March 2019 Flashcards
Draft the clause(s) in an agreement for the sale
of a business suspending the entire sale
agreement until such time as adequate
arrangements have been made with the landlord
of the premises from which the business is
conducted to secure the tenure of the business
in the premises. The clause(s) should allow for
either:
1.1 Cession and delegation of the rights and
obligations in terms of the existing lease
from the tenant to the purchaserwith the
consent of the landlord; or (5)
1.2 The conclusion of a new lease agreement
between the purchaser and the landlord
together with the cancellation of the
previous lease. (5)
- This agreement shall be of no force or effect unless within 30 days reckoned from the effective date pr any extention of such date by mutual agreement in writing:
- 1 the sellers rights and obligations ito the existing lease agreement concluded between (A) as landlord and the Seller as tenant iro the premises are ceded and assigned from the Seller to the Purchaser with effect from the effective date with the consent of the landlord; or
- 2 the existing lease agreement between the landlord and the Seller is cancelled and a new lease agreement is concluded between the Purchaser and the landlord on terms and conditions which are substantially the same or mutually exclusive to both.
Mr A (who is shortly going overseas) wishes to
incorporate a private company (B) with a specific
name which company is to take transfer of a
business stand which is currently registered in
his own name. He consults you to assist him.
2.1 List the documents he must sign to enable
you to effect the incorporation of the
private company, with CIPC.
(3)
- Application to Reserve a Name COR 9.1 (s11 &12 of CA)
- Notice of incorporation COR 14.1 (S13 of the CA)
- Memorandum of Incorporation (s13 of the CA)
- Power of Attorney (optional)
List the forms of profit companies that
can be formed and incorporated in terms
of the Companies Act.
- State Owner Company
- Private Company
- Personal Liability Company
- Public Company
You explained to Mr A that he could now
sign the deed of sale relating to the stand
a) as seller; and also b) as trustee for a
company (B) to be incorporated as
purchaser.
What steps would after
incorporation be required to arrive at a
valid deed of sale?
Within three months after the date the company was incorporated the board of directors of the company must ratify the pre-incorporation contract
if the board of directors has neither ratified nor rejected the agreement within 3 months from date of incorporation the company will be regarded as having ratified the agreement
What are the marital regimes in SA? How one goes about achieving them and which system would you recommend?
In principle the main division of marital regimes is between those in and those out of community of property:
Marriages are ipso iure in community of property if no ANC is concluded before the marriage. There is only joint estate. Either spouse can in principle act obo the joint estate but there are many exceptions ito the Marital Property Control Act.
To achieve a marriage out of community of property the parties must enter into an ANC before a notary public. the marriage will be subject to accrual unless it is excluded. while in either case the parties retain their separate estates throughout the marriage. the accrual means that at the end of the marriage the growth or accrual in the two estates are shared equally.
They enquire what the effect on Mrs B's assets would be if Mr A were to be sequestrated after marriage. Write her a letter to advise her fully of the potential risks and what she would have to do to protect her interests and to enforce her rights in such an event. (10)
- if the parties marry icp the whole joint estate will normally be subjected to any sequestration
- if out of community of property the sequestration of A would vest the assets of B in the Master and later A’s trustee.
- the solvent spouse would usually have to apply on affidavit to have her assets released by providing evidence of ownership
- Insolvency Act refers to assets which the solvent spouse acquired:
- before the marriage under a marraige settlement by title valid against creditors or with the proceeds of the above. the trustee cannot retain assets because he has a claim under some other provision
- must keep sound records of assets and transactions.
In order to avoid possible risks Mrs
considers creating an intervivos trust for
her minor children. With whom would such
a trust be registered, what documents must
be lodged and what further information
must be submitted to the authorities to
obtain registration?
The trust will be registered with the Master of the HC in the area where resides. She must lodge:
- two copies of the deed of trust
- letter from an auditor to act
- acceptance of trust by the trustees
further provide:
- name of bank where trust will operate its account
- name and address of person who will keep & maintain the records of the trust
- occupation of the trustees
- whether or not the trustees have any previous experience as trustees.
The Master also has a number of further requirements should he be requested to waive his right to insist on security by the trustees.
An old school friend who is getting married asks
you what the position is relating to the rights of
spouses married in community of property to
deal with the assets of the joint estate.
5.1 Explain the general principles.
Both spouses have equal powers wrt disposal of assets of the joint estate, the contracting debts which lie against the joint estate and the management of the joint estate.
Any of them may perform any juristic act wrt the joint estate without the consent of the other subject to many exceptions (s14 & 15 if the act).
Name at least six (6) exceptions to the general principles of being married in community of property - dealing with the assets of the joint estate
for the following you need the written consent:
- alienation, burdening of or giving a real right in the immovable property of the joint estate
- alienation, cession, pledge of shares, insurance policies, mortgage bonds, fixed deposits or any other similar assets or any other investment by the spouse in a financial institution
- alienation or pledge of any jewellery, coins, stamps, paintings or anything in joint estate held as investments
- withdrawal of money held in bank in name of the other spouse
- credit receiver entering into a credit agreement as defined in the credit agreement act no 75 of 1980
- bind himself/herself as surety
need verbal consent:
- alienation of furniture or stuff from common household
- damages or loss of income
- donating to another person an asset of value forming part of the joint estate
Your client is considering purchasing a block of
properties in a residential area for the purpose
of demolishing the houses thereon and
developing the whole block by constructing
offices thereon which he intends to lease. Before
your client can develop the properties as he
proposes, he will have to successfully apply to
the local authority for the rezoning thereof.
6.1 Draft the clauses which your client should
insist be included in the deeds of sate to
protect him if the application for the
rezoning is not successful and/or if he is
not successful in purchasing all the
properties in the block. (12)
6 .2 The rezoning is completed, the properties
are transferred into our client’s name and the development is completed.
Certain of the prospective tenants of the
offices are private companies and your
client is worried that they may not pay
the rent. Draw the clause in the lease
agreement which will give your client the
right to recover outstanding rentals from
the directors of the companies. (5)
This sale is subject to the following suspensive conditions namely:
- the purchaser purchasing all of the properties listed below ( or in the block of properties in which this property is situated) within ____ months of the signature of this deed of sale
if either of the said suspensive conditions is not fulfilled this sale shall be null and void and neither party shall have any claim against the other arising from this agreement and any deposit paid shall be refunded to the purchaser.
- The successful rezoning of all the properties purchased from residential to business within __ months of the conclusion of this sale.
6. 2 By the signature of this lease ___ and ___ being directors of the lessee company hereby bind themselves jointly and severally to the lessor as sureties and co-principal debtors in solidum with the lessee for the latters timeous performance of all of tis obligations in terms of this lease.
If you are not sure whether some or
other step you propose taking is ethically
permissible, how would you go about
getting an answer? (2)
Consult with relevant authorities
then senior colleague
ask regional council
What will happen if you fail to pay your
membership fees to the Legal Practice
Council?
You will not be allowed to receive trust money because you do not qualify for a fidelity fund certificate
What is the purpose for which the
Attorneys Fidelity Fund was established?
(currently the Legal Practice Fidelity
Fund).
The fund was established to reimburse members of the public who suffer financial loss due to the theft by an attorney his employee or candidate of money or property entrusted to that attorney
Why would you advise our client that he
should draw up a Will? (2)
It will ensure that the wishes of the deceased are known and that the administration of the estate takes place speedily and that disputes are avoided.
