Hi Candidate Attorneys,

Here are my full set of notes for Paper 3: Ethics. Let’s hit this exam out of the
ballpark! These notes are offered free of charge to all Candidate Attorneys with
two stipulations:
a) These notes may not be used in any course where Candidate Attorneys
are charged a fee
b) They may not be un-Pdf’d and altered in any form or manner and
produced as someone else’s work

The reason I started offering my notes free of charge is because I absolutely

detest the fact that Candidate Attorneys, who earn a meagre salary/stipend are
being charged for additional training in order that they may pass Board exams
– I personally feel this isn’t right. What this means, in essence was that
Candidate Attorneys with the financial means could get additional assistance at
a charge whilst those who had no means, had little chance of passing the Board
exams or really battled to do so. There is no way this status quo could a) be
right and b) continue.

Having said this, I also looked at the final results of the March 2023
examinations for Gauteng. To say I was shocked by the results is an
understatement! I decided to take my 32 years’ experience in adult learning and
development and assist Candidate Attorneys free of charge in order to pass
these exams.

Ubuntu says, “I am because we are”. Please accept these notes as a gesture

of ubuntu. Let’s take hands and help each other to cross that finishing line and
become admitted attorneys of the High Court of South Africa (wow that sounds
good, doesn’t it?) And… it doesn’t end there… just as these notes are an act of
kindness from me to you, my wish is that you will pass that kindness on to
others.

Finally, good luck with your studies. If you fail Ethics now, I am afraid it can only
be because you failed to put the requisite time and effort into your studies.

Kind regards, Di Gibson

1
 ETHICS NOTES

• Definition
o Principals governing behaviour/activity
o What’s right/wrong, good/bad
o Different to morals (what your beliefs are)
• LPC Code of Conduct
o Lewis Golden Rule
▪ Lawyers are bound to act with honour & fairness. They
should act with skill. Don’t degrade self for the purpose of
winning.
▪ A practitioner should avoid conduct which damages their
reputation as an honourable lawyer/citizen
o Sources
▪ Legal Practice Act
▪ Public interest
▪ Court judgements
▪ Common law
▪ Foreign law
▪ Rulings of law societies
▪ Council ruling
• Role players
o Attorney
o Commissioner of Oaths
o Client
o Advocate
o LPC
• Attorney admission
o Fit and proper standard
o 21 years of age or older
o RSA citizen
o LLB
o PLT’s
o 1 or 2 years articles
o 4 Board exams written and passed
o Could previously have been an Advocate
• Fit and proper
o Honesty
o Integrity
o Reliability
• Duty to:
o Obey client’s instructions
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 o To be absolutely honest
o To uphold the administration of justice
o Conduct matters
▪ Speedily
▪ Efficiently
o Confidentiality
o Honesty/respect towards colleagues
• Conflict of interest
o 2 (or more) competing interests
o Cant betray other party
o Affects judgement/loyalty
o Cant represent both parties in litigation
o One persons interests cant be placed over the others
o If there is a conflict, withdraw and terminate the mandate
• Mandate
o Attorneys are not obliged to accept a mandate
o Considerations
▪ Conflict of interest
▪ Illegality/fraud
▪ Own competence
▪ Cant agree on fees
▪ Not sufficient time to handle the matter
• In terms of the Code of Conduct:
o Don’t accept a mandate:
▪ When there is an existing mandate
▪ A contingency fee agreement where there are no grounds
to terminate

ATTORNEYS LIEN

• Means that you cannot release certain documents which you drafted on
behalf of the client to the client until your fees are paid.
• Defence against re vindicatio (in that you hold the documents until you
are paid)
• This is not all documents – only those the attorney drafted/sent on the
client’s behalf.

3
 ATTORNEYS
• Billing
o As per fee agreement
o Contingency Fee Agreement (“CFA”)
• CFA
o Based on outcome of the matter
o No fee, no win
o Increased fee
▪ Double the attorneys normal fee or
▪ 25% of the award (whichever amount is the lessor)
o Must be in writing
o In terms of the Contingency Fee Act
• Billing depends on:
o Complexity of matter
o Skill, knowledge, experience, expertise, labour of attorney
o Time spent of the matter
o Quantity/complexity of matter
o Amount involved
o Importance
• Correspondent
o Must have instructing attorney
o Instructed attorney cant communicated with the client directly
o Keep instructing attorney informed
o Instructing attorney may get 1/3 allowance
• Sharing fees
o Candidate Attorneys – in old Act could earn commission but no
more
o Can only share with other attorneys
• Cost estimate
o Must provide a cost estimate to clients
o Includes
▪ Fees, disbursements, charges
▪ Advocate/Attorney hourly fee
▪ Outline of work
• Overreaching:
o Taking advantage of another’s ignorance
o Unreasonably high fees
o Disputes referred to LPC
o More than over charging
• Other business
o Attorneys may engage in another business as long as
▪ There is no conflict of interest

4
 ▪ The attorney avoids doing business with a client (get client
to seek separate legal advice)
▪ The attorney never borrows money from a client unless the
client is a money lender
• Duties
o Only an attorney can:
▪ Appear in court
▪ Draft/execute instructions
o No-one can:
▪ Say they are an attorney when they aren’t
▪ Practice as an attorney when they have been struck from
the roll
• Misconduct
o This is when an attorney breaches the Code of Conduct
o Any misconduct
• Legal advice
o Only an attorney can give legal advice
o Attorney takes ultimate responsibility
o Attorney brief counsel
o Attorney attends court

ADVOCATES
• Types
o One type cant see clients directly
▪ Attorney/Advocate agree on fees
▪ Attorney liable for Advocates fees
▪ Consulting an Advocate:
• Must be done in Advocate chambers
• Permission must be obtained if meeting not in
chambers
▪ If there is a disagreement about fees:
• Meet and discuss
• Refer Ombudsman at Bar
• Lodge a legal complaint with the Secretary of Bar
Council
o Other type can see clients directly
▪ Must hold a Fidelity Fund Certificate (“FFC”)
▪ Must notify council
▪ Practices:
• For own account

5
 • Law clinic
• Leg Aid
• State Advocate

COMMISSIONER OF OATHS
• Role:
o Assist community
o Oath/Affirmation
o Certify documents
o Identify deponent
o No fee may be charged for commissioning
o Attorney automatically a Commissioner of Oaths
• Limitations:
o May not administer oath/certify documents in matters where an
attorney has an interest
• Exceptions
o Deeds office transactions
o Certified documents submitted to the Minister of Justice
o Where the Commissioner of Oaths is not an attorney and
commissions in the course of their employment/course of duty
• Oath
o Do you know and understand the contents of this
affidavit/declaration?
o Do you object to taking the prescribed oath?
o Do you consider the oath binding on your conscience?
o “I swear the contents are true and correct… so help me God”
• Affirmation
o “I truly affirm that the contents of this declaration are true and
correct”
o Sign in front of the Commissioner of Oaths
o Commissioner of Oaths:
▪ Certifies the documents
▪ Signs in from of the Commissioner of Oaths
▪ Commissioner:
• Full name
• Name of business
• Business address
• Designation

6
 LPC

• Code of Conduct - Part 1

o Definitions
• Code of Conduct - Part 2
o General provisions
• Code of Conduct - Part 3
o Attorney’s conduct
• Code of Conduct - Part 4 and 5
o Advocates conduct
• Code of Conduct - Part 6
o Conduct of legal practitioners
o Includes Candidate Attorneys
• Code of Conduct - Part 7
o Legal practitioners not in private practice
• Conflict of interest
o Refrain from doing anything against the LPC Code of Conduct
o Places attorney in conflict:
▪ With their own clients
▪ With other clients
o When dealing with two (2) of more clients be careful of conflict of
interest
▪ Withdraw if a conflict of interest occurs
• Taxing (non-litigious matters)
o Clients may request LPC to tax their attorney’s bill
o Most disputes to LPC are about overreaching
o Attorneys fail to give a description of fees charged to their clients
• FFC
o Purpose:
▪ Reimburse clients in cases of theft of trust funds
o Validity:
▪ 01/01/20xx – 31/12/20xx
o Obtained:
▪ On the website and after payment received
o VIP:
▪ An attorney cant take money from a client if they don’t hold
a FFC
▪ Consequences: The attorney could be suspended

7
 CLIENT
• Relationship with attorney:
o Mandate relationship
o Attorney gives professional services and the
o Client pays
o An attorney can’t terminate a mandate without a valid reason
o An attorney can’t receive a fee until the mandate is completed
o An attorney must give the client a financial statement
• Cross-examination
o The client may not consult the attorney during cross-examination.
o The client cannot receive coaching
o Even if there is a break in the client’s testimony, the client is still
under oath so therefore can’t speak to the legal representative
during the break
• Guilty plea
o It is not unethical for an attorney to represent you if you told him
you are guilty
o A Judge, not an attorney determines guilty
o Attorneys must be cognizant of the fact that they are officers of
the court
▪ Can’t mislead the court
▪ Cant be untruthful
o If the client admits guilt to the attorney:
▪ Attorneys are not the ones to judge – the Judge is
▪ Attorney will not change the plea – after all, the State must
prove guilt
• Conflict
o If there is conflict between the attorney’s advice and the client’s
instructions:
▪ Attorney needs to ensure that they have covered
themselves, so put your views in writing to the client
▪ The Attorney needs to ensure that the client is not abusing
the court process
• Attorneys fees:
o If there is no fee agreement – attorney needs to charge at
Magistrates Court tariffs

ETHICS IN LITIGATION
• Court
o An attorney has a duty to the court for the administration of justice
o Case law:

8
 ▪ An attorney must cite case law to assist the court even if
this case law is against your argument
o Code of Conduct
▪ In terms of the LPC Code of Conduct, the attorney may not
mislead the court.
• Colleagues
o Always play the ball and not the player.
o Be respectful and courteous to your colleagues
• An attorney testifying in court
o Normally an attorney wont testify
o If an attorney needs to testify, he must:
▪ Withdraw from the matter
▪ Arrange for another legal practitioner to consult with the
client
o Remember: Confidentiality
▪ In terms of the LPC Code of Contact
▪ Attorney must not comment publicly on any matter (may
comment on “general” issue)
• Interviewing witnesses:
o Civil matters:
▪ May interview subpoenaed witnesses
▪ It is common courtesy to let the opposition attorney know
that you are interviewing the witness
o Criminal:
▪ Attorneys should avoid interviewing State witnesses and
only do so if the Public Prosecutor agrees to this.
• Correct forum:
o Attorneys should know the correct forums available to clients e.g.
▪ Small Claims Court
▪ Magistrates Court (Divisional) – up to R400K
▪ Magistrates Court (Regional) – claims up to R200K
▪ High Court – claims over R400K
▪ CCMA for labour matters

ATTORNEYS STRUCK FROM THE ROLL

• The test:
o Are you fit and proper?
▪ Honest
▪ Reliable
▪ Integrity
▪ Lawful

9
 o This doesn’t apply to minor indiscretions like traffic fines
• Application for readmission
o Attorneys struck from the role must:
▪ Show genuine and complete transformation
▪ Show that the original defect in their character is no longer
there
▪ Show that if readmitted, their conduct will meet the
standard required
▪ Show that no public would be prejudice by the readmittal

THEFT OF TRUST FUNDS

• Attorneys must:
o Open a trust account
o Keep proper accounting records of amounts:
▪ Deposited
▪ Withdrawn
▪ And the interest earned
• Theft of trust funds
o Must be reported immediately to the law society
o Must be reported to the Fidelity Fund (“FF”)
o Attorney must reimburse the clients trust account and any
shortfall must be claimed from the FF

CONTEMPT OF COURT
• Meaning:
o Non-adherence to:
▪ Authority
▪ Dignity
▪ Justice of court
• Types:
o Civil
o Criminal
o Direct
o Indirect
• Civil contempt
o Failure to perform act ordered by the court
o Examples:
▪ Failure to comply with a certified CCMA Award
▪ Failure to comply with a maintenance order

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• Criminal contempt
o An act which impairs dignity of the court
o Applies to both criminal and civil matters
o Example:
▪ Insulting the judge
• Direct contempt
o Occurs in the court
o Known as facie curiae
o Examples:
▪ Threatening court officials
▪ Failure to appear in court
▪ Destroying documents
▪ Breaking court orders
• Indirect contempt
o Occurs outside court
o Examples:
▪ Threats to court officials
▪ Destroying documents
▪ Not adhering to court orders

TERMINOLOGY
• Pro amico
o Acting for friends/family
o Can charge for disbursements
• Pro bono
o Acting voluntarily for members of the public
• Contingency fee
o The attorney will only charge if he wins the matter
o Attorney can charge double their normal fee OR 25% of the
award – whichever is the lessor
o A CFA must be in writing
• Costs
o Costs de bonis proprils
▪ These are costs awarded by the Court against an attorney
▪ Can also be awarded against:
• An executor
• A trustee
▪ These costs are on an attorney – client scale
▪ Example
• Wasting of courts time
• Bringing a vexatious and frivolous matter

11
 • Where an attorney is negligent or dishonest
o Party and party costs
▪ The unsuccessful litigant needs to pay these costs
▪ The are costs incurred during the case
▪ These costs don’t include costs before summons/notice of
motion
o Attorney – client costs
▪ These are calculated the same as party-to-party costs
▪ Includes costs before litigation
o Attorney own client costs
▪ These are costs the attorney would ordinarily have charged
their client
o Cost in cause
▪ These are costs awarded in preliminary (interim,
interlocutory) proceedings
▪ They are paid by the unsuccessful litigant
▪ If the Plaintiff wins costs:
• The interlocutory costs and the costs in case will be
awarded to the Plaintiff

CONTINGENCY FEE
• Example:
• Let’s say you are representing a party for a 3rd party claim
• The client is awarded R200K by the court
• The attorney’s normal fee would have been R30K for the work done
• In a CFA, an attorney may charge double their normal fee (which in this
case would be R60K) or 25% of the claim (which in this case would be
R50K) whichever is the lessor amount. Therefore, the attorney would
charge R50K in this example.

DAMAGES CLAIMS
• Normal damages
o Example 1:
▪ The client agrees to 16% of the claim. The claim is R80K
Therefore, to calculate the normal damages you would
multiply the 16% by the R80K and the answer is R12,800.00
o Example 2:
▪ Mr Cook and Mr Tshabalala are involved in a motor vehicle
accident. The court determines that Mr Cook was 30%
negligent and Mr Tshabalala was 70% negligent. Mr Cooks

12
 damages amount to R80K and Mr Tshabalala’s claim is
R30K. You are required to work out the amount owing and
determine who owes who.
To calculate this:
Cook: 30% * R30K = R9,000.00
Tshabalala: 70% * R80K = R56,000.00
Instead of Mr Cook paying Mr Tshabalala and then Mr
Tshabalala paying Mr Cook, we can deduct the lower
amount from the higher amount and determine the
difference – R56K minus R9K = R47,000.00 which Mr
Tshabalala will need to pay Mr Cook.
• Contingency fee
o Example:
▪ Client awarded R146K. The attorneys normal fee would
have been 15% of this amount. Calculate how much the
attorney may charge if there was a written contingency fee
agreement signed between client and attorney.

The normal attorneys fee would be 15% * R146K =

R21,900.00 and the attorney may charge double this
amount so R43,800.00

25% of R146K is R36,500.00

The attorney may only charge the lessor amount so the
attorney would charge R36,500.00
• Multiple wrongdoers:
o The award is 165K but the court determines the following
percentages of negligence:
“A” was 30% negligent
“B” was 45% negligent and
“C” was 25% negligent.
You are required to calculate how much (in Rands) the various
wrongdoers are responsible for.
“A” 30% * R165K = 49,500.00
“B” 45% * R165K = 74,250.00
“C” 25% * R165K = 41,250.00

13
 WITHOUT PREJUDICE
• Any written correspondence between attorneys marked without prejudice
can’t be referred to in court proceedings
• Must be a settlement agreement (attempt to settle)
• After settlement by the parties the correspondence can be
mentioned/shown in court proceedings
• Where without prejudice is incorrectly used:
o If a letter is marked “without prejudice” but has nothing to do with
settlement negotiations and merely attempts to attack the legal
practitioner’s character, it may be shown in legal proceedings.
• Where a settlement letter omits the words “without prejudice”:
o Although the words are omitted, the letter will be treated as
without prejudice and remains privileged as long as it’s a genuine
attempt to settle.

FAMILY LAW
IN COMMUNITY OF PROPERTY

• Types of marriages
o In community of property
o Out of community of property – antenuptial agreement
▪ With accrual
▪ Without accrual
• In community of property
o This is the default marital regime in RSA
o The estates of both parties are combined – joint estate
o When the marriage is dissolved, either by death or divorce:
▪ All liabilities must be paid
▪ The residue is split 50/50
▪ Both parties are responsible for the debt
o Spousal consent is required:
▪ When buying and selling immoveable property
▪ Buying and selling shares, debentures, fixed deposits,
pledges
▪ When withdrawing funds from a bank account
▪ When signing credit agreements
▪ When signing surety agreements
▪ When selling investment assets
• Examples:

14
 o Jewellery
o Paintings etc.
o After marriage:
▪ A party will still be held liable for debts which took place
during the marriage as long as the spouse knew about the
debt and consented to it.
o Calculating how much is due to each party at dissolution of
marriage:
▪ Date of divorce:
• Assets = 1,2million
• Liabilities = R114K
• Assets – liabilities = R108K
• Divided by 2 to give each party = R54,300.00 each

OUT OF COMMUNITY OF PROPERTY – ANC WITHOUT ACCRUAL

• Basically what this says is “what’s yours is yours, and what’s mine is
mine”
• Both parties responsible for own debt
• Anc contract drawn up by a notary public
• If executed in RSA – it must be registered at the Deeds office within 3
months
• If executed outside RSA – it must be registered at the Deeds office
within 6 months
• Example:
o Assets at time of divorce:
▪ Mr R320K
▪ Mrs R880K
o Liabilities at time of divorce
▪ Mr 89K
▪ Mrs 25K
o These figures remain as is – the spouses leave the marriage with
their assets and liabilities
o Both parties responsible for their own debt

15
 OUT OF COMMUNITY OF PROPERTY – ANC WITH ACCRUAL
• Exclusions:
o Inheritance
o Funds from personal accident claims
o Donations
o Legacies
• Example:
o At time of marriage:
▪ Work out Assets – Liabilities for each and get net assets
▪ Assets
• Mr 320K
• Mrs 650K
o At time of divorce
▪ Assets
• Mr 88K
• Mrs 1,125million
o Work out the difference:
▪ Mr assets increased by R330K
▪ Mrs assets increased by R245K
• Difference = R85K
o Divide the difference by 2
▪ R42,500.00 which is what Mrs must pay to Mr.

CHANGING MARITAL REGIMES – INCOP TO ANC

• This is done by an application to the High Court
• Section 21 Marriage Property Act
• DON’T advise client to divorce because:
o This is unethical
o Grounds for divorce are irretrievable breakdown of the marriage
(which isn’t the case)
• Creditors need to be notified
• There must be no prejudice suffered
• The anc must be drawn up by a notary public and registered with the
Deeds office

FAMILY COURT
• New court established 18/07/2022
• Deals with family matters
16
 MAINTENANCE
• Parental duty
o To maintain a child
o Whether parents are married or not
• Parental duty to maintain ends:
o With the death of the child
o When the child reaches maturity (18)
o When the child is adopted
o When the parent dies (child still has claim against estate)
• Maintenance and visitation
o These are separate issues – one cant withhold visitation because
a party never paid maintenance
• Spouse refuses to pay maintenance:
o Lay a complaint with the Maintenance Manager at the
Maintenance Court
o Attest to an Affidavit
o Hand the Affidavit to the Maintenance Manager
o The non-paying spouse is charged in terms of the Maintenance
Act
o If successful, the non-paying spouse is ordered to pay arrear
maintenance
▪ May be arrested/imprisoned
▪ May have garnishing order on salary
• Court jurisdiction
o Where applicant or children reside
• Determining the maintenance amount
o The ideal is to maintain the child as they were before divorce but
this isn’t always possible
o Court looks at:
▪ Standard of living of the child before the divorce
▪ Financial means of the parents
▪ Financial needs of the child
• Variation of maintenance order:
o Apply at Maintenance court
o Can be done at the High Court but this is more expensive and
you run the risk of having a costs order against you
o If the order was granted in the High Court it can be varied in the
Maintenance Court

17
 AGREEMENT OF SALE
• Estate Agent
o Sells property – commission based
o Isn’t really necessary – you can have a private sale
o Has expertise in buying and selling property
o The seller pays the estate agent commission
o Duties
▪ “marry” buyer to seller
▪ Concludes a binding contract between the parties
▪ Estate Agent is the “cause” of the transaction
▪ If a potential purchaser approaches the seller directly:
• May need to draft a clause into the agreement that
this happened
• Estate Agent commission either done away with or
reduced greatly
• The purchase price is adjusted because the seller no
longer pays Estate Agent commission or pays less
• The purchaser indemnifies the seller against any
claim for the Estate Agents commission
• Cancellation due to breach:
o Purpose of a contract – is to reach consensus
o A breach is when:
▪ Either Purchaser or Seller commits an act or omission and
fails to fulfil obligation
▪ One side fails to perform
▪ All contracts should have a cancellation clause:
• If a party is in breach, the contract can be cancelled
o What happens if there is no clause?
▪ The aggrieved party gives notice of other party being “in
mora” (meaning default/delay)
▪ Gives the other party time to fix default failing which
contract will be cancelled
• Conditions
o Two (2) types
▪ Suspensive
▪ Resolutive
o Suspensive conditions
▪ Also called condition precedent
▪ Most common in contracts
▪ Involves material conditions of agreement (those which
must be met)
▪ Example:

18
 • Purchaser will buy the house on condition they are
granted a bond by the bank
• Effects
o Suspends the agreement until the condition is
met
o When the condition is met – contract stands
o If contract not met – contract ends
o Resolutive:
▪ Also called condition subsequent
▪ Not that common
▪ A contract becomes immediately binding on parties
▪ If a future event doesn’t happen – contract terminated
▪ Example:
• In the event that Mrs Jones doesn’t provide proof that
she has resigned as a director of XYZ company by
14 January 2023, the contract will be terminated
▪ Effects:
• Terminates agreement when condition is met
• If condition not met, contract continues

OPTIONS
• Options
o Often found with leases
o Example:
▪ Options for purchasing
▪ Within a certain period
o Deals with:
▪ Selling/buying property
▪ Binding contract
▪ Allows person who is made an offer to exercise a right
▪ Subsidiary contract
▪ Deals with a specific price
▪ When the time is right, the offer falls away
▪ If the seller offers to someone else, the seller is in breach
▪ The offer must be accepted – either expressly or tacitly

19
 OPTIONS VERSUS RIGHT OF REFUSAL
• These are not the same concepts
• Example:
o An attorney is thinking about immigrating. A Candidate Attorney
asks the attorney for the right of first refusal to purchase the
attorney’s robe.
o A right of first refusal is always dependent on a condition (in this
case the condition is if the attorney immigrates).
o If the attorney immigrates, the Candidate may buy the robe
o If the attorney does not immigrate, the right of refusal ends.

SHARES
• Lets assume a company owns property. The Shareholders own shares
in the company and the directors are able to sell their shares. In such
cases, an attorney is able to act for both parties – the buyer and the
seller.
• Type of contract
o Sale and transfer
• Transactions involved:
o Sale of shares
o Directors loan accounts
• Section 38
o Company may not provide financial assistance when it comes to
purchasing shares
o This doesn’t apply to Close Corporations
o A Close Corporation can register a bond over property

COOLING OFF PERIOD

• Introduced on 27/12/1998
• It is for consumers who purchase goods in haste
• It allows consumers a certain amount of time in which to cancel
• In terms of immoveable property:
o Alienation of Land Act is applicable
o 5 day cooling off period
o This begins on the day the Offer to Purchase is signed and
excludes Saturdays, Sundays and Public holidays
o Property value

20
 ▪ The value of the property must be less than R250K
o Type of property:
▪ Must be a residential property

AGREEMENT OF SALE
• Must contain the following:
o Full names of buyer and seller
o Registration number of the company
o Status of the purchaser
o ID Numbers
o Property description
o Purchase price amount
o Method of payment
o If a bond is required
o Suspensive/resolutive conditions
o Estate Agent commission payable
o Date of occupation
o Occupational rent (where stipulated)
o Costs

LEASES
• Leases are contract agreements
• One person (Landlord/Lessor) conveys occupation of property and the
other (Tenant/Lessee) pays for the usage
• Limited period
• Limited price
• Types:
o Short term lease
o Long term lease
o Known as “fixed term” leases – they are for a specific period
• The three (3) “P’s”
o Price
o Period
o Property/place
• Price
o Lessor rents for:
▪ Specific price
▪ Specific period
▪ Both of which are stipulated in the contract

21
 o Escalation (increase) clause
▪ In the absence of an escalation clause, there can be no
increase in the rental payable
o Payment must be in money
• Period
o After the period end, the lessee can continue to lease the
property either:
▪ On a month-to-month basis or
▪ By signing a new lease
▪ Maximum period for a lease is 24 months although this
doesn’t apply to companies who are leasing
• Place
o Lessor must have the property in a liveable state for the lessee to
enjoy for a limited period
o Lessee becomes the occupier of the property
• Periodical lease
o This is a lease with no fixed end date. The lessee leases the
property on a month-to-month basis.
o Either lessor or lessee can give notice to the other

TERMINATION OF LEASE
• Ways
o End of lease period
o Lessor gives lessee notice to vacate (periodic lease)
▪ Notice
• Reasonable notice is 1 month
o Cancellation of lease due to breach
o Termination of lease by mutual agreement
• Breach
o Failure to pay rent
o Written notice of breach
▪ Give the other party 7 days to remedy the breach
o Other types of breach:
▪ 14 days notice to remedy the breach
o Where lessor terminates but lessee doesn’t move out of property
▪ Tenant/Lessee must continue to pay rent
▪ The Lessor accepting the rental doesn’t in any way affect
his right to terminate

22
 CESSION OF LEASE
• When the lessee transfers the right of occupation to a 3rd party
• No new lease is concluded
• Case law
o University of Johannesburg v Auckland Park Theological
Seminary (ATS)
o Facts:
▪ ATS leased from UJ.
▪ ATS ceded to Wamjay, UJ was unaware of this cession of
lease
▪ UJ issued an eviction order
▪ The High Court agreed with the eviction order
▪ The Supreme Court of Appeal (“SCA”) stated that ATS
could cede in the absence of a clause preventing this
▪ The Constitutional Court (“CC”) agreed with the High Court
and stated that the right in contract law was specific to ATS

CITING OF PARTIES
• The Lessor is xxx (reg no) represented by (name of person) a duly
authorised director by resolution of the directors. A copy annexed hereto
as “Annexure A”.
• The Lessee is xxx (reg no) represented by (name of person) a duly
authorised director by resolution of the directors. A copy annexed hereto
as “Annexure B”.

DOMICILUM
• Address at which notices will be served.
• Cant be a postal address
o Because you cant do personal service in a postal box

IMPROVEMENTS
• Types;
o Necessary
o Useful
o Lavish
• Lessor:
o Duty to maintain property

23
 o If Landlord fails to maintain the property the lessee can withhold
rent
o Responsible for:
▪ Leaking roof
▪ Stove
▪ Geyser
▪ Maintaining the structure
• Lessee
o Obligation to pay for any damage caused by himself/friend/family

RETURN OF PROPERTY
• At expiry of lease:
o Lessee to vacate
o Lessee to hand all keys to lessor
o Lessee to leave the premises in the same condition as he
received them
o Lessee responsible for any loss/damage

CANCELLATION OF LEASE
• Prior to the start date of the contract:
o The lessee gives 1 months’ notice
o The lessee agrees to pay 1 months rental
o The cancellation penalty is payable immediately
o The Landlord/lessor is entitled to claim any upfront payment he
paid to the Estate Agent on a pro-rata basis.

CONTRACTS
• Need to be in writing to be valid – called parole evidence
• Prevents parties from redefining terms of the contract
• Types:
o Deed of suretyship
o Alienation of land
o Long leases (land)
o Credit transactions
o Anc agreements
o Franchise agreements
o Learnerships
o Donations

24
 o Apprenticeship agreements
o Sale of time-share
• Whole agreement clause
o Contract constitutes the entire agreement between the parties
o No agents other than those stipulated in writing are binding on the
parties
• Referral to previous contract(s):
o Cant refer to previous contracts in a dispute once the new
agreement is in writing.

ACKNOWLEDGEMENT OF DEBT
• Is a document signed by the debtor acknowledging that he owes the
creditor money
• Contains:
o Details of the debtor
o Details of the creditor
o The amount owed
o Any interest which has accrued

ALTERNATE DISPUTE RESOLUTION (“ADR”)

• Purpose:
o A method of resolving issues before litigation
o Its cheaper and quicker than litigation
• Parties:
o The parties to the dispute
o The independent arbitrator
• Where held:
o In a neutral venue
• When held:
o Prior to litigation
• How is it conducted?
o Negotiation
o Conciliation
o Mediation
o Arbitration

25
 ARBITRATION
• Aim:
o To find consensus
o To settle the dispute
• Written arbitration agreement
o Details:
▪ The nature of the dispute
▪ The name of the arbitrator
▪ The arbitrators duties
▪ Where the arbitration will be held
▪ What the costs are
▪ Rules/procedures of proceedings
▪ The appeal process
• Organisations:
o Arbitration of Arbitrators
o Association of Arbitrators
• Breach:
o This occurs by an act or omission of one of the parties
o Parties fail to reach consensus
o Any party may cancel the arbitration
▪ Two options:
• Cancel
• Continue
• Advantages of arbitration:
o Fairness
o Costs
o Time
• Characteristics of arbitration:
o Consensual
o Parties choose the arbitrator
o The arbitrator is a neutral person
o Arbitration is confidential
o The Arbitrators decision is final
• Arbitration versus mediation
o Both deal with dispute resolution
o Mediation is non-binding
o During mediation the arbitrator can meet with the parties
individually
o Mediation is collaborative
o Arbitration is adversarial
o The arbitrator makes the final decision and its binding
o Both methods are consensual

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 EMPLOYMENT CONTRACTS
• Most employment contracts contain a confidentiality clause
• Prevents the employee from disclosing confidential information
• A confidentiality clause is in existence during the contract of
employment but also in force for three (3) years thereafter.

SELLING MOVEABLE PROPERTY

• Ownership remains with the seller until the amount is paid by the
purchaser in full
• If the Purchaser defaults, the seller can cancel the contract
• The purchaser must insure the vehicle and submit proof thereof to the
seller

CONSUMER RIGHTS
• When goods are purchased/imported/produced:-
o Seller offers a warranty that the goods comply with certain
standards
o Consumer may return goods within 6 months from purchase
o The supplier must:
▪ Repair/replace goods or
▪ Refund (reimburse)
o If the repair is still deficient:
▪ Seller must refund/replace the goods within 3 months

VOOSTOETS CLAUSE
• Means “as it stands”
• No longer applicable in our law unless certain conditions are present:
o I tell you that the motor vehicle I am selling you should be looked
at by the Automobile Association (“AA”) beforehand and you
choose to ignore that advice.

SEVERABILITY (SEPERATION) OF PROVISIONS

• This is a clause in the contract stating that if parts of the provisions are
illegal/against public policy, the remainder of the contract applies.

27
 VARIATION
• This is a variation in the contract.
• Parties are free to vary a contract orally unless a variation clause
prevents this. This prevention must be in writing. A binding contract
does not require formalities.

VAT
• Section 7 of the VAT Act.
• VAT is payable by a registered vendor on all goods and services
supplied/imported.

SURETY
• A party offers to pay the debt of another party if that debt is not paid.
• The surety is also known as the guarantor.
• The parties to a suretyship agreement:
o The debtor
o The creditor
o The surety
• Example:
o Surety on a mortgage bond. If debtor fails to pay, surety will.
• Exceptions:
o There are three (3) exceptions on any suretyship agreement. The
banks normally like to cancel these exceptions so that the surety
cant rely on these as a defence.
▪ Exception: De duobus vei puribus reis dependi
▪ Exception: Beneficium ordinis seu excessionis
▪ Exception: Beneficium divisionis
o De duobus vei puribus reis dependi
▪ This is where there are two (2) debtors. Each debtor would
be responsible for their own debt.
▪ Exception:
• The exception here is that each debtor is jointly and
severally responsible for the debt. What this means
is that the creditor can go after one debtor for the
entire debt.
▪ When the creditor repudiates this exception:
• This makes both the surety and the debtor jointly and
severally liable. This means that the creditor can go
after the surety for the entire debt.

28
 o Beneficium ordinis seu execusionis
▪ Exception:
• This means that the creditor should first go after the
debtor and then sue the surety.
▪ When the creditor repudiates the exception:
• This means that the creditor can sue (go after) the
surety if the debtor doesn’t pay.
o Beneficium divisonis
▪ Exception:
• The liability is apportioned to all sureties equally
▪ When the creditor repudiates the exception:
• This means that the sureties are held jointly and
severally liable meaning that one surety can be held
liable for the entire debt.
• When drafting a suretyship agreement:
o Pay attention to how parties are married:
▪ If in community of property – you need spousal consent
(assistance from the spouse)
o Pay attention to the fact that it must be signed correctly
o Ensure the ID numbers of the parties are correct
o Ensure the document is stamped.
• Important:
o The surety would have recourse against the debtor in order to try
and recover his money/any loss suffered as a result of the debtor
not paying.
o Requirements:
▪ The principal debt must have been paid by the surety
▪ The debtor therefore must be released from his obligation
▪ The surety must not have negligently failed to raise a
defence which the debtor could have raised
▪ The surety must not have failed to notify the debtor that his
debt has been paid
▪ In the case where there is more than one surety and the
one surety has had to pay the entire debt due to the jointly
and severally clause, he may sue the other surety’s in the
form of 1/3 of the amount plus costs.

CESSIONS
▪ A cession is the transfer of a right from one person to another. This can
be either a partial transfer or and out-and-out transfer (called a
complete transfer) of rights as security (called a pledge).

29
 o Parties
▪ The person who transfers the rights = the cedent
▪ The person receiving the rights = cessionary
o Example:
“A” wants a loan from the bank. The bank needs some form of
security so askes “A” to cede his book debts. In other words, any
person who owes “A” money in his company. The bank takes hold
of the debtors (book debts) and grants “A” an overdraft. If “A”
pays his loan off to the bank, he gets his book debts back. If “A”
doesn’t pay his loan off, the bank “owns” the amounts the debtors
of “A’s” company owe him.
o How is this done?
Its called a cession of book debts.
o What’s a permanent cession?
This would be when “A” sells his book debts and therefore is a
permanent transfer of his rights.

COMPANIES
▪ Types:
o Profit
o Non-profit
▪ Registration of company:
o 3 or more natural persons (or organ of State) may register
o Done through CIPRO
o Need:
▪ Certified copies of Director’s ID documents
▪ A certified copy of the applicants ID
▪ A Power of Attorney (where necessary)
▪ Notice of Incorporation
▪ Non-profit company
o Without share capital
o Used to be called Section 21 companies
o Registered for public benefit
o When dissolved, the assets must be transferred to a like-minded
non profit organisation
▪ Profit companies
o Types:
▪ Private companies
▪ Public (Pty) Ltd companies
▪ State-owned enterprises
▪ Personal liability companies
o Purpose:

30
 ▪ In business to make money – financial gain
o Formed:
▪ By one (1) or more parties
o Shareholders:
▪ May have shareholders
o Registration:
▪ Notice of Incorporation – Section 13(1) of the Companies
Act
▪ CIPRO forms
• Application for name of company
• Notice of Incorporation (Form COR14.1)
• Directors full names
• Memorandum of Incorporation (COR 15)
• Power of Attorney (optional)

SPECIAL POWER OF ATTORNEY

▪ Also called a “limited” Power of Attorney
▪ It limits the agents ability to act
▪ It is for a specific function only
▪ It has a timeframe
▪ Examples:
o Principle doesn’t want to act as a trustee and requests you to sign
the form on his behalf
o You act as an agent and purchase property on someone else’s
behalf
o You are going out the country and want someone to handle your
affairs whilst you are out the country

PRE-INCORPORATION AGREEMENT
▪ This is a written agreement which the directors sign before a company
has been registered (incorporated). If a person acts on behalf of the
company, the company is bound by this.
▪ The Directors must ratify (accept or reject) the agreement no less than 3
months after the company has been incorporated
o Can be complete ratification
o Can be a partial ratification
o Can be a conditional ratification
▪ If directors do not ratify agreement:
o After 3 months of the company being incorporated, the pre-
incorporation agreement is said to have been ratified (accepted)
31
▪ Liability:
o Anyone entering into a pre-incorporation agreement can be held
liable for any debts incurred by the business before it is
registered. The directors are held jointly and severally liable.

OPENING A BUSINESS
▪ Factors to consider:
o Capital
o Own business or with others
o Risk assessment
o Industry regulations
o Costs

SOLE PROPRIETORSHIP
▪ Sole means “one” therefore one owner
▪ Small businesses
▪ Sole proprietor (owner) normally provides capital and also runs
business
▪ Cheaper
▪ If the business cant pay its debts the sole proprietor pays them out his
own pocket
▪ No continuity of business

PARTNERSHIP
▪ 2 – 20 partners
▪ Each partner contributes something, either:
o Capital
o Property
o Service
▪ Profits are shared
▪ Cheap
▪ Easy to manage
▪ Partners carry the risk jointly and severally
▪ Aim:
o To make a profit
▪ Benefits
o Cheap
o Two heads are better than one
o Simple to arrange

32
 o More capital available
o Quick to establish
o Greater borrowing capacity
o Less future expenses
▪ Disadvantages
o Liability of partners
▪ Jointly and severally liable
▪ One partner can be sued for the entire debt
▪ Risk of disagreement
▪ When partners leave or join the entire partnership needs to
be evaluated
▪ Characteristics
o All partners bring something into the partnership
o The partnership is to the benefit of all
o The object/aim is to make a profit
o The contract must be legitimate

CLOSE CORPORATIONS
▪ No new Close Corporations can be registered however you can buy a
shelf company
▪ Small businesses
▪ Limited to 10 members
▪ Relaxed legislation
o Books don’t need to be audited
▪ Cheap to set up
▪ Members not personally liable for debts of Close Corporation
▪ Benefits:
o Cheaper
o Easy to manage
o Membership restricted
o No share capital
o No personal liability
o Continued existence after the death of a member
o More flexible
▪ No books audited

COMPANIES
▪ Medium to large companies
▪ Acquires legal personality
▪ Shareholders – share capital

33
▪ Shareholders not liable for company debt
▪ The risk to shareholders is the amount they put into the company
▪ Continuity of business

BUSINESS TRUSTS
▪ Object:
o Trust beneficiaries
▪ Can be set up with administrators administering or trustees owning the
trust with beneficiaries having a personal right
▪ Perpetual succession
▪ Parties:
o Founder (donor)
o Trustee
o Beneficiaries (all not personally liable for debt)
▪ Registration:
o Must be registered with the Master of the High Court
▪ Allows for:
o Transfer of wealth from one generation to another
o Flexible estate planning
o Separation of ownership assets
o A tool for protection of minors/mentally disabled/beneficiaries
▪ Types:
o Testamentary
o Living
▪ Vested
▪ Discretionary
• Often called irrevocable
• Gives the trustee control of:
o Income beneficiaries
o Capital beneficiaries
o Bewind
▪ Documents:
o 2 x copies of the trust deed
o A letter from the auditor
o 3 trustees (preferably one a professional person)
o Certified copies of the trustees ID documents
o Name of trust bank account
o Name and address of person maintaining records.
o Mandate dispensing with security

34
 SELLING PROPERTY WITH IMMOVEABLE PROPERTY
▪ Not governed by any law in terms of form (context)
▪ Governed by legislation where:
o Trader transfers property:
▪ Notice must appear in the Government Gazette
▪ Notice must appear in 4 newspapers
• 2 (two) English
• 2 (two) Afrikaans
▪ If the seller is sequestrated:
• The sale is void
• Up to 6 months
▪ Repercussions for the buyer:
• Wont become owner
• May have to pay and never receive property
▪ Sale concluded by:
o Business purchase agreement
o Parties
▪ Seller
▪ Purchaser
▪ Must be included in the contract/agreement
o Purchase price
o Other clauses

BUYING A BUSINESS AS A GOING CONCERN - SECURITY

▪ Security
o Buyer puts down security
o Intends paying the debt off monthly
▪ What is needed for security:
o Notarial bond
o Cession of book debts
o Surety by a 3rd party
o Insurance (on the life of the Purchaser)
o Acceleration clause

VAT
▪ Zero-rated
o Payable, not exempt
o Payable at rate of 0%
o Falls within the tax net
o Purchaser can still claim input VAT
35
 o Example:
▪ Seller and Purchaser both VAT vendors
▪ Company is a going concern
▪ Sale of company is zero-rated
▪ Exempt:
o Falls outside of tax net

INSOLVENTS
▪ Insolvents have diminished legal capacity
▪ Insolvency is imposed by the courts on the person unable to pay his
debts
▪ The court grants the debtor:
o Relief from debt
▪ The court grants potential creditors:
o Protection
▪ Couple married out of community of property:
o Where one spouse is declared insolvent
o Check whether solvent spouse ever signed surety?
o Spouse who is solvent will have to prove that assets are his/hers
(may have these assets seized)
o Assets are vested with the Master/trustee
▪ Couple married in community of property:
o Joint estate sequestrated

PRESCRIPTION
• Periods
o 30 years
▪ Mortgage bond debt
▪ Judgement debt
▪ Tax debt
o 15 years
▪ Debt owed by the State (lease of land)
o 6 years
▪ Debt in terms of negotiable instruments (e.g. cheque)
▪ Notarial bonds
o 3 years
▪ All other debt
• Prescription interrupted:
o When the debtor acknowledges the debt
o Judicially

36
• Delayed:
o S13(1) of the Prescription Act
o Where the creditor is a minor/under curatorship
o Where the debtor is outside RSA
o Where the creditor and debtor are married
o Where the debt arose from a partnership
o Where debt was the reason for arbitration
o Where the executor is not yet appointed
o Where the debt is part of a deceased estate
• Can I issues summons after prescription?
o Yes however your claim wont be successful and you may very
well land up with a cost order against you should the debtor raise
prescription as his defence

FICA
• FICA stands for the Financial Intelligence Centre Act
• It came into effect on 30/06/2003
• FICA trumps client confidentiality!s
• Aim:
o To identify and verify clients
o To reduce risk
o To prevent/reduce money laundering
• Purpose:
o To combat money-laundering
o To impose restrictions on financial institutions
o To conduct customer due diligence
o To implement risk management
o To register/implement reporting measures
• Attorneys:
o Establish if their client can act on behalf of someone else
o Determine the nature of the client’s business
o Determine the intended purpose and source of the client’s funds
o Example:
▪ A client brings you R50K in cash
▪ This needs to be reported as suspicious so that further
investigation can take place

37
 MONEY LAUNDERING
• Money laundering disguises unlawful activity
• Purpose:
o Making money/concealing funds/turning “dirty money” into “clean
money”
• Generally, money laundering is conducted by crime syndicates
• Money laundering is run through accountable institutions
• Proceeds of crime moves from bank to bank, business to business

38
 DEED OF SALE - MOVEABLE AND IMMOVEABLE
CANCELLATION DUE TO BREACH

1. We refer to the Offer to Purchase concluded between yourself and the

Seller on xx/xx/xxxx.
2. In terms of clause 3 of the Agreement, should a bond be granted, you
were to pay the deposit by xx/xx/xxxx.
3. As no deposit has been received, we had been instructed by the
Purchaser that you are now in breach and you are hereby instructed to
rectify such breach within a period of seven (7) days from date hereon
failing which the Purchaser will enforce his rights as per the contract.
4. We await your response.

COOLING OFF PERIOD

The right to cancel in terms of the CPA
The purchaser acknowledges and is aware that by virtue of the Purchase Price
of the Property exceeding R250,000.00 (two hundred and fifty thousand Rand),
section 29A(1) of Act 68 of 1961 as amended is not applicable to this Agreement
and therefore the statutory five (5) day cooling off period is not applicable to this
Agreement.

39
 LEASE - FIXED PROPERTY
RENTAL AND SECURITY FOR PAYMENT
1. The Tenant/lessee shall pay the Landlord a rental of R30,000.00 (thirty
thousand Rand) per month.

2. The Rental shall be paid monthly in advance and must reflect in the
Landlord’s bank account as cleared on or before the 1st day of each
month.

PAYMENT OF RATES AND TAXES (AND LEVIES)

3. The Landlord shall be liable to pay all rates and taxes (and levies)
payable in respect of the Premises to the local authority/body corporate
concerned.

PERIOD
4. The lease will start on the 1st day of January 2023 and shall end on
midnight on the 31st December 2025.

ESTATE AGENTS COMMISSION

Single amount commission:
5. Commission in the amount of R20,000.00 (twenty thousand Rand) is
earned by the Estate Agent on signature of this Agreement by both the
Landlord/lessor and Tenant/Lessee and on fulfilment of suspensive
conditions contained herein, if any. Such commission is payable by the
Landlord to the Estate Agent after receipt by the Estate Agent of the
deposit referred to in clause 1 above; and

6. Notwithstanding anything to the contrary contained in clause 5, if this

Agreement is cancelled at any time as a result of a breach on the part of
either of the parties, the Estate Agent will immediately be entitled to
payment of the commission from the party at fault, or will immediately be

40
 entitled, in the absence of any written agreement to the contrary, to claim
one half of the amount so paid by him from the other party.

7. Clause 5 and 6 are to be construed as an agreement for the benefit of

the Estate Agent and the Estate Agent accepts the benefit in terms of
these clauses on signature of this Agreement by the parties

BREACH
In the event of either one of the parties committing a material breach of any of
the terms of this Agreement and failing to remedy such breach within a period
of seven (7) days after receipt of a written notice from the other party calling
upon the defaulting party to remedy the breach complained of, the aggrieved
party shall be entitled at his sole discretion and without prejudice to any of his
rights in law and/or in terms of this Agreement either to claim specific
performance of the terms of this Agreement or to cancel this Agreement and
without further notice to claim damages from the defaulting party. Should the
Tenant/Lessee commit a breach of the provisions of this Agreement three times
in any one calendar year, then upon the third breach, the Landlord/Lessor shall
be entitled immediately to implement either of the remedies referred to above
without having to give the Tenant/Lessee written notice to rectify such breach.

In the event that the defaulting party is:

8. The Tenant/Lessee: the full amount of the deposit shall on cancellation of
this Agreement be forfeited in favour of the Landlord/Lessor subject to
any remedies in that regard which are available to the Tenant/Lessee at
law.
9. The Landlord/Lessor: The Tenant/Lessee shall not later than thirty (30)
days after cancellation of this Agreement receive from the
Landlord/Lessor the deposit less any deductions made thereof in terms
of paragraph x above.

41
10. Should this Agreement be cancelled by the Landlord/Lessor for
reasons that the Tenant/Lessor having caused a material breach of
this Agreement and failing to remedy such breach to the satisfaction
of the Landlord within seven (7) days after receiving written notice
from the Landlord/Lessor and/or any other person occupying the
premises on the Tenant’s behalf shall immediately vacate the
premises and allow the Landlord/Lessor to take occupation thereof.

42
 CESSION AND ASSIGNMENT
PROHIBITION AGAINST SUBLETTING AND PARTING WITH POSSESSION
The Tenant shall not: -
1. Cede the rights or assign his obligations hereunder; or
2. Sublet the premises or any portion thereof; or
3. Part with possession of the premises or any portion thereof without the
Landlord/Lessor’s prior written consent, which in the case of paragraph x
shall not be unreasonably withheld.

DOMICILIUM CITANDI ET EXECUTANDI

ADDRESS AT WHICH NOTICES WILL BE SERVED
4. Each party chooses domicilium citandi et executandi as set out in x above
at which address all notice and legal process in relation to this Agreement or
any action arising therefrom may be effectually delivered and served.
5. Any notice given by one of the parties to the other which
5.1. Is delivered by hand to the addressee’s domicilium citandi et
executandi shall be presumed until the contrary is proven to have
been received by the addressee on the date of delivery; or
5.2. By email deemed to be received the same day.
6. Either party may be entitled on written notice to the other to change the
address of his domicilium citandi et executandi.
7. Tenants email address: ____________________
Landlords email address: __________________

IMPROVEMENTS
1. Any improvements made by the Tenant/Lessee on or to the premises during
the period of the lease become the property of the Landlord/Lessor on
termination of the lease and the Tenant/Lessee shall not be entitled to
remove any such improvement or claim from the Landlord/Lessor any
compensation in respect thereof.

43
2. Notwithstanding the provisions of clause 8 above, the Landlord/Lessor shall
be entitled at the termination of the lease to demand in writing that any
improvement or addition made by the Tenant/Lessee be removed at the
Tenant/Lessee’s cost. The Tenant/Lessee shall at his own expense and to
the satisfaction of the Landlord/Lessor repair all damages and/or defect
caused by such removal.

3. Should the Tenant/Lessee fail to comply with a demand made by the

Landlord/Lessor in terms of clause 9 of this Agreement the Landlord/Lessor
shall be entitled, in addition to any other remedy or right available to him in
terms of this Agreement, to have the relevant improvement and/or addition
removed and to recover the cost thereof from the Tenant/Lessee including
the cost to repair of all damages and/or defect caused by such removal.

DEFECT AND MAINTENANCE

4. It is hereby recorded that at the time of the conclusion of this Agreement the
premises are in a good state of repair and condition and that all keys, locks,
glass windows, electrical installations, sanitary ware, sewerage pipes, water
taps, geysers and other appurtenances including all the moveable items
specified in the inventory annexed hereto are likewise in good order and
condition.
5. Should the Tenant/Lessee at the time of taking occupation of the premises
discover any defects in the premises and/or any of the goods, he shall within
seven (7) days of such occupation give written notice of any such defect to
the Estate Agent or (if so directed in writing by the Estate Agent) at the time
of conclusion of this Agreement, to the Landlord/Lessor.
6. Failure on the part of the Tenant/Lessee to give such notice shall be deemed
to be an acknowledgement on his part that the whole of the premises
including all the goods are in good shape and proper state of repair and
condition.

44
7. It is specifically recorded that any notice given by the Tenant/Lessee in
terms of clause 13 shall not place any obligation on the Landlord/Lessor to
repair the premises or the goods concerned. The intention being that such
notice will serve only to record the state of repair in which the Tenant/Lessee
took occupation of the premises and the goods.

8. Furthermore, it is specifically recorded that save as is otherwise provided in

this agreement, the Landlord/Lessor shall not be obliged to effect repairs to
or to maintain the premises or the goods and the Tenant/Lessee shall not
be entitled to withhold the rental or to claim any refund in respect of rental
paid by reason of any defect whatsoever in the premises or the goods.

9. The Landlord/Lessor shall keep the structure of the premises including

exterior surfaces and irrigation systems (if any) and the roof in a state of
good repair but shall not be held liable by the Tenant/Lessee for any
damages which the Tenant/Lessee may suffer by reason of any repairs to
be effected by the Landlord/Lessor not being effected timeously or at all.

10. The Tenant/Lessee undertakes subject to clause 16 above to maintain at

his own cost the whole of the interior of the premises and the goods for the
full duration of the lease in the same state or repair as they were received
by him, reasonable wear and tear accepted, alternatively to reimburse the
Landlord/Lessor for the cost of replacing or repairing any breakages or
defects.

11. Notwithstanding the generality of clause 17, the Tenant/Lessee specifically

undertakes to: -
11.1. Keep and maintain all drains on the premises free from obstruction
and/or blockage; and
11.2. Keep electrical systems in good working order and condition; and
11.3. Clean the carpets and other floor coverings and tiles regularly, it being
understood that same shall be replaced completely at the expense of

45
 the Tenant/Lessee should they be damaged reasonable wear and
tear accepted.

12. The Landlord/Lessor and/or Estate Agent shall be entitled to inspect the
premises and to make such repairs and alterations as are deemed
necessary for the safety, preservation or improvement of the premises both
externally and internally.

13. Should the Tenant/Lessee fail to maintain the premises and/or goods in the
manner specified in this clause, the Landlord/Lessor shall be entitled, in
addition to any other rights or remedies available to him in terms of this
Agreement, to carry out the necessary maintenance work at his discretion
and to recover the full cost thereof from the Tenant/Lessee,

14. It is hereby recorded that the Landlord/Lessor shall ensure that the premises
shall be thoroughly cleaned including but not limited to carpets, curtains,
windows, kitchen, bathrooms and cupboards prior to the start date of this
Agreement.

OPTION TO RENEW/EXTEND LEASE

15. If the lease is not cancelled by either the Landlord/Lessor or the
Tenant/Lessee before the lease ends, the lease will automatically continue
on a month-to-month basis. If the Tenant/Lessee of the Landlord/Lessor
wish to cancel this month-to-month lease then the party that wishes to
cancel must give the other party at lease one (1) calendar months written
notice of the intention to end the lease.

16. The Landlord/Lessor will notify the Tenant/Lessee not less than forty (40)
business days before the lease period ends and inform the Tenant by way
of letter that will state the following: -
16.1. The date the lease period ends

46
 16.2. Any material changes in the lease that will apply to the renewal.
16.3. If the Tenant/Lessee does not wish to renew the lease as per clause
15 then he must give the Landlord/Lessor or Estate Agent notice of
this at least twenty (20) business days before the lease period
ends.

I, __________________________ hereby exercise the option to renew the

lease in respect of __________________ as contained in the agreement of
lease dated _____________.

SIGNED: _________________

RETURNING THE PROPERTY

17. The Tenant/Lessee agrees to return and surrender the leased property at
the expiration of the term or termination of this contract in as good condition
as reasonable wear and tear will permit and without any delay whatsoever
devoid of all occupants, furniture, articles and effects of any kind other than
such partitions, alterations, installations, additions or improvements
authorised by the Landlord/Lessor ownership over which accrues in favour
of the Landlord/Lessor in accordance with the provisions of clause x
hereof.

CANCELLATION OF LEASE
18. If the Tenant/Lessee cancels the lease with the Landlord/Lessor or Estate
Agent at any time prior to the lease starting date or before _________ by
giving one month’s written notice, the Tenant/Lessee agrees that the
Landlord/Lessor will be entitled to charge the Tenant/Lessee a maximum
charge of one (1) month rental as per clause xxx as cancellation penalty.

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19. This cancellation penalty is payable immediately by the Tenant/Lessee on
cancellation of the lease. The Tenant/Lessee agrees that this cancellation
penalty is fair and reasonable.

20. The Tenant/Lessee shall also be liable for re-imbursement to the

Landlord/Lessor for any commission paid upfront to the Estate Agent for
this lease agreement on a pro-rata bases determined by how many months
were remaining on this lease agreement at the time of cancellation of the
lease.

CONTRACTS
WHOLE AGREEMENT
1. This Agreement constitutes the entire agreement between the parties. No
agreements, undertakings, understandings, conditions, warranties or other
terms of any nature other than those contained in writing are binding by the
parties.

CONFIDENTIALITY (EMPLOYEE)
2. “Confidential information” means confidential information of the Company (or
clients of the Company) including but not limited to, all related secret
knowledge, technical information and specifications and other related
materials whatsoever description in which the Company has an interest in
being kept confidential.

JURISDICTION
3. The parties consent to the jurisdiction of the Magistrates Court in terms of
Section 45 of the Magistrates Act 32 of 1944 in respect of any proceedings
to this agreement.

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CITATIONS
Citing a minor:
1. Richard Brown, a minor, herein assisted by Glynis Brown his grandmother
and guardian.

One person on behalf of another:

2. Richard Brown, duly authorised under a written Power of Attorney by Andrew
Goldberg at ___________ on the ______ day of _________ 2023.

Citing a business
Company:
3. The Plaintiff is XYZ (Pty) Ltd, a company with limited capacity, duly
incorporated and registered according to the laws of South Africa and having
its registered office at 12 Hardy Street, Bryanston, Johannesburg which is
within the jurisdiction of this Honourable Court

Close Corporation:
4. The Plaintiff is Di Gibson Training Consultants CC, a close corporation duly
registered according to the Close Corporation Act 69 of 1984 and which
carries on its business at 16 Love Street, Sandton, Johannesburg which is
within the jurisdiction of this Honourable Court

Partnership:
5. The Plaintiff is XYZ partnership, a partnership carrying on business as
training consultants at 92A Placid Road, Hurlingham, Johannesburg which
is within the jurisdiction of this Honourable Court. The partners are:
1) James Reddy, an adult male businessman currently residing at 1 Small
Street, Johannesburg; and
2) Di Gibson, an adult female instructional designer currently residing at 89
Fox Street, Johanneburg

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Trusts:
6. The Plaintiff are Peter Gibson and Brian Gibson, both adult major male
advocates of 77 Alex Gross Chambers, 99 Commissioner Street,
Johannesburg who sue herein in their representative capacities as trustees
of ABC Trust.

The Court:
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

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 SELLING MOVEABLE PROPERTY
OWNERSHIP
1. It is agreed that the ownership of the vehicle remains vested with the Seller
until the purchase price is paid in full.

2. Further, the Purchaser shall ensure that the motor vehicle is insured at all
times and that proof thereof is submitted to the seller prior to the purchaser
taking possession of the vehicle.

SEVERABILITY (SEPERATING) OF PROVISIONS

3. Should any clause be unenforceable or part of the clause be
unenforceable it will not affect the enforceability of the contract/agreement
unless this severance would render the contract/agreement unlawful.

VARIATION
4. This contract may not be varied, added to, or cancelled by agreement
unless otherwise agreed to in writing between the parties.

VAT
5. VAT is payable by a registered vendor on all goods/services supplied on
any imported goods/services.

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 SURETYSHIPS
DE DUOBUS VEL PLURIBUS REIS DEBENDI
1. The Creditor repudiates the exception of de duobus vel pluribus reis
debendi against surety and co-principle debtor making them jointly and
severally liable.

BENEFICIUM ORDINUS SEU EXECUSSIONIS

2. The Creditor repudiates the exception of beneficium ordinis seu
execussionis and can take immediate action against the surety.

BENEFICIUM DIVISIONIS
3. The Creditor repudiates the exception of beneficium divisionis and can
hold one surety liable for the entire debt.

INDEMNITY CLAUSE
4. Subject to an upon the terms and conditions of this Agreement the
Company shall indemnify and hold harmless the indemnified party in
respect of any and all costs, claims, losses, damages and expenses
which may be incurred or suffered by the indemnified party as a result of
or arising from prosecution, defending, settling or investigating.

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 CESSIONS
EXAMPLE: TRANSFER AS SECURITY
1. Made and entered into between: -
JOE BLOGGS, a Director of Bloggs & Bloggs duly authorised and
hereinafter called the cedent

and

DI GIBSON hereinafter called the cessionary.

WHEREAS the cedent agrees to grant security for its indebtness to the
cessionary arising from an overdraft facility granted by the cessionary to
the cedent; and

WHEREAS the cedent has agreed to cede as security its book debts
both present and future.

NOW THEREFORE:
1.1. The Cedent cedes its cessionary right, title and interest in all its
book debts as security for the above indebtness.
1.2. The cession shall be in force until the cedents indebtness to the
Cessionary has been extinguished by payment or other form
1.3. The Cedent shall whilst the cession is in force deliver to the
Cessionary a list of all the cedents debtors which much reflect
their names, addresses and the amount of indebtness

1.4. NOW THEREFORE

The Cessionary agrees:

1.4.1. To not cede the rights ceded to it

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 1.4.2. To not notify the debtors of the cession until the debt falls
due and only once the Cedent is unable to pay
1.4.3. That it will pay any surplus of the claims against the
Cedents debtors back to the Cedent
1.4.4. That it will cede back the rights to the Cedent once all
claims are settled.
2. The Cedent authorises the cessionary during the cession to give notice to
both present and future debtors of the cedent.

SIGNED AT __________ ON THIS THE _____ DAY OF __________ 2023.

_______________
CEDENT
SIGNED AT __________ ON THIS THE _____ DAY OF __________ 2023.

_______________
CESSIONARY

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 PARTNERSHIPS
INITIAL CONTRIBUTION
1. Both partners contribute R50,000.00 (fifty thousand Rand) in cash to the
capital of the partnership which is payable within seven (7) days of the
signing of this Agreement.

DISOLUTION/TERMINATION
1. Death/Insolvency
The partnership will automatically dissolve upon: -
a) The death of a partner
b) The voluntary or compulsory sequestration of the partnership
2. Giving notice
Each partner will be entitled to dissolve the partnership by giving three (3)
months’ notice of termination to the other partners and shall state the
reasons for such termination
3. Breach
Each partner can terminate the partnership in the event of: -
3.1. A breach of a material term by a partner
3.2. Mental and physical incapacity of a partner
3.3. Misconduct by a partner breaching good faith
3.4. Conviction of a partner for theft, fraud, forgery etc
4. Retirement
4.1. Each partner can retire from the partnership by giving no less than
six (6) months prior written notice to the other partners
4.2. A partner shall automatically retire at the end of the financial period
in which s/he reaches the age of 65 years
5. Drawings/Division of profit and loss
5.1. The Partners shall share in all profit and loss
5.2. The Partners shall be entitled to draw an agreed monthly amount as
remuneration for their services, determined from time to time

55
5.3. Profits remaining after remuneration as determined by the auditors
shall accrue to the partners every six months.

56
 INSOLVENCY ACT – S34
NOTICE PUBLISHED IN THE NEWSPAPER
1. Notice, in terms of Section 34 of the Insolvency Act, is hereby given that
Mary Smith intends to sell her business trading as Smith and Co carried on
at 27 Sarel Cilliers Street, Bellville, Western Cape to Brian Brown after a
period of 30 days from the date of the last publication of this notice.

DATED AT ________ ON THIS ____ DAY OF _________ 2023.

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 SALE OF BUSINESS AS A GOING CONCERN
Should contain the following clauses:
1. Acceleration clause – full amount becomes due and payable when
Purchaser fails to comply with conditions
2. Restraint of trade – normally includes good will. Prevents seller from
starting new business close by.
3. Stocktaking – sale includes all stock so purchaser should be present
4. Suspensive conditions e.g. liquor license (Includes licenses and lease
agreements)
5. Sale and purchase clause
6. Purchase price
7. Purchase method
8. Assets & liabilities
9. Delivery of assets
10. Effective date
11. Voetstoots
12. Breach
13. Costs

VAT CLAUSE
1. The Purchaser and the Seller hereby reciprocally warrant that they are at the
date of signature duly registered as VAT vendors.
2. It is agreed between them that:
2.1. The enterprise is a going concern
2.2. The Purchaser and Seller have both agreed that the enterprise is
income producing
2.3. The consideration agreed on is inclusive of VAT at zero-rate
2.4. That should the Minister of Inland Revenue shall deem VAT payable,
it shall be paid

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 FEES AND MANDATES:
Include the following headings:

COMMUNICATION AND CONFIDENTIALITY:

COVERING LAW:

TERMINATION OF MANDATE:

ACCEPTANCE:

FICA

INDEMNITY

DOMICILIUM ET EXECUTANDI

CONFIDENTIALITY AND COMPLIANCE WITH THE PROTECTION OF

PERSONAL INFORMATION ACT 4 OF 2013 (POPIA)

RETENTION AND DESTRUCTION POLICY

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