Agimore Consultancy Services- Pty Ltd

26/02/2021

Here is the full contract law series that we just did. Drafting and reviewing contracts is one of the main services we offer. Get in touch with us to find out how we can help you

26/02/2021

Over the last month we have covered the definition of a contract, the elements of a valid contract, the common terms in a contract and the remedies of breach.
One of our areas of expertise is drafting and reviewing of contracts in any field. We have a team of experts that has over 5 years’ experience in this area. Our aim in offering this service is to ensure that our clients do not suffer unnecessary losses and are adequately protected.
So before signing your next contract, why don’t you let us make the process painless for you and let us review that contract and if you want to enter into an agreement with someone allow us to do all the heavy lifting for you by drafting the right contract for you.
We operate all throughout South Africa and we offer our clients efficient and timely service in order to ensure that our clients have the best service possible.

26/02/2021

The last remedy we will look is one that you utilize in cases of urgency and when you require an immediate outcome from the courts.

 The final remedy that we will look at is an interdict. This is a very expensive remedy to utilize and one must only use it in extreme and urgent circumstances.
 An interdict, according to Jones & Buckle( Jones & Buckle Civil Practice in the Magistrates Court SA 6ed 71), “is an extraordinary remedy and summary remedy issued where someone needs protection of his or her rights against unlawful interference or the threat of unlawful interference. “Interdicts generally take one of 3 forms: (i) to stop/prevent a person from acting/ taking action (Prohibitory), (ii) to Compel/ force a person to act / take action in a certain way (Mandatory), (iii) to order a person to return property to the applicant (Restitutionary).
 The reason why this remedy is extra ordinary is that it is usually launched in the courts on an urgent basis. Because of this urgency, you are essentially asking everyone (attorneys, advocates, courts, sheriff’s etc.) to allow you to jump the que and have your matter dealt with quicker than it would have.
 The court require the urgency to substantial and not in the Applicants minds. To mitigate the amount of urgent matters brought, the courts tend to impose harsh cost orders if they deem the matter not to be urgent.
 The interdict happens in two parts namely (i) part 1, you ask the court to tell someone to temporarily do something usually for a period of 30 days and (ii) part 2, everyone comes back at the end of 30 days having substantiated their case and provided the court with the requisite evidence. Should the court be satisfied, they will grant the final order.

25/02/2021

What happens when you have suffered some financial loss as a result of the behaviour of a contracting party that is not line with their obligations in terms of the contract.

 A very common remedy for breach contracting parties often utilizes is a damages claim.
 According to https://thelawreviews.co.uk/edition/the-global-damages-review-edition-3/1234424/south-africa #:~:text=Under%20the%20South%20African%20common,hands%20of%20an%20innocent%20party.&text=Under%20the%20South%20African%20law,specific%20performance%20of%20the%20contract, “claims for damages are financial claims that are brought to compensate a plaintiff as a result of a loss-causing event that occurred because of the fault of the defendant.”
 This means that to utilize this remedy, you need to have suffered some form of monetary loss that can be quantified through the producing of evidence.

 In the case of Allen v Scheibert (14136/2010) [2015] ZAWCHC 36 (20 March 2015) the court held the following:
o The Plaintiff had bought a house from the Defendant and the sale agreement contained a clause that stated that the Defendant provided a warranty that any improvements to the house had been approved by the necessary authorities.
o The Plaintiff discovered whilst they were planning for renovations that the kitchen in the guest suite was not approved by the municipality and the Plaintiff incurred costs to remove the kitchen in its entirety, get the new plans approved etc.
o The Plaintiff brought various expert witnesses to testify as to the damages suffered and the assist in the quantification of the said damages. The court granted judgment against the Defendant and ordered that he pay the Plaintiff for the damages she suffered.

 It should be noted that if you decide to utilize this remedy, expert witnesses will either make or break your case as they are the ones that will convince the court as to the quantification of the loss suffered.

24/02/2021

What happens if you enter into a contract and the other contracting party fails to perform and you just want to cut your losses. In this case you will be entitled to the remedy of cancellation of the contract due to the breach.

 According to https://www.golegal.co.za/cancelling-a-contract/ #:~:text=If%20the%20contract%20has%20a%20cancellation%20clause%2C%20the%20innocent%20party,breach%20of%20a%20term%20thereto.&text=According%20to%20South%20African%20case,of%20a%20vital%20term%20thereto, for the remedy of cancellation “the innocent party will be able to cancel the contract in the event of a breach of a term thereto. The innocent party must however take care not to cancel the contract incorrectly, otherwise the party in breach may interpret the cancellation as a repudiation of the contract, in which case the party in breach will also have the right to cancel the contract.”
 This means that this remedy is an extraordinary remedy that aims to sever all ties with the other contracting party. This remedy is usually available for a material breach and not just a minor breach. In electing to use this remedy, the party seeking cancellation must ensure that they are “innocent” and that they cancel the contract in the exact manner stipulated in the agreement.

 The case of Grand Aviation (Pty) Ltd v Michael Geoffrey Brey A5043/2015 the following occurred:
o The Appellant was a developer who had sold land and agreed to build a type of dwelling on the said land for the Respondent. The land was transferred to the Respondent and the problem arose when the Respondent requested amendments to the building plans. The Appellant then requested more money which the Respondent refused to agree to.
o The Appellant then claimed that because the Respondent had failed to provide them with the necessary payments/ guarantees, they were entitled to therefore cancel the contract.
o The Respondent then proceeded to launch a claim for specific performance asking for the Appellant to build the house as agreed to.
o The appeal was dismissed as the court held that the cancellation by the Appellant was invalid as a valid agreement had been concluded and they had been previously provided with the guarantees that they required before the amendments were requested by the Respondent. The Respondent was entitled to his request for specific performance.

 As this remedy is an extraordinary one, before using it, one should ensure that they have reconciled themselves with things being left as they are and the only resort left to them may be to claim damages and this may take years to do.

23/02/2021

So maybe specific performance is not the remedy for you. You are of the belief that you have done everything in your power to carry out your obligations, the question arises then as to what is the appropriate remedy to use in this instance.

 Another remedy for breach of contract is found in the Latin maxim “exceptio non adimplenti contractus”.
 According to O'Neill, Philip; Salam, Nawaf, Is the Exceptio Non Adimpleti Contractus Part of the New Lex Mercatoria, in: Gaillard (ed.), Transnational Rules in International Commercial Arbitration (ICC Publ Nr. 480,4), Paris 1993, at 147 et seq, exceptio non adimplenti contractus “is considered to be a right entitling a party to a reciprocal contract to refuse to carry out his obligations as long as his co-contractor has not performed his own or offered to do so. The Exceptio is based on the idea that mutual obligations are dependent on each other and must, therefore, be carried out at one and the same time”.
 This is a remedy that is exercised when one party cannot carry out their obligations in terms of the contract until the other party has carried out their own obligations. The most common example of this is contracts that require payment to be made in order for the other party to then render a service or provide goods.

 In the case of Smith v Van den Heever (136/10) [2011] ZASCA 5 (4 March 2011), the court held the following:
o The Appellant got into an agreement with Agrichicks to which they would supply the Appellant with day old chicks, the food, vaccinations and medicines. Once a 45 day period had lapsed, they would collect the chickens, slaughter them and weigh them.
o The Appellant’s account would be debited with the cost of the chicks and supplies and upon collection and after weighing his account would be credited with any balance over and above the cost of the chicks and supplies. If a loss was suffered, the Appellant would be liable to pay over to Agrichicks.
o Agrichicks came under judicial management a few days after delivery of the chicks and was liquidated by the time the second batch of chicks was delivered. After the commencement of the second cycle, Agrichicks advised that Appellant that they would not be giving him any more feed and he could do with the chicks as he pleased and the Appellant agreed to do so.
o The liquidators then obtained judgment against the Appellant for disposing of the chicks and for the value of the chicks. The Appellant raised this maxim as a defence and stated that Agrichicks failed to honour its obligations first and therefore he was not able to deliver on his obligations.
o The court upheld this defence and the judgment against him was rescinded.

 It is clear from this remedy that before you claim against a contracting party, you need to make sure that “your hands are clean” i.e., you have carried out everything you are obligated to do.

22/02/2021

The first remedy of breach that we will be looking at is specific performance. We are going to look briefly at what this entails and how it applies practically in the contract law arena.

 You have entered into a contract and the other contracting party fails to perform their obligations in terms of contract law. The question arises how do you proceed in the face of this failure to perform.
 The first remedy is “specific performance”. According to https://www.findlaw.com/smallbusiness/business-contracts-forms/what-is-specific-performance-as-a-legal-remedy.html #:~:text=Specific%20performance%20is%20a%20specialized,will%20use%20that%20option%20instead, “Specific performance is a specialized remedy used by courts when no other remedy (such as money) will adequately compensate the other party. If a legal remedy will put the injured party in the position, he or she would have enjoyed had the contract been fully performed, then the court will use that option instead.”
 This is a remedy that one chooses when they still want the terms of the contract to be fulfilled as opposed to cancelling or getting their money back.

 The case of Grand Aviation (Pty) Ltd v Michael Geoffrey Brey A5043/2015 the court held the following:
o The Appellant was a developer who had sold land and agreed to build a type of dwelling on the said to the Respondent. The land was transferred to the Respondent and the problem arose when the Respondent requested amendments to the building plans. The Appellant then requested more money which the Respondent refused to agree to.
o The Appellant then cancelled the contract claiming that they never in fact concluded a valid agreement for the sale of land nor for the building of the land. The Respondent then proceeded to launch a claim for specific performance asking for the Appellant to build the house as agreed to.
o The appeal was dismissed as the court held that a valid agreement had been concluded and therefore the cancellation by the Appellant was not valid and the Respondent was entitled to his request for specific performance.

 It must be noted that in choosing the remedy, one needs to be cautious that in forcing the other contracting parting to fulfil their contractual obligations, you run the risk of sub-standard performance, delayed performance etc.

21/02/2021

During the course of this series, we have covered the definition of a contract, the elements of a valid contract and the common terms found in contract.

Today we begin the final portion of the discussion namely the Remedies for a breach of contract.

According to the Merriam Webster dictionary, remedies are defined as “the legal means to recover a right or to prevent or obtain redress for a wrong”. We are going to be looking at the different ways that a party can get redress for a wrong that has been done to them by the other contracting party.

There are several remedies available in the event of a breach of contract. We will be focusing on (i) specific performance, (ii) exception non adimplenti contractus, (iii)cancellation, (iv) damages and (v) interdict. In choosing which contractual remedy to enforce, you have to consider whether you want the contract to continue or to sever the contractual relationship, whether you want to prevent the party from doing anything further etc.

Once we have looked at these remedies, we will be done with our contract law series.

19/02/2021

What happens when you no longer want to be a participant in a contract. Today our focus will be on the termination clause in a contract.

 There comes a time in every contractual agreement when contracting parties may no longer wish to be bound by the agreement regardless of the reasons.
 According to https://hjlawfirm.com/understanding-contract-termination/ #:~:text=To%20terminate%20a%20contract%20means,fully%20performed%20by%20the%20parties.&text=In%20general%2C%20the%20effect%20of,unperformed%20obligations%20under%20the%20contract,“To terminate a contract means to end the contract prior to it being fully performed by the parties. In other words, prior to the parties performing all of their respective obligations required by the contract, their duty to perform these obligations ceases to exist.”
 This clause in a contract gives the contracting parties instructions on how and when an agreement may be terminated.
 Failure to adhere to the specific terms to terminate the agreement may result in the party seeking termination of the agreement still being bound to their obligations in terms of the agreement.
 For most contracts, they will have a minimum notice period that the party seeking termination needs to notify the other contracting party by before they can stop performing their obligations in terms of the contract.
 The termination clause may also make the termination of the agreement subject to certain conditions other than giving notice being fulfilled.

19/02/2021

This may be the future especially given the new virtual working conditions. However, the questions remains of how this can be implemented in terms of costs for companies that cannot afford or contracting parties who are not tech savy.

Author – Beatrice Moyo With the dawn of corona virus, having parties meet to sign contracts poses potentially serious health risks and resultantly delays in the finalization of transactions. …

19/02/2021

How many of you have come across a job advert for a candidate attorney position stating the following “ABC is looking for a candidate attorney who meets the following requirements (i) LLB degree (ii)valid driver’s licence (iii)own vehicle.”
The predicament that most fresh LLB graduates particularly black graduates find themselves in is a catch 22 scenario. They need a car to get the job but “they need the job to get the car”. As a result, a lot of graduates find themselves without jobs because the entry level requirements discriminate against them.
The Legal Practice Council (LPC) has amended the Legal Practice Act to the effect that it is now misconduct for a Legal Practitioner to, during the recruitment stage, require potential Candidate Attorney’s to have a licence and their own vehicle. The amendment further states that even at the time of signing the Practical Vocational Training Contract, it is misconduct for a Legal Practitioner to request a Candidate Attorney to have a licence and their own vehicle.
This is a welcome amendment however; the amendment fails to address how the LPC is going to deal with and monitor this discriminatory requirement. The next step that the LPC should look at is the salaries for Candidate Attorneys. It is unfathomable that one spends 5 years getting a degree and has to do an additional 2 years of Practical Vocational Training only to earn an average of R3,000.00 – R5,500.00 for the next two years. This amount is not sustainable especially considering the previous position that a car was a requirement.
The hope is that the LPC continues with its objective of transformation and provides for methods for enforcement and monitoring.

You can access the Gazzetted amendment at page 35 fil:///C:/Users/Gamu/Downloads/government-gazette-ZA-vol-667-no-44068-dated-2021-01-15.pdf
The information used for the was obtained from an article published in the Mail & Guardian by Lilleonah Chivenge accessed at https://mg.co.za/opinion/2021-02-04-set-up-to-fail-the-prospective-candidate-attorneys-calamity/

18/02/2021

How do you regulate the steps to take when a contracting party does not do what they ae supposed to do? This is dealt with in the breach clause of a contract.

 Whenever a contracting party fails to do what they said they would do in terms of the agreement by the date that was agreed this is seen as a them failing to perform in terms of the contract or in other words a breach of the contract.
 According to https://www.thebalancesmb.com/breach-of-contract-398138 , “Breach of contract is a legal term that describes the violation of a contract or an agreement that occurs when one party fails to fulfil its promises according to the provisions of the agreement. Sometimes it involves interfering with the ability of another party to fulfil his duties. A contract can be breached in whole or in part.”
 Each contract will have a clause that details the steps that a party should take against another party should they breach the agreement. This can include the manner to address the breach, the time period to remedy the breach and the consequences should the breach not be remedied.
 Should a breach occur and the party upon whom the breach has occurred fails to follow the steps as per the contract, this may be a defense for the breaching party.