the company’s network of clients, and possible trade secrets) and prevent it from landing in the hands of competitors.

Restraint agreements are very common in South Africa and are prima facie valid and enforceable. In the Magna Alloys & Research SA (Pty) Ltd v Ellis case, it was held that “restraint of trade agreements are valid and enforceable, unless they are contrary to public policy. “

Due to the prevailing situation the Covid-19 pandemic has placed Employees in, the Courts will surely not easily enforce a restraint of trade clause which would restrict a retrenched Employee in these times from an opportunity to be economically active and productive to ensure their and their household’s survival during Covid-19. Surely, an Employer who has retrenched an Employee due to operational requirements as a consequence of the Covid-19 pandemic cannot expect an Employee to adhere to a restraint of trade clause?

Employees who are uncertain as to whether they must abide by a restraint of trade clause in their employment contract subsequent to being retrenched due to the Covid-19 pandemic should still be cautious and seek professional legal advice on their respective restraint of trade clause. Let us assist and/or advise you on the enforceability of your restraint of trade clause.

Please contact our offices for more information and/or assistance.

REFERENCES

1. Are Restraint of Trade Clauses Enforceable during -19?
-Written by Fadia Arnold, Human Resources Manager, Senior Associate, Attorney, Schoeman Law
-www.polity.org.za/article/are-restraint-of-trade-clauses-enforceable-during-covid-19-2020-06-17

2. Andrew Goldberg on LinkedIn – Restraint of Trade

23/07/2021

EVICTIONS AND ADJUSTED LOCKDOWN LEVELS

The third wave of Covid infections together with the civil unrest that we have recently faced has left South Africa in economic ruin, leaving both landlords and tenants questioning their legal rights.

EVICTIONS UNDER ALERT LEVEL 4
Covid-19 regulations currently in place stipulates as follows: “A person may not be evicted from his or her land or home or have his or her place of residence demolished for the duration of the national state of disaster unless a competent court has granted an order authorising the eviction or demolition.”
Whilst landlords may apply for an eviction order, same will be suspended or “stayed” “until after the lapse or termination of the national state of disaster unless the court is of the opinion that it is not just or equitable to suspend or stay the order.”

IF THE LANDLORD DOES NEED TO EVICT A TENANT, (S)HE MUST HAVE REGARD FOR NUMEROUS FACTORS, INCLUDING BUT NOT LIMITED TO THE FOLLOWING:
• The need for everyone to have a place of residence and services to protect their health and the health of others and to avoid unnecessary movement and gathering with other persons and the impact of the disaster on the parties.
• Whether affected persons will have immediate access to an alternative place of residence and basic services.
• Whether adequate measures are in place to protect the health of any
• Other considerations as described in the gazette.

THE EVICTION PROCESS
Although the eviction order may be stayed until after the national state of disaster lapses, you may still apply to the court for an eviction order.
If a tenant is in breach of the lease agreement, you must follow the ordinary steps in the eviction process. You must not physically remove the tenant or their possessions, change the locks, or disconnect water or electricity. Doing so is a criminal offence and you could find yourself in court for the wrong reason! Even if you succeed in securing an eviction order, only the sheriff of the court may evict the tenant.
Rental housing legislation is complex and, particularly in our country’s current situation, rapidly changing. You need to be sure you are in compliance with the law and, more importantly, your tenants are treated fairly, especially in the context of COVID-19. If you are seeking to evict your tenant or you yourself are being evicted, we can assist you. Please contact our offices for assistance.

REFERENCES
1.

As South Africa gets to grips with the third wave and the current conditions in the country, we're all on high alert. Here's what you need to know.