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Monday 08:00 - 16:30 Tuesday 08:00 - 16:30 Wednesday 08:00 - 16:30 Thursday 08:00 - 16:30 Friday 08:00 - 15:00

Chadinha Attorneys

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Chadinha Attorneys

We specialize in Family Law, Estate Planning, Wills and Deceased Estates, Commercial Law and Civil L

14/05/2023

Wishing all the Ladies who we have the honor and privilege of calling Mom! Happy Mother's Day!

09/08/2022

Happy Women's Day! May we know them. May we raise them. May we be them.

19/05/2022

Whether starting a new company or buying into an established business enterprise, a Shareholder’s Agreement is arguably one of the most important commercial contracts to consider.

Do not fall into the trap of considering standard or basic agreements as this could have dire consequences should there be a dispute in future or there’s a lack of governance within the business enterprise. A Shareholder’s Agreement should be considered as an investment; tailor-made to your specific business concept or model and needs.

What is a Shareholder’s Agreement?

It is an agreement between the company and its shareholders. Not only does it provide the rights and obligations of the shareholders but also contains provisions of company governance.

What should be included in the Shareholder’s Agreement?

Although there are numerous provisions that should be included in this contract, we shall briefly highlight some important provisions:

Company Shares
The Shareholder’s Agreement should distinguish what type of shares are issued and allotted to each shareholder. If a shareholder wishes to sell his/her shares, the agreement will cover the process by which they can be sold and how to approve a buyer.

Voting Rights
Running a company encompasses regular decision making. These provisions will outline the decisions that are made and by whom, i.e. directors, shareholders or both. Two types of resolutions can be made: general and special resolutions.

Meetings
The Shareholder’s Agreement prescribes the frequency of meetings and how they should be called.

How Shareholder’s disputes are resolved
Guidelines should be contained in the agreement to assist with resolving disputes between different stakeholders and should cover the procedure to follow.

Contact us today to assist with drafting your Shareholder’s Agreement by visiting our website at www.chadinhaattorneys.co.za.

13/05/2022

A new era for the Divorce Act 70 of 1979?

On 11 May 2022, the North Gauteng High Court, Pretoria ruled that section 7(3)(a) of the Divorce Act 70 of 1979 (“the Divorce Act”) is unconstitutional and invalid in that it unfairly discriminates against those marriages which are entered into out of community of property after the commencement of the Matrimonial Property Act on 1 November 1984.

Currently, parties can elect to enter into an antenuptial contract which either includes the accrual system or expressly excludes it. The consequence of the former marriage regime is that the spouses, on dissolution of the marriage, can equally share in the growth of the assets that were acquired throughout the subsistence of the marriage. In contrast, should spouses marry with the express exclusion of the accrual system, there is no sharing of assets.

Section 7(3) of the Divorce Act deals with the division of spouses’ assets at date of divorce for marriages entered into out of community of property prior to 1 November 1984 (i.e. the accrual system does not apply). This section enables a court to make an order to redistribute or transfer assets from one spouse to the other. However, this is not for the taking and the spouse claiming such redistribution will still have to prove various factors in order to be successful.

The consequence of the court’s declaration of inconsistency with our Constitution means that spouses who have entered into a marriage out of community of property with the express exclusion of the accrual system after 1 November 1984 may claim for a redistribution of assets if the court deems it equitable and just to do so.

As the highest Court in our land on all constitutional matters, this order should be confirmed by the Constitutional Court.

12/05/2022

Victory has prevailed! The South Gauteng High Court, Johannesburg has ordered a wealthy husband and father to pay interim maintenance in the region of R70 000.00 per month.

In the recent case of B v B (58944/2021) [2022] ZAGPJHC 273 (3 May 2022), the South Gauteng High Court, Johannesburg had to decide on a Rule 43 application which was instituted by the wife (the applicant). The applicant sought an order for interim maintenance for herself and the minor child, primary residency of the minor child and a contribution towards her legal costs.

The husband and father of the child (the respondent) opposed the relief sought and tendered a meagre R2 000.00 per month for meals.

The evidence contained in the papers demonstrated that the respondent was a wealthy man who owns a farm in Egypt, travels to that country at least once a year, has an impressive property portfolio, earns a salary of R40 000.00 per month from his employer and receives income from various other income streams and often frequents the Casino to gamble. The parties’ lifestyle was anything but that of a life of a pauper.

In Rule 43 proceedings where maintenance is sought, a court must consider the lifestyle of the applicant during the marriage, the reasonable needs of the applicant and the affordability of the respondent ordered to pay such maintenance.

It was evident to the court that the applicant had a need for which the respondent could comfortably afford and was ordered to pay the following maintenance, pendente lite, together with other relief:

1. Spousal maintenance for the applicant in the
amount of R20 000.00 per month
2. Maintenance for the minor child in the
amount of R15 000.00 per month
3. An amount of R9 625.00 per month for
medical aid premiums for the entire family
4. An amount of R7 495.00 per month being
household costs
5. An amount of R15 000.00 for accommodation
costs for the applicant and the minor child
6. The respondent to maintain the applicant’s
motor vehicle
7. An amount of R10 000 as a contribution
towards the applicant’s legal costs

11/05/2022

It is usual practice to notice two spaces on contracts for a witness to sign in addition to the signature of the party to the contract.

A witnesses’ signature is advisable for evidentiary purposes. The purpose of a witnesses’ signature is to confirm that it is indeed the signature of the party to the contract.

Unless the law prescribes that the contract must be signed in the presence of two witnesses, the lack of witness signatures will not nullify or render a contract void. A familiar example where legislation prescribes the signatures of two witnesses is where a testator must sign his/her will in the presence of two or more competent witnesses present at the same time, and such witnesses must attest and sign the will in the presence of the testator and each other – sections 2(1)(a)(ii) & (ii) of the Wills Act 7 of 1953.

10/05/2022

Contracts, within the realm of law of contract, can be defined as an agreement between two or more parties who have the intention of creating a legal obligation or obligations between each other which our law regards as binding between them.

But what are the requirements for a valid legal contract?

For a contract to be recognized as valid and binding in our law, the following requirements must be met:

1. Consensus
The parties must have a “meeting of the minds” on all the material aspects of their agreement.

2. Capacity
Each party must have the capacity to contract, for example, a company would be represented by a duly authorized natural person in a contract.

3. Formalities
The law may prescribe that an agreement must be in a certain form, for example, an oral antenuptial contract is valid between the parties but in order for such contract to have effect against third partes it has to be attested before a notary public and be registered within 3 months after the date of its ex*****on (section 87(1) of the Deeds Registries Act 47 of 1937).

4. Legality
The agreement must be lawful, in other words, it shall not be prohibited by statute or common law.

5. Possibility
The obligations that are stipulated in the agreement must be capable of performance.

6. Certainty
The agreement must have a definite or determinable content.

Considering the technological advancement in the business sphere, it begs the question, can an electronical mail, text message or social media message be regarded as a valid contract?

The simple answer is yes. The Electronic Communications and Transactions Act 25 of 2002 makes this possible. In terms of this legislation, all electronic communications are given the same effect as non-electronic documents. That being said, an electronical mail, text message or social media communication should comply with the above requirements.

08/05/2022

To the world you are a mother, but to your family you are the world - unknown
Happy Mother's Day to all our precious mothers.

04/05/2022

Wait? Was it not 'Monday' yesterday?
Happy Wednesday and May the 4th be with you!
Are you enjoying another short week?

27/04/2022

Today we celebrate 28 years of freedom and democracy in our country.

Happy Freedom Day to every South African!

15/04/2022

Happy Easter to you and your family this weekend.

May it be blessed with an abundance of joy, happiness and new beginnings.

11/04/2022

What is an “Offer to Purchase” or commonly known as an “OTP”?

This is a written contract between a seller and a purchaser which contains all the terms and conditions of the sale and purchase of an immovable property.

Although the contract may contain many various terms, the following general terms are found in the OTP: parties particulars, purchase price, whether a deposit is payable and by when, conditions of the sale and purchase, occupation date, breach clause.

Buying or selling a home can be a stressful exercise. Either party may find themselves having signed an OTP but later may want to walk away from the deal. The seller may have found a better offer, or the purchaser has found a home more suitable for their needs. An OTP is a legally binding contract just like any other and it may not be so simple for the parties to part ways without there being any repercussions.

Are you finding yourself in such a situation?

Address

42 Webb Street, Northmead
Benoni
1623

Opening Hours

Monday	08:00 - 16:30
Tuesday	08:00 - 16:30
Wednesday	08:00 - 16:30
Thursday	08:00 - 16:30
Friday	08:00 - 15:00

Website

http://www.chadinhaattorneys.co.za/

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