Nov 2020 Flashcards
An employer may dismiss employees due to operational requirements on what must these requirements be based on in terms of the Labour relations act
The act defines operational requirements as based on
- economic
- technological
- structural
- the needs of the employer
What are the essential matters on which parties must agree in order to create a valid partnership
The purpose must be to conduct a business in order to earn profit each partner must contribute to the partnership and share in the profits
The electronic communications and transactions act makes electronic signatures possible in some cases name four legal documents in which an electronic signature would not suffice
The following may not be completed electronically
- agreement for the sale of immovable property
- leases of land exceeding 20 years
- wills
- bills of exchange
Explain the purpose and objectives of business rescue
The objective of business rescue is to develop and implement a plan to rescue the company by restructuring its affairs business property Debt and other liabilities and equity in a manner that maximises the likelihood of the company continuing to exist on a solvent basis or if that is not possible for the business to continue in existence to implement a plan whereby better results are achieved for the companies creditors;
or shareholders than would result from liquidation
the purpose of business rescue is to facilitate the rehabilitation of a financially distressed company in terms of section 128(1)(f) a company is regarded as financially distressed if it appears reasonably unlikely that the company will be able to pay all of its debts as They fall due And payable within that immediately ensuing six months or if it appears to be reasonably likely that the company will be come insolvent with and immediately ensuing six months
How can business rescue proceedings be initiated
Business rescue proceedings are initiated in one of two ways it can be commenced either by voluntarily by way of resolution of the board of directors of the company is bored or by applying for a court order to place the company under supervision and commence business rescue proceedings
Who can object to voluntarily business rescue and on what grounds
Affected persons or shareholders; creditors; trade unions representing the companies employees as well as any employee is not represented by a registered trade union or the representatives of such employees.
An affected person may object to a business rescue resolution or the appointment of a business rescue practitioner at any time after the resolution but before the adoption of a business rescue plan.
On what grounds can you object to business rescue
There is no reasonable basis for believing the company is financially distressed
there is no prospect of rescuing the company
the company has failed to satisfy the procedural requirements as set out in section 29
Business rescue places a moratorium on most legal proceedings. in which circumstances may proceedings commence or proceed?
The commencement of BR (after valid board resolution or court order) places a moratorium on most legal proceedings against the company.
During BR proceedings, no legal proceedings including enforcement action, against the company or in relation to any property belonging to the company or lawfully in its possession, may be commenced or proceeded with in any forum except:
- with written consent of the practitioner
- leave of court & in acc with any terms the court considers suitable
- as a set off against any claim made by the company in any legal proceedings, irrespective whether those proceedings commenced before or after the BR proceedings began
- criminal proceedings against company or any of its directors
- proceedings concerning any property or right over which the company exercises the powers of a trustee
Is it permissible for a legal practitioner to act as such in the collection of a debt due to a person of her she is the curator bonis defended/ not defended
You may act unless some conflict is apparent, it is wiser to appoint an independent attorney
Is it permissible for a legal practitioner to defend a claim against a deceased estate in which he is the executor
You may but it is not desirable
Is it permissible for a legal practitioner to act for both parties to an ANC contract
You may act unless negotiations become tricky, bargaining power is clearly unequal or if assets are vastly different
Is it permissible for a legal practitioner to sue a colleague if so how if not why not
You may be professional court to see requires you to personally inform the colleague beforehand
Is it permissible for a legal practitioner to Start acting for a client who is unhappy with the services of a colleague in a litigious matter if so if not why not
You should not start before speaking to the colleague regarding the release of the payment of his costs unless delay would cause irreparable harm
Is it permissible for a legal practitioner to divulge confidential information about a client to client executive curator or trustee
Yes for the executor
yes for the curator
usually not for the trustee
in the first two cases it would normally be in the interest of the client
in the third it may be detrimental
Is it permissible for a legal practitioner to act for both parties in a divorce matter with the parties have separate assets, income, no children and occupy least property if they consent in writing being aware of the potential conflicts
Yes there should not be a dispute about acids custody does not arise if unforeseen confident does arise you would withdraw from both parties in principle you may act
