Advocate A R van der Merwe - Trust Account Advocate

18/02/2026

APPOINTMENT OF AN ADMINISTRATOR IN SOUTH AFRICA A practical guide for families when a loved one can no longer manage their affairsWhen a person suffers a stroke, develops dementia, or experiences another condition that affects their mental capacity, families are often left in a difficult position. B...

19/05/2025

🚨 Can your company bring a lawyer to a CCMA arbitration? 🚨

Many employers assume they may always have an attorney at the table, yet the CCMA rules say otherwise. When an arbitration deals with an alleged dismissal for misconduct or incapacity, legal representation is not automatic. A commissioner must first grant permission, either with the consent of all parties or after a formal Rule 31 application.

What must the application cover?
✅ Complexity of the case and evidence
✅ Legal questions that need expert argument
✅ Public interest considerations
✅ Relative ability of each side to present a case

Our approach

We prepare a detailed notice of motion and affidavit, served at least fourteen days before the hearing.

We set out clear facts on each Rule 25 factor to persuade the commissioner.

We attend the arbitration ready to argue the application if needed.

Properly handled, a Rule 31 application levels the playing field and protects your business from costly procedural errors.

Need help securing legal representation at the CCMA? We are ready to guide you through every step.

12/05/2025

⚖️ Landmark Judgment Clarifies Antenuptial Contracts & Accrual Claims — SCA Rules in Manelis v Manelis
📍Court: Supreme Court of Appeal (SCA), Bloemfontein
📅 Date: 9 May 2025
🧑‍⚖️ Coram: Zondi AP, Keightley JA, Coppin JA, Phatshoane AJA, Bloem AJA
📘 Citation: Manelis v Manelis [2025] ZASCA 55
🎯 Outcome: Appeal dismissed; applicant to pay all costs
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🔍 What Was the Case About?
This appeal revolved around the financial fallout of a divorce between Dominique and Constantinos Manelis. Married out of community of property with the accrual system, the key legal dispute focused on the declared value of the husband’s estate at the start of the marriage and whether the wife could challenge that figure to secure a larger financial payout.
The applicant (wife) wanted to:
• Challenge the R68.7 million value her husband declared in their 2009 antenuptial contract (ANC).
• Claim an R18 million accrual based on her calculation that his estate grew during the marriage.
• Force the court to treat the ANC declaration as only prima facie proof, not final.
The husband argued that:
• The declared amount in the ANC is binding unless set aside on recognized legal grounds.
• His estate had actually decreased during the marriage.
• There was therefore no accrual payable.
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🏛️ The Legal Issue: Can You Challenge an Antenuptial Contract Declaration?
The Court had to settle a long-standing legal debate:
Does a declared commencement value in an ANC serve as final proof or merely prima facie proof?
There were conflicting High Court judgments. Some said it was final unless attacked (e.g., via rectification), while others claimed it could be freely challenged using section 6(3) of the Matrimonial Property Act 88 of 1984.
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📚 SCA Ruling: Declaration in ANC Is Final — Unless Legally Attacked
The Supreme Court of Appeal settled the debate:
✅ If a spouse declares a value in an ANC, it is binding and conclusive — unless challenged on common law grounds (fraud, mistake, misrepresentation, duress, rectification, etc.).
✅ Section 6(3) of the Act applies only to situations where no declaration is made, or a separate statement is filed.
❌ You cannot later dispute a declared value simply because you believe it's inaccurate.
As Dominique failed to challenge the ANC on any of the recognized legal bases, the court ruled that she was bound by the agreed R68.7 million, which after inflation adjustments equated to R129 million.
Even her expert conceded that her husband's estate was worth less than R129 million at the time of divorce — meaning there was no accrual.
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💰 The Result:
• ❌ No accrual claim upheld
• 💸 Appeal dismissed
• 👩‍⚖️ Applicant (wife) to pay all costs, including for both counsel and the late filing of the appeal record
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⚖️ Legal Takeaway:
This judgment delivers critical clarity for family lawyers and spouses entering ANC agreements under the accrual system:
💡 Declarations in antenuptial contracts are binding contracts, not flexible estimates.
If you want to challenge it, you must prove fraud, mistake, or seek rectification — you can’t just raise doubts during divorce.
This ruling restores certainty and predictability in ANC-based financial planning and has profound implications for wealth protection, estate planning, and divorce litigation strategy in South Africa.
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19/02/2025

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23/04/2024

FIDIC Contracts Basics

09/08/2023

16/06/2023

IBM is a major software vendor that provides a wide range of enterprise software products to businesses around the world. Software licensing disputes with IBM can be complex and can have serious financial and legal implications for the licensee. In this article, we will discuss IBM software licensing disputes and the rights of the licensee.

IBM software licensing disputes can arise for a variety of reasons. Some common reasons include:

1. Non-compliance with licensing terms: Licensees may be accused of using IBM software in a way that is not authorized under the licensing agreement.

2. Overuse of licensed software: Licensees may be accused of using more copies of IBM software than they are licensed for.

3. Failure to pay for licensed software: Licensees may be accused of failing to pay for IBM software that they are using.

When a dispute arises, it is important for the licensee to understand their rights. The licensee has the right to:

1. Receive a detailed explanation of the alleged violation: IBM must provide the licensee with a detailed explanation of the alleged violation and how it violates the licensing agreement.

2. Negotiate a settlement: The licensee has the right to negotiate a settlement with IBM to resolve the dispute.

3. Request an audit: The licensee has the right to request an audit of their software usage to verify that they are in compliance with the licensing agreement.

4. Dispute the allegation: The licensee has the right to dispute the allegation and defend themselves against the accusation.

It is important for licensees to understand their rights and to seek legal advice if they are involved in a software licensing dispute with IBM. An experienced Legal Practitioner can help the licensee understand their legal options and negotiate a favorable settlement.

In addition to understanding their rights, licensees should also take steps to prevent software licensing disputes with IBM. This includes:

1. Keeping accurate records of software usage: Licensees should keep accurate records of their software usage to ensure that they are in compliance with the licensing agreement.

2. Conducting regular software audits: Licensees should conduct regular software audits to ensure that they are using the correct number of licensed copies of IBM software.

3. Educating employees on software licensing: Licensees should educate their employees on IBM software licensing terms to prevent accidental violations.

In conclusion, IBM software licensing disputes can be complex and have serious financial and legal implications for the licensee. Licensees have the right to receive a detailed explanation of the alleged violation, negotiate a settlement, request an audit, and dispute the allegation. It is important for licensees to understand their rights and seek legal advice if they are involved in a software licensing dispute with IBM. Additionally, licensees should take steps to prevent software licensing disputes by keeping accurate records, conducting regular audits, and educating employees on software licensing terms.

16/06/2023

Wrongful arrest is a serious violation of an individual’s rights and a breach of the criminal justice system in South Africa. It is defined as an arrest or detention that is carried out without any legal justification or in a manner that is not in accordance with the law. Wrongful arrest can lead to significant harm to the individual who is wrongfully arrested, including damage to their reputation, loss of income, and physical and emotional harm.

In South Africa, a wrongful arrest occurs when a person is arrested without a warrant, or when the arrest is made under circumstances that do not justify it. The Constitution of South Africa guarantees the right to freedom and security of the person, and any arrest or detention must be carried out in accordance with the law. This means that an arrest can only be made when there are reasonable grounds to suspect that the person has committed an offense, or when there is a warrant for their arrest.

Wrongful arrest can be the result of a number of factors, including:

1. Racial profiling: where a person is arrested solely based on their race or ethnicity, rather than on any evidence of wrongdoing.

2. Police misconduct: where the police act outside their powers, without a warrant, or without sufficient evidence to justify an arrest.

3. Mistaken identity: where a person is arrested because they are mistaken for someone else who has committed an offense.

4. Malicious prosecution: where a person is arrested and charged with an offense, despite there being no evidence to support the charge.

If a person is wrongfully arrested, they have the right to challenge the arrest and seek compensation for any harm they have suffered. They can do this by filing a civil lawsuit against the police or other law enforcement agencies involved in the arrest. The lawsuit can seek damages for the harm caused by the wrongful arrest, such as loss of income, medical expenses, and emotional distress.

In addition to civil remedies, the South African criminal justice system provides for criminal sanctions against police officers who wrongfully arrest individuals. The Criminal Procedure Act makes it an offense for a police officer to arrest someone without a warrant or without reasonable suspicion that the person has committed an offense. Officers who are found guilty of this offense can be fined or imprisoned.

In conclusion, wrongful arrest is a serious violation of an individual’s rights and a breach of the criminal justice system in South Africa. It can have significant consequences for the person who is wrongfully arrested, including damage to their reputation, loss of income, and physical and emotional harm. The South African legal system provides for civil and criminal remedies for wrongful arrest, and it is important for individuals to know their rights and seek legal assistance if they have been wrongfully arrested.

07/05/2023

INTER VIVOS TRUSTS

An inter vivos trust, also known as a living trust, is a legal arrangement in which a person transfers their assets into a trust during their lifetime. In South Africa, inter vivos trusts are becoming increasingly popular as a way to protect assets and provide for beneficiaries. However, there are both advantages and disadvantages to consider before creating an inter vivos trust.

Advantages of an Inter Vivos Trust in South Africa:

1. Asset Protection: One of the primary benefits of an inter vivos trust is that it can protect assets from creditors and legal claims. This can be particularly important for individuals who are at risk of lawsuits or who are involved in high-risk professions.

2. Estate Planning: An inter vivos trust can be an effective estate planning tool, allowing individuals to transfer assets to beneficiaries without going through the probate process. This can save time and money, and also provide more control over the distribution of assets.

3. Tax Benefits: Inter vivos trusts can offer tax benefits, such as reducing estate taxes and capital gains taxes. This can be particularly advantageous for high net worth individuals.

4. Flexibility: Inter vivos trusts can be tailored to meet the specific needs of the creator and their beneficiaries. This can include provisions for managing assets, providing for education or healthcare expenses, and more.

Disadvantages of an Inter Vivos Trust in South Africa:

1. Cost: Creating an inter vivos trust can be expensive, as it typically requires the assistance of an attorney or financial advisor.

2. Complexity: Inter vivos trusts can be complex legal structures, and require careful drafting to ensure that they are effective and enforceable.

3. Loss of Control: Once assets are transferred to an inter vivos trust, the creator loses direct control over those assets. This can be a disadvantage for individuals who prefer to maintain control over their assets during their lifetime.

4. Ongoing Maintenance: Inter vivos trusts require ongoing maintenance, including the filing of tax returns and the management of trust assets. This can be time-consuming and expensive.

In conclusion, inter vivos trusts can offer significant benefits to individuals in South Africa, including asset protection, estate planning, tax benefits, and flexibility. However, they also come with some disadvantages, including cost, complexity, loss of control, and ongoing maintenance. It is important to carefully consider these factors before creating an inter vivos trust, and to work with a qualified attorney or financial advisor to ensure that the trust is tailored to meet your specific needs.