LE ROUX VIVIER ATTORNEYS

What is a Memorandum of Incorporation? A Memorandum of Incorporation (“MOI”) is the constitutional document of a company. It regulates important aspects of the relationship between the company, its shareholders and its directors, as well as how the company is governed. In simple terms, it is the company’s internal rulebook or constitution. The importance of the MOI is recognised in section 15 of the Companies Act 71 of 2008 (“the Act”), which permits an MOI, within the li

Agreements often make implementation dependent on something happening first. A purchaser may need to obtain finance, a board or shareholder may need to approve the transaction, or a third party may need to provide written consent. These provisions are generally described as suspensive conditions (and are also often called conditions precedent). They can determine whether a transaction proceeds at all. Careful drafting and a proper understanding of their effect are therefore

South Africa’s law governing trusts may soon undergo its most significant overhaul in decades. The Regulation of Trusts Bill, 2026 (“the Bill”) proposes to repeal and replace the Trust Property Control Act 57 of 1988, introducing a considerably more detailed regulatory framework for the creation, administration and oversight of trusts. Cabinet approved the Bill for publication for public comment on 29 July 2026, describing its objectives as modernising the law of trusts, st

Most commercial contracts contain a clause dealing with what happens if a party breaches its obligations: a fixed sum payable on late delivery, forfeiture of a deposit on cancellation, or a lump-sum "breakage fee" if a tenant or purchaser walks away. These are penalty clauses, and while parties often assume they will simply be held to their bargain, our law gives the court a specific power to intervene where a stipulated penalty goes too far. That power comes from a short but

Did you know that judicial case management is a court procedure where the pace of litigation is directly controlled by the Judge? It aims to shorten the length of proceedings by hosting conferences to settle issues in dispute, which tend to cause delays in the finalisation of the proceedings. The registrar will give notice of the date, time and place of the conferences to be held before a Judge, and confirm if the conferences are in person or electronic. What to expect During

The law is often more nuanced than people think. Here are a few interesting legal facts that may surprise you. An agreement is not always a contract Not every agreement is legally enforceable. For an agreement to become a binding contract, the parties must intend to create legal obligations (amongst the other requirements for a valid contract). Example: If two friends casually agree to meet for lunch, that is an agreement, but not a contract. By contrast, an agreement to se

When a tenant signs a lease agreement, they are not merely paying for four walls and a roof. At the heart of every lease – whether for a humble flat or a bustling commercial restaurant – lies a fundamental legal protection: the right to undisturbed use and enjoyment of the leased premises, known in our law by the Latin expression commodus usus. Understanding this right is essential for any landlord or tenant navigating a lease relationship. What Does "Undisturbed Use and En

Starting a business is exciting, but one of the first legal questions every entrepreneur should ask is: what type of legal structure should I use? The answer matters. The legal structure you choose can affect your personal liability, tax position, funding options, compliance obligations, management and decision-making powers, succession planning and the way you bring investors into the business. In South Africa, business owners commonly operate through sole proprietorship

Expropriation without compensation ("EWC") has been one of the most debated legal and political issues in South Africa over the past decade, generating strong views both for and against the concept. This article summarises the current legal position as objectively as possible, including the relevant constitutional provisions, the Expropriation Act 13 of 2024, and the current legal challenges to the legislation. The Constitutional Framework Section 25 of the Constitution pro

Introduction In establishing a township consisting of freehold erven which are individually owned, a developer is guided by and obliged to follow the Conditions of Establishment which are prescribed by the relevant local authority, within whose area the proposed township is located. The local authority will, in the case of a private or gated township, impose a condition that the developer is to establish a Home Owners Association (HOA) to, inter alia, take over certain servic

Having a Maintenance Order does not always guarantee payment. If payments fall into arrears, you may need to look into the various methods of enforcing the Maintenance Order. Section 26(1) of the Maintenance Act 99 of 1998 ('the Act') sets out three enforcement mechanisms available to a maintenance beneficiary once a debtor has failed to pay: execution against property, attachment of emoluments, and attachment of debt.[1] This article looks more closely at one of these mechan

As mentioned in our previous article titled Director’s duties and Personal Liability, one of the most important principles in company law is that a company is a separate legal person. This means that a company exists separately from its directors and shareholders. It can own property, enter into contracts, sue and be sued, and incur debts in its own name. This principle is one of the main reasons people register companies. It allows business owners to trade through a sepa

As a general rule, a patient must provide informed consent before any medical treatment or procedure may be performed. This principle was recognised in the landmark case of Stoffberg v Elliot 1923 CPD 148, and remains a fundamental component of South African medical law. The requirement for informed consent is now codified in the National Health Act 61 of 2003 ("the Act"). What is Informed Consent? The Act defines informed consent as consent for the provision of a specified h

A company is recognised in law as a separate juristic person. In simple terms, this means that it exists independently from the people who own and manage it. A company can own property, enter into contracts, incur debts, sue and be sued in its own name. One of the consequences of a company's separate legal personality is that, as a general rule, its rights, obligations, and liabilities are its own, and not those of its directors. In terms of section 1 of the Companies Act 71

The Gauteng Division of the High Court recently delivered an important judgment in Ramalepe and Another v Minister of Justice and Constitutional Development and Others [2026] ZAGPPHC 443, in which it declared section 25(3)(a) of the Legal Practice Act 28 of 2014 unconstitutional. The Legal Practice Act regulates the admission and practice of both attorneys and advocates under a single statutory framework. Although both professions are admitted as legal practitioners, section

What is the Alienation of Land Act, 68 of 1981 This Act regulates the sale, exchange, and donation of immovable property in South Africa. When buying or selling immovable property, various legal processes must be followed before ownership can be transferred from one person to another. The mere payment of money does not automatically make the purchaser the new owner of the immovable property. Unfortunately, many people do not understand that a legal process must be followed to

Introduction As a general rule, contracts are enforceable. After all, the very purpose of a contract is to create legally binding rights and obligations between parties. However, one important exception exists: an illegal contract is unenforceable. This principle is absolute. An illegal contract cannot be enforced by either party, regardless of whether one or both parties have already performed in terms of the agreement.[1] While the law may, in certain circumstances, provide

There are several important milestones that people experience throughout their lives. One of the most significant, exciting, and often daunting milestones is purchasing immovable property. As property ownership is a substantial financial commitment, many purchasers do not have sufficient cash available and therefore apply for a mortgage bond through a financial institution. A mortgage bond is a document based on an agreement wherein the mortgagor borrows money from the mortga

On 16 April 2026, the Minister of Human Settlements published the Draft Prevention of Illegal Eviction from and Unlawful Occupation of Land Amendment Bill, 2026 ("the Bill") for public comment. The proposed amendments represent the most substantial reform of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 ("PIE") in many years. Whilst several of the amendments merely codify principles already developed through our courts, others introduce en

Have you ever been told that a debt is too old to collect, or that it has simply 'fallen away'? This concept is known in law as prescription — a legal time limit on how long a creditor has to claim payment. To better understand prescription, consider the following examples: Example 1: A simple personal loan Assume you lend a friend R10,000.00 and agree that they must repay you by 1 June 2026. If they do not pay on that date, the debt is immediately due. Prescription would gen