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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 essential. What is a suspensive condition? A true suspensive condition makes the operation of all or part of an agreement dependent upon the occurrence of a future uncertain event. Until that event occurs, the obligations that depend upon it are suspended. If the condition is fulfilled in the manner and within the period required by the agreement, those obligations become operative. A familiar example is an agreement for the sale of immovable property made subject to the purchaser obtaining mortgage finance by a specified date. The parties have entered into a contractual relationship, but the obligations dependent on the finance condition remain suspended until it is fulfilled or, where permissible, waived. The expressions “suspensive condition” and “condition precedent” are frequently used interchangeably in South African law. In this article, “suspensive condition” is used for both. The word “condition” is also used more broadly in contracts to describe an important or material contractual term. A material term is not necessarily a true suspensive condition: a term ordinarily imposes an obligation capable of performance and breach, whereas a true condition makes the operation of the contract, or part of it, dependent upon an uncertain event. The correct classification therefore depends on the substance and effect of the clause, not simply on whether the drafter has labelled it a “condition”, “condition precedent” or “suspensive condition”. What is a resolutive condition? A resolutive condition operates in the opposite direction. The agreement, or the relevant obligations, operates immediately but comes to an end if a specified future uncertain event occurs. For example, a lease might provide that it takes effect immediately but will terminate if a specified operating licence is finally refused. The tenant may occupy and trade while the application is pending; if the licence is refused, the resolutive condition is triggered, and the lease terminates in accordance with its terms. Under a suspensive condition, performance is held back pending the event whereas under a resolutive condition, the agreement operates until the event occurs. Why are suspensive conditions important? Their function is best illustrated by a practical example. Assume that shares in a company operating a franchised business are sold to a third party, but the franchise agreement requires the franchisor’s prior written consent to a change of control. If the share sale simply requires transfer on a fixed date, without making the franchisor’s consent a suspensive condition, implementation could place the company in breach of the franchise agreement or materially undermine the value of the business being acquired. If the consent is made a suspensive condition, the parties can conclude the agreement while making implementation dependent on that consent. If consent is obtained, the transaction proceeds. If it is refused and the condition cannot be waived, the transaction does not proceed. Suspensive conditions therefore allocate risk by allowing parties to commit to a transaction without requiring implementation before essential legal, regulatory, financial or commercial prerequisites have been satisfied. Common examples The appropriate conditions will depend on the transaction. Common examples include: a purchaser obtaining finance or a mortgage bond; board or shareholder approval of a transaction; regulatory, competition or governmental approval; consent from a franchisor, landlord, lender, supplier or other contracting party where a transaction or change of control requires consent; compliance with rights of first refusal or pre-emptive rights; completion of a due diligence investigation; the incorporation of a company and, where relevant, the adoption or ratification of a pre-incorporation arrangement; completion of another interdependent transaction; and the passing of resolutions and satisfaction of statutory requirements under the Companies Act 71 of 2008. Statutory approvals or corporate resolutions may also be genuine prerequisites to implementation. Where the law requires a particular approval or resolution before a transaction may be implemented, the agreement should identify that requirement clearly and deal expressly with the consequences if it is not obtained. What happens while the condition is outstanding? It is sometimes said that there is “no contract” until a suspensive condition is fulfilled. That is too simplistic. In Mia v Verimark Holdings (Pty) Ltd, the Supreme Court of Appeal described the conclusion of a contract subject to a suspensive condition as creating a “very real and definite contractual relationship” between the parties, while the exigible content dependent on the condition remains suspended. The formulation has also been applied in later cases. This matters in practice. Provisions intended to operate from signature may already bind the parties, such as confidentiality obligations, duties to cooperate in procuring fulfilment, dispute-resolution provisions, and the provisions governing the condition itself. A well-drafted agreement should therefore identify which provisions apply immediately and which obligations become operative only once the condition has been fulfilled or validly waived. What happens if the condition is fulfilled? If a suspensive condition is fulfilled within the stipulated period, the suspended obligations become operative in accordance with the agreement. In Africast (Pty) Ltd v Pangbourne Properties Ltd, the Court explained that a contract containing a suspensive condition is enforceable upon conclusion although some obligations are postponed pending fulfilment. Once fulfilled, the contract and mutual rights are treated as operating with the legal effect attributed to fulfilment. Remo Ventures Pty Ltd v Cecile Van Zyl and Others later restated these principles. For drafting purposes, it is often useful to define an “Effective Date” by reference to the date on which the last suspensive condition is fulfilled or validly waived. Payment periods, closing obligations and other implementation timelines can then run from a clearly identifiable date rather than from signature. What happens if the condition is not fulfilled? If a suspensive condition is not fulfilled within the stipulated period, and is neither validly waived nor extended in time, the obligations dependent upon it fall away. If the condition suspends the whole transaction, the agreement ordinarily lapses in accordance with its terms and the applicable law. Africast illustrates the importance of the deadline: the agreement lapsed because the stipulated condition was not fulfilled timeously. More recently, in Maria Luisa Palma Codevilla v Kennedy-Smith NO, the Court confirmed that once an agreement has lapsed for non-fulfilment of a suspensive condition there is nothing left to “revive”. A later waiver or purported extension cannot resurrect the lapsed agreement. If the parties still wish to transact, they must conclude a new agreement, which may of course adopt the same commercial terms but must deal afresh with the failed condition and comply with any applicable formalities. A deadline for fulfilment is therefore not merely administrative. If the parties need more time, any extension should be agreed before the deadline expires and in the manner required by the agreement. The agreement should also regulate what happens to deposits, documents, possession, confidential information and any performance already rendered, and identify the provisions intended to survive a lapse. Fictional fulfilment: a party cannot necessarily engineer failure A party may not always be entitled to rely on non-fulfilment where it deliberately caused the condition to fail. South African law recognises the doctrine of fictional fulfilment. Broadly, where the party against whom the condition operates deliberately prevents its fulfilment with the required intention of frustrating the obligation, the law may in appropriate circumstances treat the condition as fulfilled against that party. The doctrine is not automatic. Intention and causation must be established, and fictional fulfilment may be inappropriate where the outcome depends on an independent public or third-party discretion. For example, suppose a sale is subject to municipal approval of a land-use application, and the seller is obliged to take reasonable steps to pursue it. A deliberate failure by the seller to submit documents within its control may raise questions about prevention of fulfilment, but the court cannot simply deem the municipality’s independent approval to have been granted where the statutory decision requires the municipality to consider the public interest and third-party rights. Hanuscke v Kungwini Local Municipality illustrates this distinction: the outstanding conditions depended on a public process involving interests beyond the contracting parties, and there was no room on those facts for fictional fulfilment. When may a suspensive condition be waived? The starting point is to determine for whose benefit the condition was inserted. If a condition is inserted exclusively for the benefit of one party, that party may generally waive it, provided the condition is legally capable of waiver and the agreement does not provide otherwise. A common example is a finance condition inserted solely for the purchaser’s protection: a purchaser who can fund the purchase independently may, in principle, elect not to insist on the specified finance. If the condition benefits both parties, one party cannot ordinarily dispense with it unilaterally. Nor can a mandatory statutory requirement, or a consent that the law or a third-party contract actually requires, simply be wished away by describing it as waived. Timing is critical. A waiver must ordinarily occur before the deadline for fulfilment. Once the agreement has lapsed, there is no subsisting agreement or right to waive. If the parties still wish to proceed, a new agreement is required. Even if the agreement is silent on waiver, a condition inserted solely for one party’s benefit may in principle be waivable. The safer course is to state expressly which conditions may be waived, by whom, by when and in what form. How should suspensive conditions be drafted? A good suspensive-condition clause should do more than say that an agreement is “subject to” something happening. It should address the mechanics of the condition with precision. In particular, the agreement should identify: the event or approval required for fulfilment; whether the condition suspends the whole agreement or only specified obligations; the party responsible for taking the necessary steps; whether that party must use reasonable endeavours, best endeavours or some other defined standard; the deadline for fulfilment; what evidence will demonstrate fulfilment; for whose benefit the condition is inserted; whether the condition may be waived and, if so, by whom; the form and deadline for any waiver; how and when the fulfilment date may be extended; the consequences of non-fulfilment; and which provisions remain binding while the condition is pending and after lapse. The event should also be stated objectively wherever possible. Expressions such as “subject to satisfactory arrangements” or “subject to approval” can create disputes if the agreement does not identify whose satisfaction or approval is required, the standard to be applied, and the time within which the decision must be made. The practical lesson Suspensive conditions are often short clauses with consequences far greater than their length suggests. Poor drafting can leave parties uncertain about whether an agreement is operative, whether an approval was obtained in time, whether a condition can be waived and whether the transaction has lapsed. The safest approach is to identify genuine prerequisites to implementation at the drafting stage and regulate fulfilment, waiver, extension, non-fulfilment and survival expressly. The important question is not the label attached to the clause, but what it actually does and what the parties intend to happen if the uncertain event does, or does not, occur. This article is intended as general information on South African contract law and does not constitute legal advice. The legal effect of any condition depends on the wording, context and applicable statutory framework of the particular agreement. Fraser Stockley BCom Law; LLB Partner at Le Roux Vivier Attorneys Disclaimer: The views expressed in this article are those of the author(s) and do not necessarily reflect the views of the firm. This content is provided for general information only and does not constitute legal advice. While every effort is made to ensure accuracy, the law may change and its application depends on the specific facts of each matter. Readers should seek professional legal advice before acting on any information contained herein. The firm and the author(s) accept no liability for any loss or damage arising from reliance on this content.

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, strengthening accountability and compliance, enhancing the oversight role of the Master of the High Court, and providing greater protection to beneficiaries. Importantly, the Bill is not yet law. It was published for public comment on 7 August 2026, and interested parties currently have until Friday, 11 September 2026 to submit written comments to the Department of Justice and Constitutional Development. There is therefore no fixed date on which the proposed changes will take effect. The Bill must still proceed through the legislative process and may be amended before it is enacted. As presently drafted, the eventual Regulation of Trusts Act will come into operation on a date determined by the President by proclamation in the Government Gazette. Why is the law changing? The present Trust Property Control Act was enacted in 1988 and has not undergone a comprehensive review during the intervening decades. According to the Department of Justice and Constitutional Development, the Bill is intended, amongst other things, to address weaknesses in the existing framework relating to trustee accountability, the Master's ability to exercise effective oversight, the protection of beneficiaries and transparency regarding the control of trust property. It is also intended to better align South Africa's trust regime with Financial Action Task Force (“FATF”) requirements concerning money laundering and related financial crime risks. The Bill seeks to consolidate and strengthen an already increasingly compliance-driven trust regulatory environment, while introducing additional reporting, enforcement and oversight mechanisms. What are the most important proposed changes? More formal requirements for creating a valid trust: The Bill expressly provides that a trust is created where the founder, clearly and with reasonable certainty, indicates an intention to create a trust, identifies the trust property, identifies the beneficiaries or classes of beneficiaries (or the object of the trust), and appoints a trustee or provides for the appointment of one. The object must be lawful, and a sole trustee may not simultaneously be the sole beneficiary. A court may declare a trust invalid where these requirements are not satisfied. The Bill places these requirements expressly on a statutory footing and provides specific consequences where they are not met. Greater powers for the Master of the High Court: The Bill retains and expands the Master's supervisory role. The Master already has powers under the existing framework to require trustees to account and to produce records and documents, but the Bill introduces a more detailed statutory framework governing oversight, investigations, compliance and enforcement. The Bill also regulates the appointment of additional trustees in greater detail. In particular, where all trustees are beneficiaries, all trustees are related to one another, and the trust conducts business or trading activities with third parties, the Master may appoint an independent trustee where this is considered necessary to ensure the separation of control and enjoyment of trust property. The effectiveness of these expanded powers will, however, depend substantially on the administrative capacity of the Master's Offices. Additional regulatory responsibilities may improve oversight in principle, but without corresponding improvements in systems, staffing and turnaround times there is a risk that the Bill increases the compliance burden on trustees without producing an equivalent improvement in administration or enforcement. Trustee authorisation and disqualification: The Bill retains the existing principle that a trustee may not act without written authorisation from the Master, while setting out a more detailed statutory framework governing trustee authorisation and disqualification. It identifies categories of persons who may be disqualified from acting as trustees and continues the framework for a public register of persons disqualified from being authorised to act as trustees. Annual financial statements and annual returns: One of the Bill's more significant practical changes is the formalisation of financial reporting under trust legislation itself and the introduction of an annual return to the Master. The Bill expressly requires trustees to cause annual financial statements to be prepared, subject to an exemption where the trust falls below thresholds to be determined by the Minister and the trust instrument does not itself require financial statements. Although the present Trust Property Control Act does not impose an equivalent general statutory obligation, many trusts already prepare annual financial statements or annual administration accounts in order to comply with their trust deeds, accounting requirements and SARS obligations. In addition, trustees will be required to file a prescribed annual return with the Master and pay the prescribed fee. This return is separate from the trust's existing annual income-tax return to SARS and will therefore constitute an additional regulatory filing. Existing trusts will be required to file their first annual return within six months after commencement of the Act. Further formalisation of beneficial ownership requirements: Beneficial-ownership disclosure is not new. Trustees are already required to establish, record and lodge beneficial-ownership information with the Master. The Bill retains these obligations, adopts a broad definition of “beneficial owner” and requires changes to be recorded and lodged within 10 days. More detailed statutory record-keeping requirements: The Bill sets trustees' existing record-keeping duties out in greater detail and requires specified records to be retained throughout the trusteeship and for five years thereafter. These include the trust instrument and amendments, financial and accounting records, trustee resolutions, contracts and records relating to trust property and the appointment or removal of trustees. Clear separation of trust property: The Bill retains and restates the existing principle that trust property must be kept separate from a trustee's personal estate and must be clearly identified as trust property. It also continues the requirement that money received in a trustee's capacity as trustee be held in a separate account in the name of the trust. The Bill also provides a more detailed statutory framework for trustee investment decisions, including a prudent-investor standard and prescribed considerations relevant to investment decisions. It also consolidates existing requirements relating to dealings with accountable institutions. Compliance notices and personal administrative fines: One of the clearest practical changes introduced by the Bill is its structured administrative enforcement regime. The Master may issue a compliance notice where a trustee fails, amongst other things, to provide required contact details, account to the Master, submit requested financial statements, file an annual return or comply with beneficial-ownership requirements. Failure to remedy the non-compliance may then result in an administrative fine. This creates a distinct compliance-notice and administrative-fine mechanism within the new statutory framework. Crucially, an administrative fine imposed on a trustee must be paid personally by that trustee and may not be recovered from trust property. Significant criminal penalties: The Bill also retains severe criminal sanctions for certain contraventions, including fines of up to R10 million and imprisonment for up to five years in specified cases. Similar penalties already exist under the current Act, but the Bill combines criminal sanctions with the new compliance-notice and administrative-fine regime. What does the Bill mean for existing trusts? Existing trustees should review their trust deeds, governance procedures, financial records and beneficial-ownership information in preparation for the proposed annual return, financial-reporting requirements, shorter beneficial-ownership updating periods and new administrative enforcement regime. Will the Bill create additional red tape? Inevitably, yes. The Bill introduces additional filings, prescribed fees, shorter compliance periods and a new administrative enforcement regime. This is particularly significant because trusts already provide substantial information to SARS, the Master's Office and financial institutions. The proposed annual return to the Master therefore raises a legitimate question whether better information-sharing between State institutions could achieve some of the same objectives without duplicating compliance obligations. There is also a question of proportionality. Large trading trusts and comparatively simple family trusts do not necessarily present the same regulatory risks. A more risk-based approach may better balance transparency and accountability against the cost of compliance. Much will still depend on the regulations Certain details of the proposed regime remain to be prescribed by regulation, including the form of annual returns and applicable fees, the thresholds for exemptions from annual financial statements, and the maximum administrative fines. A significant change in the regulation of South African trusts The Bill is best understood as a consolidation and expansion of South Africa's existing trust regulatory framework. While many provisions restate or formalise existing obligations, the annual return to the Master, administrative-fine regime and more prescriptive compliance requirements will create additional obligations. Greater transparency and trustee accountability are legitimate objectives. The real test will be whether the additional regulation results in better governance and enforcement rather than simply more administration — particularly given that the effectiveness of the new regime will depend heavily on the capacity of the Master's Offices. The Bill remains open for public comment until 11 September 2026, and its provisions may still change before becoming law. Le Roux Vivier Attorneys assists individuals, families and businesses with the creation and registration of trusts, the drafting and amendment of trust deeds, trust administration and compliance, estate and succession planning, and trust-related disputes. This article is intended for general information purposes only and does not constitute legal advice. The Regulation of Trusts Bill, 2026 remains draft legislation and may be amended during the legislative process. The position stated is current as at 10 September 2026. Fraser Stockley BCom Law; LLB Partner at Le Roux Vivier Attorneys Disclaimer: The views expressed in this article are those of the author(s) and do not necessarily reflect the views of the firm. This content is provided for general information only and does not constitute legal advice. While every effort is made to ensure accuracy, the law may change and its application depends on the specific facts of each matter. Readers should seek professional legal advice before acting on any information contained herein. The firm and the author(s) accept no liability for any loss or damage arising from reliance on this content.

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 important piece of legislation: the Conventional Penalties Act 15 of 1962. Why was the Act Necessary? Historically, our common law, following Roman-Dutch principles, enforced penalty clauses, subject to the court's power to bring a disproportionately severe penalty (a poena ingens) within reasonable bounds. That position was disturbed in 1934 when the Privy Council, in Pearl Assurance Co v Union Government, aligned South African law with the English approach: a true "penalty" clause intended to operate in terrorem (that is, to frighten a party into performing) was unenforceable, and a creditor relying on such a clause had to fall back on proving actual damages. This created real uncertainty, since parties could no longer be sure whether a clause they had carefully negotiated would be enforced as written. The Conventional Penalties Act was passed to reverse the Pearl Assurance position and restore the pre-1934 approach. As Snyman J explained in Van Staden v Central SA Lands and Mines, the Act aims mainly at two things: first, to put it beyond doubt that a penalty stipulation is enforceable, and second, to prevent unfair or excessive penalties being extracted, including the double recovery of both a penalty and damages for the same breach. What Counts as a "Penalty Stipulation"? Section 1(1) of the Act defines a penalty stipulation broadly, as a term under which a person becomes liable, in respect of an act or omission in conflict with a contractual obligation, to pay a sum of money or to deliver or perform anything for the benefit of another party, whether described as a penalty or as liquidated damages. Section 4 extends sections 1 to 3 to certain forfeiture provisions. Where, upon the withdrawal of a party from an agreement in circumstances specified in the agreement, another party forfeits the right to claim restitution of something already performed, or remains liable to perform notwithstanding the withdrawal, the relevant provision is treated, for purposes of the Act, as if it were a penalty stipulation. For a clause to fall within the Act, the stipulated consequence must arise in respect of an act or omission in conflict with a contractual obligation. Ordinarily, it will impose a consequence on the debtor beyond the performance already due under the contract. A clause that merely restates an existing debt, or constitutes a true acceleration of an existing indebtedness, will not necessarily amount to a penalty. Whether a particular provision constitutes a penalty stipulation depends on its legal effect when the contract is considered as a whole. Although the courts have frequently referred to provisions intended to operate in terrorem, the authorities caution against treating subjective intention, or any single formulation, as an exhaustive test. What matters ultimately is the substance and operation of the provision rather than the label attached to it by the parties. Section 4 also extends the operation of the Act to certain forfeiture provisions arising upon withdrawal from an agreement. Accordingly, the Act is not confined in every instance to provisions triggered by breach in the narrow sense. Can a Creditor Recover Both the Penalty and Damages? No. Section 2(1) prohibits a creditor from recovering both the penalty and damages for the same breach, and from recovering damages in lieu of the penalty unless the contract expressly allows this. Where a contract does give the creditor an election, the courts have held that the choice between the two remedies is strictly alternative – once the penalty has been claimed and awarded, the creditor cannot simply tender to return it, or give the debtor credit for it, in order to claim damages instead. Section 2(2) adds a further limitation: a creditor who accepts, or is obliged to accept, defective or late performance cannot recover a penalty for that defect or delay unless the penalty was expressly stipulated in respect of it. When Will a Court Reduce the Penalty? This is the heart of the Act, and its most frequently litigated provision. Section 3 empowers the court, on the hearing of a claim for a penalty, to reduce it "to such extent as it may consider equitable in the circumstances" if the penalty is out of proportion to the prejudice suffered by the creditor. The debtor ordinarily bears the onus of establishing that the penalty is out of proportion to the prejudice suffered and of placing sufficient facts before the court to justify its reduction. The court may, however, raise the issue of disproportionality mero motu where it appears prima facie from the material before it that the stipulated penalty is disproportionate. The court's power under section 3 should therefore not be understood as imposing a general obligation to conduct an independent investigation into proportionality in every case in which a conventional penalty is claimed. The fact that a claim includes a conventional penalty also does not, without more, make summary judgment unavailable. Summary judgment may be inappropriate where the proportionality of the penalty raises a genuine triable issue requiring an evidentiary enquiry. Conversely, a defendant cannot defeat summary judgment merely by invoking section 3 without identifying facts capable of establishing that the penalty is out of proportion to the creditor's prejudice. What counts as "prejudice" is interpreted broadly. The proviso to section 3 directs the court to consider not only the creditor's proprietary interest but "every other rightful interest" affected by the breach. In Van Staden v Central SA Lands and Mines 1969 (4) SA 349 (W), Snyman J held that the court must take into account anything that can reasonably be considered to harm or hurt the creditor in his property, person, reputation, work, activities, convenience or mind, thereby applying, in his words, "a subjective test of prejudice" that does not require the harm to have been within the parties' contemplation at the time of contracting. Where the prejudice is non-monetary, the court must, as Budlender AJ put it in Murcia Lands CC v Erinvale Country Estate Home Owners Association, make a value judgment as to whether the penalty is "unduly severe to the extent that it offends against one's sense of justice and equity". The test for when a penalty is "out of proportion" was authoritatively stated by Caney AJP in Western Credit Bank Ltd v Kajee 1967 (4) SA 386 (N): the penalty need not be outrageously excessive to justify reduction, but it must be markedly beyond the prejudice suffered, such that it would be unfair to the debtor not to reduce it. Where the penalty merely approximates the prejudice, it will be left untouched. A court which finds the penalty excessive may reduce it to whatever amount it considers equitable, including, in an appropriate case, to nil. Who Has to Prove What? The full onus of proving that a penalty is out of proportion to the creditor's prejudice rests on the debtor, and the creditor is not required to first prove its own damages or plead a wider prejudice to trigger the enquiry. If the debtor discharges this onus prima facie, an evidentiary burden shifts to the creditor to rebut it which becomes especially important where the creditor relies on non-financial prejudice, or where the facts relevant to that prejudice lie peculiarly within the creditor's own knowledge. None of this prevents a court from raising the issue mero motu where the material before it prima facie indicates that the stipulated penalty is disproportionate. Practical Takeaways For anyone drafting or relying on a penalty clause, three points bear emphasis. First, calling a clause "liquidated damages" rather than a "penalty" makes no difference as both are treated identically under the Act, and what matters is substance rather than label. Second, if a party wants the option of claiming damages instead of the stipulated penalty, that election must be expressly recorded in the contract; the Act will not imply it. Third, a penalty need not represent a genuine pre-estimate of damages in order to be enforceable. It may legitimately serve a deterrent or coercive purpose. However, when enforcement is sought, a penalty that is out of proportion to the prejudice actually suffered by the creditor remains vulnerable to reduction under section 3, potentially even to nil. In assessing that prejudice, the court is not confined to financial loss but must have regard to every other rightful interest of the creditor affected by the breach. Conclusion The Conventional Penalties Act strikes a deliberate balance: it restores the enforceability of penalty clauses that our common law once recognised, while guarding against their abuse through the court's equitable power of reduction under section 3. For contracting parties, the practical message is straightforward: a well-drafted penalty clause is a legitimate and useful tool to secure performance and avoid the difficulty of proving damages after the fact, but it is not a blank cheque. Where a stipulated penalty is shown to be out of proportion to the prejudice suffered by the creditor, the Act gives the court the power to reduce it to such extent as the court considers equitable in the circumstances. Zinhle Skosana LLB Candidate Attorney at Le Roux Vivier Attorneys Disclaimer: The views expressed in this article are those of the author(s) and do not necessarily reflect the views of the firm. This content is provided for general information only and does not constitute legal advice. While every effort is made to ensure accuracy, the law may change and its application depends on the specific facts of each matter. Readers should seek professional legal advice before acting on any information contained herein. The firm and the author(s) accept no liability for any loss or damage arising from reliance on this content.

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 judicial case management conferences, the Judge has the following powers: 1.1. To request the discovery of documents; 1.2. To direct that the conference be held in person or electronically, and to direct the attendance of all or some of the parties, using the statement of issues as a deciding factor; 1.3. To record the conference; 1.4. After the conference, the Judge may certify that the matter is trial ready, having made the following considerations: issues that may be solved without a trial have been solved; remaining issues that require a trial have been defined; necessary punitive cost orders for non-compliance with conferences have been granted; requested documents have been discovered, inspected and produced; and delays in the finalisation of the matter have been pre-empted to the extent practically possible. 1.5. The Judge may elect to: Strike the matter from the case management roll for non-compliance and request that it be re-enrolled; Direct the parties to apply for an opposed interlocutory hearing date to ventilate issues; and Order the separation of issues. What to do 2.1. Parties must act professionally, comply with the Rules and maintain the initiative and responsibility to settle the matter. 2.2. Parties must have a pre-trial meeting before the conference, wherein the Plaintiff must ensure a minute is signed and filed. If the minute is not countersigned, the Plaintiff must explain why at the conference. 2.3. Parties must file a statement of issues listing the issues that are in dispute and the issues that are not in dispute. 2.4. The Plaintiff must ensure that the court file is in order not less than 2 days before the conference. 2.5. After the conference, the Plaintiff must file a minute of the meeting, if the Judge requests it. 2.6. After the conference, parties must ensure that the minutes, the Judge’s record of the conference and the Judge’s directions are filed. 2.7. Parties must ensure that the case management Judge is not the trial Judge, unless they enter a written agreement stating otherwise. Nomalanga Langa LLB Candidate Attorney at Le Roux Vivier Attorneys Disclaimer: The views expressed in this article are those of the author(s) and do not necessarily reflect the views of the firm. This content is provided for general information only and does not constitute legal advice. While every effort is made to ensure accuracy, the law may change and its application depends on the specific facts of each matter. Readers should seek professional legal advice before acting on any information contained herein. The firm and the author(s) accept no liability for any loss or damage arising from reliance on this content.

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 sell a motor vehicle for an agreed price, with the intention that both parties are legally bound, is a contract. Being drunk does not automatically make you liable for a motor vehicle accident Driving under the influence of alcohol is a criminal offence. However, in a civil claim for damages, liability depends on what caused the collision. If a drunk driver did not contribute to causing the accident, the mere fact that they were intoxicated does not reduce their claim for damages. Apportionment only applies where their own negligent conduct contributed to the accident. A suretyship must comply with strict legal requirements A deed of suretyship is not valid simply because someone agreed to "stand surety". Generally, it must: be in writing; be signed by or on behalf of the surety; identify the creditor, the principal debtor and the surety; and identify the principal obligation or debt, either expressly or by clear implication. Furthermore, a spouse married in community of property may not without the written consent of the other spouse bind themselves as surety unless the deed is entered by the spouse in the ordinary course of their profession, trade or business. Failure to comply with these formalities may render the suretyship unenforceable. You can be held liable for damage caused by your pet South African law recognises the actio de pauperie, which may hold the owner of a domesticated animal liable for damage caused by the animal. To succeed, the injured person must generally prove that: the defendant owned the animal at the time of the incident; the animal was domesticated; the animal acted contrary to the nature of domesticated animals generally; and the animal's conduct caused the loss or damage suffered. The owner may, however, still have recognised legal defences available depending on the circumstances. Contractual penalties can be reduced by a court Just because a contract provides for a penalty does not mean the full amount will always be payable. Under the Conventional Penalties Act, a court may reduce a contractual penalty if it is out of proportion to the prejudice actually suffered by the innocent party. You cannot choose whichever court you want Parties may agree that a particular court has jurisdiction in certain circumstances. However, they cannot, by agreement alone, confer territorial jurisdiction on a court that would not otherwise have jurisdiction. The ordinary jurisdictional rules must still be satisfied. Not every debt prescribes after three years The general prescription period for most debts is three years, but there are important exceptions. For example: 30 years – mortgage bond debts, judgment debts, certain tax debts and some debts owed to the State; 6 years – debts arising from negotiable instruments and notarial contracts; and 12 months – certain contribution claims under the Apportionment of Damages Act. Never assume a claim has prescribed without obtaining legal advice. Read more on prescription. You cannot take the law into your own hands Even if someone is unlawfully occupying your property, you generally cannot simply lock them out, disconnect essential services or deny them access without following the proper legal process. Doing so may amount to unlawful spoliation, and a court can order that possession or access be restored. A verbal contract can be binding Many people believe that every contract must be in writing. That is incorrect. Unless legislation requires writing (for example, the sale of land or a deed of suretyship), a verbal agreement can be just as legally enforceable as a written one - although it is usually much more difficult to prove. Legal advice early often costs less than litigation later Many disputes arise because legal advice was only sought after things had gone wrong. A short consultation before signing a contract or taking action can often prevent lengthy and expensive litigation later. Understanding the law today can help you avoid costly mistakes tomorrow. Fraser Stockley BCom Law; LLB Partner at Le Roux Vivier Attorneys Disclaimer: The views expressed in this article are those of the author(s) and do not necessarily reflect the views of the firm. This content is provided for general information only and does not constitute legal advice. While every effort is made to ensure accuracy, the law may change and its application depends on the specific facts of each matter. Readers should seek professional legal advice before acting on any information contained herein. The firm and the author(s) accept no liability for any loss or damage arising from reliance on this content.

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 Enjoyment" Mean? In simple terms, commodus usus is the tenant's right to occupy and use the leased property peacefully and without interference for the duration of the lease. It is one of the landlord's principal common-law obligations under a lease.. This duty has two dimensions. First, the landlord must personally refrain from doing anything that would disturb the tenant's use and enjoyment of the property. Second, the landlord must protect the tenant against interference by third parties who establish a right or title superior to that which the landlord was entitled to confer. The landlord's obligation also extends to delivering the property in a condition reasonably fit for the purpose for which it was let and, subject to the terms of the lease, maintaining the tenant's beneficial use and enjoyment throughout the lease. When Is the Landlord in Breach? Not every interference with the tenant's occupation constitutes a breach. A landlord is entitled to enter the premises to carry out reasonably necessary repairs, and even to inspect the property from time to time, provided this is done reasonably and with reasonable notice. However, unlawful or unreasonable interference, such as locking the tenant out, failing to remedy defects for which the landlord is responsible, or otherwise materially interfering with the tenant's beneficial occupation or, where appropriate, the profitable use of commercial premises, constitutes a breach of this obligation. Where the landlord is in breach, the tenant is entitled to the normal remedies for breach of contract: 1. enforcement of the lease; 2. cancellation (if the breach is sufficiently serious); and 3. damages for consequential losses suffered. An interdict (a court order compelling or restraining conduct) is the typical remedy for ongoing interference. Where the tenant's beneficial occupation is wholly or substantially impaired, the tenant may also, depending on the circumstances and the terms of the lease, be entitled to a remission of rental. What About Interference Beyond the Landlord's Control? Life is rarely straightforward, and lease relationships are no exception. What happens when the tenant's use and enjoyment is disrupted not by the landlord, but by forces beyond anyone's control such as a natural disaster, a war, or, as South Africans experienced acutely in 2020, a global pandemic and its resulting government regulations? Our law has long recognised the concepts of vis major (superior force) and casus fortuitus (inevitable accident), namely supervening events beyond the parties' control which may prevent or materially impair the tenant's beneficial use and enjoyment of the leased premises. Where a tenant's beneficial use and enjoyment of the premises is wholly or substantially impaired by such an event, and the lease does not provide otherwise, the landlord is not in breach of contract. Nevertheless, the tenant may be entitled to a remission of rental to the extent of the deprivation, provided the loss of beneficial occupation is the direct and immediate consequence of the vis major. These principles were considered by the Supreme Court of Appeal in Butcher Shop and Grill CC v Trustees for the time being of the Bymyam Trust 2023 (5) SA 68 (SCA), arising from the COVID-19 lockdown. The SCA confirmed that, unless excluded or limited by the lease, a tenant may claim remission of rental where a vis major prevents it from using the premises wholly or to a considerable extent, provided the loss of beneficial occupation is the direct and immediate consequence of the vis major. Can the Right Be Limited by Contract? Yes! And this is where landlords and tenants must exercise the greatest vigilance. While commodus usus is a default protection provided by the common law, it is not absolute. As a general rule, parties are free to regulate, limit or exclude aspects of the common-law protection by agreement, subject to applicable legislation and public policy.. In Hyprop Investment Ltd v Sophia's Restaurant CC (2012), the South Gauteng High Court confirmed that a landlord's obligation to provide undisturbed use and enjoyment can be lawfully limited by contract. In that case, the lease contained a clause permitting the landlord to carry out renovations without the tenant being entitled to any remission of rent. The tenant's attempt to rely on the common law principle failed entirely. The practical implication is clear: the common law provides a safety net, but the lease agreement is the first port of call. Tenants must read their leases carefully, paying particular attention to clauses dealing with the landlord's liability, service failures, repairs, and maintenance. What appears to be a powerful common law right may, in practice, have been substantially diluted by the very contract the tenant signed. Conclusion The right to undisturbed use and enjoyment is one of the most important protections a lease affords a tenant, and one of the most important obligations it imposes on a landlord. It reflects a fundamental principle of South African lease law that a tenant who pays rent is entitled to the beneficial use and enjoyment of the premises for which the rent is paid.. However, this right does not exist in a vacuum. It operates within the framework of the specific lease agreement and the broader law of contract, both of which can expand, limit, or exclude it. Whether you are a landlord drafting a lease or a tenant signing one, understanding the scope and limits of commodus usus is not merely a legal technicality, it is essential to protecting your rights and managing your risks throughout the lease relationship. Zinhle Skosana LLB Candidate Attorney at Le Roux Vivier Attorneys Disclaimer: The views expressed in this article are those of the author(s) and do not necessarily reflect the views of the firm. This content is provided for general information only and does not constitute legal advice. While every effort is made to ensure accuracy, the law may change and its application depends on the specific facts of each matter. Readers should seek professional legal advice before acting on any information contained herein. The firm and the author(s) accept no liability for any loss or damage arising from reliance on this content.

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 proprietorships, partnerships, private companies, personal liability companies, non-profit companies and trusts. Each structure has advantages and disadvantages. Sole Proprietorship A sole proprietorship is the simplest form of business. One person trades in their own name or under a trading name. This structure is often used by freelancers, consultants, small traders and individuals testing a business idea. The advantage is simplicity. There is no separate legal entity to register, and the owner has full control. The major disadvantage is personal liability. Because the business is not legally separate from its owner, business creditors may enforce their claims against the owner's personal assets. A sole proprietorship may be suitable for low-risk, small-scale businesses, but it is often not ideal where the business will employ staff, sign leases, incur debt, handle significant stock, or provide services that carry legal risk. Partnership A partnership is formed where two or more people agree to carry on business together with the aim of making a profit. Partnerships are relatively simple and flexible. They are often used where parties want to collaborate without immediately registering a company. However, partnerships can be risky. Partners are generally jointly liable for the debts of the partnership and, depending on the circumstances, may be held personally liable for those debts.. Disputes can also arise regarding profit-sharing, management responsibilities, contributions and exit rights. A written partnership agreement is essential. It should regulate capital contributions, profit-sharing, management, bank mandates, decision-making, restraint of trade, dispute resolution and what happens if a partner dies, resigns or wants to exit. A partnership may be suitable for a small professional or trading arrangement, but parties should be cautious before using it for a business that will incur substantial debt or long-term obligations. Private company ("Pty Ltd") A private company is one of the most common business vehicles in South Africa. A company is a separate legal person. This means it exists separately from its shareholders and directors. It can own assets, employ staff, enter into contracts and sue or be sued in its own name. One of the main advantages is limited liability. Shareholders are generally not personally liable for the company's debts solely by reason of being shareholders. This makes a private company attractive for businesses that intend to grow, employ staff, enter leases, raise funding or trade with larger clients. A private company is also well suited to multiple owners because ownership and voting rights can be structured through the company's shares and regulated further in a shareholders' agreement. However, a company must comply with statutory obligations, including CIPC filings, annual returns, tax registration, accounting records and proper governance. A private company is usually the preferred structure for SMEs, trading companies, property companies, professional businesses, start-ups and investor-backed ventures. Personal liability company ("Inc.") A personal liability company is often used by professional firms, such as attorneys, accountants and other professional service providers. It is similar to a private company, however present and past directors are jointly and severally liable with the company for debts and liabilities contracted during their respective periods of office, as contemplated in section 19(3) of the Companies Act. This structure is not usually used for ordinary trading businesses. It is more appropriate where legislation, professional rules or industry practice require or favour this type of structure. Non-profit company ("NPC") A non-profit company is used where the primary object is not to carry on business for profit or to distribute profits to incorporators, shareholders, directors or officers, but to pursue a public benefit, charitable, social, cultural, religious, educational or community purpose. This structure may be suitable for foundations, associations, public benefit initiatives and community organisations. A non-profit company must be carefully structured to ensure that its income and property are used for its stated objectives and not improperly distributed. Trust A trust is not usually the best structure for an ordinary trading business, but it can be useful in estate planning, succession planning, property holding and, in appropriate circumstances, asset protection. A trust is administered by trustees who hold and administer trust property for the benefit of beneficiaries or to achieve a specified purpose. Trusts require careful drafting and proper administration. Trustees must act in accordance with the trust deed and their fiduciary duties. Poorly administered trusts can create disputes, tax issues and legal exposure. A trust may be suitable for holding family assets, property or shares in a company, but business owners should obtain advice before using a trust as a trading vehicle. Close Corporations ("CC") Close corporations were historically popular for small businesses, but new close corporations can no longer be registered. Existing close corporations may continue to operate, but many business owners now choose private companies instead. Members of close corporations should still ensure proper governance, accounting and separation between personal and business affairs. In certain circumstances, members may incur personal liability in circumstances recognised by the Close Corporations Act and the common law, including where the business is carried on recklessly, with gross negligence or with intent to defraud creditors or for fraudulent purposes. How to choose the right entity The best entity depends on the nature of the business. Relevant considerations include the level of commercial risk, funding requirements, tax consequences, succession planning, ownership structure and anticipated future growth. For many growing businesses, a private company offers the best balance between limited liability, credibility, flexibility and commercial usefulness. However, the correct structure depends on the circumstances. Conclusion Choosing the wrong entity can expose business owners to unnecessary risk. The correct structure should protect the owners, support growth, regulate relationships between stakeholders and allow the business to operate efficiently. At Le Roux Vivier Attorneys, we assist entrepreneurs, business owners and investors with company registrations, shareholders’ agreements, commercial contracts, governance structures, restructuring and business advisory services. Ezekiel Dikio LLB Associate at Le Roux Vivier Attorneys Disclaimer: The views expressed in this article are those of the author(s) and do not necessarily reflect the views of the firm. This content is provided for general information only and does not constitute legal advice. While every effort is made to ensure accuracy, the law may change and its application depends on the specific facts of each matter. Readers should seek professional legal advice before acting on any information contained herein. The firm and the author(s) accept no liability for any loss or damage arising from reliance on this content.

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 protects property rights while establishing the constitutional framework for land reform. It provides that property may not be arbitrarily deprived and may be expropriated only in terms of a law of general application, for a public purpose or in the public interest, and subject to just and equitable compensation, agreed by the parties or determined by a court. Such compensation must reflect an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including the property's current use, acquisition history, market value, the extent of direct state investment or subsidy, and the purpose of the expropriation. The Constitution also provides that "public interest" includes the nation's commitment to land reform and that "property" is not limited to land. Section 25 further requires the State, within its available resources, to take reasonable legislative and other measures to promote equitable access to land. It also provides for legally secure tenure or comparable redress where land rights are insecure because of past racially discriminatory laws or practices, and for restitution of, or equitable redress for, property dispossessed after 19 June 1913 as a result of such laws or practices. Section 26 of the Constitution guarantees the right of access to adequate housing and provides that no person may be evicted from their home or have their home demolished without a court order granted after considering all the relevant circumstances. It also prohibits legislation permitting arbitrary evictions. In 2021, Parliament considered, but ultimately rejected, a constitutional amendment that would have expressly authorised expropriation without compensation. Accordingly, section 25 remains unchanged, and the constitutional requirement of just and equitable compensation continues to apply. The Expropriation Act The Expropriation Act 13 of 2024 was signed into law on 23 January 2025. It repealed the Expropriation Act 63 of 1975 and establishes the legislative framework governing how organs of state may expropriate property for a public purpose or in the public interest. The following is a practical summary of the Act and its key provisions. Application of the Act: The Act expressly prohibits arbitrary expropriation. Except in cases of urgent temporary use under section 20, an expropriating authority must first make a reasonable attempt to acquire the property by agreement before resorting to expropriation. The Act also provides for the temporary use of property in urgent circumstances. Powers of the Minister: The Minister of Public Works and Infrastructure may expropriate property for a public purpose or in the public interest, including on behalf of an organ of state that does not itself have expropriation powers. This includes property required for government accommodation, land and infrastructure. Broadly, a public purpose refers to the use of property for government or public functions, such as roads, schools, hospitals or other public infrastructure, whereas public interest is wider and includes land reform. Where only part of a property is required, the Minister may, at the owner's request, expropriate the entire property if leaving the remainder would materially impair its use or value. Where the Minister acts on behalf of another organ of state, ownership and possession vest in that organ of state, which is responsible for the associated costs. Property Investigation and Valuation: Before deciding whether to expropriate property, the expropriating authority (being the organ of state authorised to expropriate property) must investigate whether the property is suitable for the intended purpose, identify all registered and unregistered rights affecting it, and determine an offer of just and equitable compensation. Suitably qualified persons may inspect and value the property only with the owner's or occupier's written consent or, failing that, under a court order. Any damage caused during the investigation must be repaired or compensated for, and the investigation must comply with applicable privacy and information protection laws. Intention to Expropriate: Before property may be expropriated, the expropriating authority must serve a notice of intention to expropriate on the owner, mortgagee and known rights holders, and publish the notice. The notice must explain the proposed expropriation, identify the property, state the public purpose or public interest served, provide the reasons for selecting that property, specify the proposed dates of expropriation and possession, set out the proposed compensation and how it was calculated, identify the empowering legislation, and invite affected persons to lodge objections or submissions within 30 days. Recipients must, within 30 days, indicate whether they accept or dispute the proposed compensation (or request further particulars), disclose any additional rights holders of whom they are aware, and, in the case of land, provide details of any unregistered lessees, purchasers or builders holding a lien. The expropriating authority is required to consider all objections, submissions and responses before deciding whether to proceed. If it elects to proceed, compensation must either be agreed upon or determined by a court where necessary, after which a formal notice of expropriation may be issued. If it decides not to proceed, it must notify affected parties in writing and publish that decision. Notice of Expropriation: If the expropriating authority decides to proceed, it must serve a notice of expropriation on the owner, mortgagee and affected rights holders in their preferred language and publish the notice. The notice must identify the property, state the purpose and reasons for the expropriation, specify the dates on which ownership and possession will pass, identify the empowering legislation, and record the compensation agreed upon or determined by a court. It must also be accompanied by supporting documents explaining how the compensation was calculated, when it will be paid, and, where applicable, plans identifying the affected land or rights. If the property is land, the owner is required, upon request, to provide the title deed (or details of the person holding it), and any person in possession of the title deed must produce it within the prescribed period. Vesting and Possession: Upon expropriation, ownership of the property generally vests in the expropriating authority (or the person on whose behalf the property is expropriated) on the date specified in the notice of expropriation. The authority only takes possession of the property on the date stated in the notice (or another agreed date), meaning that ownership and possession do not necessarily pass simultaneously. Until possession passes, the expropriated owner or rights holder is generally entitled to continue using the property and to receive any income derived from it, but remains responsible for maintaining the property and for municipal rates, taxes, levies and normal operating costs. The expropriating authority may recover any loss in value caused by a failure to maintain the property, but must reimburse the owner for necessary maintenance costs incurred after the date of expropriation. Registered rights in favour of third parties (other than mortgages) generally remain in force unless separately expropriated, and the date of expropriation may not precede service of the notice of expropriation. Unregistered Rights: The Act protects persons who hold unregistered rights (legal rights in property that are not recorded in a public register, such as certain leases or other personal rights). If such a person was not given notice of the expropriation or has not been compensated, they may submit evidence of their right and claim compensation. If the claim is accepted, the expropriating authority must notify the rights holder of the expropriation, provide the relevant documentation, and compensate them in accordance with the Act. Where the rights holder is a lessee, rental remains payable to the former owner until possession passes to the expropriating authority, and thereafter, where applicable, to the expropriating authority. An owner or rights holder who knew of an unregistered right but failed to disclose it may be held liable to the expropriating authority for any additional compensation it is later required to pay as a result of that non-disclosure. Compensation: The starting point under both the Constitution and the Act is that compensation for expropriated property must be "just and equitable", reflecting an equitable balance between the public interest and the interests of those affected. In determining what is just and equitable, all relevant circumstances must be considered, including the property's current use, its acquisition and use history, its market value, the extent of direct state investment or subsidy, and the purpose of the expropriation. The Act also identifies factors that should generally not influence compensation, such as unlawful improvements to the property's value, improvements made after notice of expropriation, or changes in value attributable to the proposed expropriation itself. The Act further provides that nil compensation may, in limited circumstances, be just and equitable where land is expropriated in the public interest. Examples include abandoned land, land held purely for speculative purposes, certain unused state-owned land acquired without consideration, and land whose market value is equal to or less than the value of direct state investment or subsidy. Importantly, these examples are not exhaustive, and nil compensation is not automatic. The Act provides only that nil compensation "may" be just and equitable, having regard to all the relevant circumstances. Whether those circumstances exist in any particular case will ultimately be determined in accordance with the Constitution and, where necessary, by the courts. When making an offer of compensation for land, the expropriating authority must also take into account any outstanding municipal rates, taxes, levies and other charges relating to the property. Compensation must be paid on the date and in the manner agreed by the parties or determined by a court. A dispute regarding the amount or timing of payment does not generally prevent ownership or possession from passing to the expropriating authority unless a court orders otherwise. If compensation is paid before the final amount is determined, any overpayment must be refunded with interest. Where VAT is payable, compensation will only be paid once the claimant has provided the required tax documentation and confirmed their tax compliance. Where compensation cannot be paid directly - for example, because the person entitled to it cannot be identified or located, fails to provide the information required for payment, or there is a dispute or court order preventing payment - the expropriating authority may (and in some circumstances must) deposit the compensation with the Master of the High Court. The funds are then held in the Guardian's Fund, where they accrue interest until the person entitled to them is identified or a court directs how they are to be paid. Interest: Interest accrues on any outstanding compensation from the date the expropriating authority takes possession of the expropriated property until payment is made. The interest rate is linked to the rate prescribed under the Public Finance Management Act. However, interest does not accrue during any period in which the claimant has failed to comply with certain statutory requirements, and it ceases once the compensation has been paid, deposited or otherwise made available in accordance with the Act. Mortgage Bonds and Deeds of Sale: Where expropriated property is subject to a registered mortgage bond or a deed of sale, the Act regulates how compensation is paid, rather than who is ultimately entitled to it. The expropriating authority may not pay the compensation unless the owner and the mortgagee or purchaser have agreed how it is to be paid and have notified the authority of that agreement. If no agreement is reached within the prescribed period, or if a dispute arises, the expropriating authority may deposit the compensation with the Master of the High Court, after which the parties may approach a court to determine how the compensation should be distributed. Rates, Taxes, and Other Charges: The Act regulates how outstanding municipal rates, taxes, municipal levies and other municipal charges are dealt with when compensation is paid. Where the municipality notifies the expropriating authority of outstanding amounts within the prescribed period, the authority must notify the owner and, if those amounts are not disputed within 20 days, may deduct them from the compensation and pay them directly to the municipality. If the municipality fails to notify the expropriating authority of the outstanding charges within 30 days, the authority may pay the compensation without making any deduction and is not liable for those outstanding amounts. The owner, however, remains personally liable to the municipality for those charges until possession of the property passes to the expropriating authority. These provisions apply specifically to municipal charges and do not expressly extend to homeowners' association, estate or similar private levies. Dispute Resolution: Where the expropriating authority and an affected party cannot agree on the amount, timing or manner of payment of compensation, they may first attempt to resolve the dispute through mediation. If no agreement is reached, either party may approach a competent court to determine or approve just and equitable compensation. The Act also preserves the right of any person to approach a court on any issue relating to the application of the Act. Where the Act has not been complied with, the court may grant any order that is just and equitable, taking into account all relevant circumstances. Importantly, an appeal against a court's determination of compensation does not automatically suspend the expropriation. The expropriation may proceed unless a court grants an interim interdict based on compelling prospects of success on appeal. Urgent Expropriation: In cases of urgent public need, the Act permits an expropriating authority to temporarily use property without immediately expropriating ownership. This power is limited to situations such as disasters or other urgent and exceptional circumstances, generally where no suitable government-owned property is available, and may only be exercised for up to 12 months, subject to a court-approved extension of no more than 18 months in total. Although certain procedural requirements may be shortened or modified because of the urgency, the owner or rights holder remains entitled to just and equitable compensation, and any disputes regarding compensation are determined in accordance with the ordinary provisions of the Act. The expropriating authority must also repair or compensate for any damage caused during the temporary use and may, if necessary, later commence formal expropriation proceedings in accordance with the Act. Withdrawal of Expropriation: An expropriating authority may withdraw an expropriation if it is in the public interest to do so or if the reason for the expropriation no longer exists. However, withdrawal is subject to important limitations. After three months from the date of expropriation, it generally requires the written consent of the affected parties or the authorisation of a court. Withdrawal is also not permitted once the land has been registered in the expropriating authority's name or compensation has been paid, unless the necessary consents are obtained. If an expropriation is validly withdrawn, ownership reverts to the original owner, any rights extinguished by the expropriation are restored, the relevant property registers must be corrected, and the expropriating authority is liable for the reasonable costs and damages resulting from the withdrawal. Service and Publication of Documents: The Act prescribes detailed procedures for the service, publication and language of notices and other documents. Notices must generally be served personally, by registered post and electronic mail, or, where the recipient cannot reasonably be located, by public notice. Certain notices must also be published in the Government Gazette, local newspapers, and, in the case of land, displayed prominently on the property. Where appropriate, additional publication by radio or television may be used. The Act further requires documents to be provided in English and, where a person has requested it, in their preferred official language. Recipients are also entitled to request a translation of communications into another official language. Extension of Time: The Act allows the extension of certain time periods where there is good cause. An expropriating authority may extend time limits applicable to owners, rights holders, interested persons or other organs of state upon written request, and may also extend its own time periods where the affected parties agree or good cause exists. Examples of good cause include the need to obtain extensive documents or information, consult with other organs of state, or other circumstances making compliance within the original period unreasonable. Any extension must be communicated in writing, stating its duration, the reasons for it, and, where applicable, drawing the recipient's attention to their right to approach a court. Expropriation Register: The Act requires the Director-General to establish and maintain a publicly accessible register recording all intended expropriations, completed expropriations, withdrawals of expropriations, and decisions not to proceed with proposed expropriations. All expropriating authorities are required to provide the relevant notices to the Department within 20 days to ensure that the register remains up to date. Offences: The Act distinguishes between civil breaches and criminal offences. An owner or rights holder who fails to comply with certain disclosure obligations under the Act - such as failing to identify known rights holders or provide required information about them - may be liable to a civil penalty imposed by a court. Such non-compliance is not a criminal offence. By contrast, any person who wilfully provides false or misleading information in a document submitted under the Act commits a criminal offence and may, upon conviction, be fined or imprisoned for up to three years. Regulations: The Act empowers the Minister to make regulations necessary for its implementation, including regulations dealing with administrative procedures, prescribed forms and notices, and the maximum civil penalties that may be imposed. The Act also provides that minor procedural defects will not automatically invalidate regulations, notices or decisions, provided the non-compliance is not material, does not prejudice any person, and is not procedurally unfair. Similarly, minor errors may be corrected without repeating the full statutory process where doing so does not materially affect anyone's rights or interests. Competing Legislation: The Act provides that other legislation authorising the expropriation of property must, where possible, be interpreted consistently with the Expropriation Act. References in other laws to compensation under the former Expropriation Act are to be understood as referring to the constitutional standard of just and equitable compensation and the provisions of this Act. Where there is any conflict between this Act and another law dealing with matters covered by it, the Expropriation Act prevails. Constitutional Challenges The Expropriation Act is currently the subject of constitutional challenges before the courts. Among others, the Democratic Alliance, AfriForum and the Institute of Race Relations have challenged various provisions of the Act, contending that they are inconsistent with section 25 of the Constitution and unlawfully permit expropriation without compensation. At the time of writing, no court has ruled on the constitutionality of the Act, nor has any court authoritatively determined the circumstances in which nil compensation may be just and equitable. The outcome of these proceedings will play a significant role in determining how the Act is interpreted and applied in practice. Conclusion The Expropriation Act establishes a comprehensive legal framework governing the expropriation of property. It expands upon the constitutional framework by prescribing the procedures to be followed, the manner in which compensation is determined and paid, and the circumstances in which nil compensation may be considered. While the Act contains extensive procedural safeguards, several of its provisions remain the subject of constitutional challenge. Until the courts have determined those challenges, aspects of the Act's practical application will remain uncertain. As matters stand, section 25 of the Constitution remains unchanged. Compensation must therefore continue to meet the constitutional standard of being just and equitable, and the constitutionality and practical application of the Expropriation Act will ultimately be determined by the courts. Fraser Stockley BCom Law; LLB Partner at Le Roux Vivier Attorneys Disclaimer: The views expressed in this article are those of the author(s) and do not necessarily reflect the views of the firm. This content is provided for general information only and does not constitute legal advice. While every effort is made to ensure accuracy, the law may change and its application depends on the specific facts of each matter. Readers should seek professional legal advice before acting on any information contained herein. The firm and the author(s) accept no liability for any loss or damage arising from reliance on this content.

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 services and ownership of certain erven in the township at a future date. Types of HOAs There are two types of legal structures which give rise to the establishment of HOAs. The first is a common law association which is governed by governance documentation under a written constitution prepared by the developer. Many of the earlier townships were governed by this structure. The second structure is a non-profit company (NPC), whose primary governance documentation is its Memorandum of Incorporation (MOI). The Companies Act 71 of 2008 regulates the operation of NPCs. Under this structure, the HOA is run by a board of directors appointed by all the registered owners in the development. Who belongs to and what is governed by an HOA All registered owners of freehold properties are members of the HOA and remain so until ownership passes to a new registered owner. The obligation to become and remain a member of the HOA is a condition of title contained in each freehold title deed. The HOA takes ownership of all communal properties, such as roads, parks, security areas, boundary walls, clubhouses, and can include sewer and water plants, as well as bulk service areas specified in the Conditions of Establishment. Who pays for the upkeep and services All owners, by way of monthly levy charges, are required to pay for the upkeep, replacement and improvement of the services run by the HOA. Owners are legally liable to make their contributions and are to abide by all the rules applicable to the estate. Governance documentation For an HOA to function as required, the governance documentation is of utmost importance, as the daily running of the HOA is dependent on the correct implementation thereof. Governance documentation is, first and foremost, a contract that binds every registered owner of an erf in the township. Read, stay in the loop and follow the HOA's governing documentation. The governance documentation differs from HOA to HOA, but often makes provision for the directors or executives to make regulations or rules that govern guidelines affecting, inter alia, architecture, environmental or management and conduct issues within the development, which eventually become binding on the members. For this reason, it is important for members to attend all HOA meetings. Rules and guidelines cannot contravene or contradict any term in the Constitution or MOI. Community Schemes Ombud Service (CSOS) HOAs are not governed by the Sectional Titles Schemes Management Act and its Regulations, but by the CSOS Act 9 of 2011 and its Regulations. It is important to note that all HOAs must be registered with the CSOS and all the governing documentation of the HOA is to be lodged with the CSOS for approval and acceptance. In closing: A short summary The key responsibilities of an HOA are: Upkeep of communal property Levy collection Implementation of rules Issuing of clearance certificates Ownership and membership Every title holder is a member of the HOA. The HOA owns all the common property in the township, including roads, parks and amenity erven. Meetings and compliance All meetings are to comply with the governance documents, together with relevant Acts of Parliament and the Regulations published thereunder. Members are to comply with the governance documents. Members are to be aware of the contents and requirements of the governance documents. HOAs are to comply with SARS requirements. HOAs are required to comply with the Companies and CSOS Acts. Disputes The primary function of the CSOS, which came into operation under the CSOS Act, is to provide a relatively inexpensive and efficient system to resolve administrative disputes that arise in HOAs, but this does not exclude aggrieved members from referring disputes to the South African courts of law. Court rulings In the recent past, the courts have passed judgments regarding issues which, inter alia, related to short-term rentals within the areas of jurisdiction of HOAs, which rulings have a direct impact on how conduct rules passed by HOAs are dealt with, even though such rules have already been scrutinised by the CSOS. Johan Jacobs BProc Consultant at Le Roux Vivier Attorneys Disclaimer: The views expressed in this article are those of the author(s) and do not necessarily reflect the views of the firm. This content is provided for general information only and does not constitute legal advice. While every effort is made to ensure accuracy, the law may change and its application depends on the specific facts of each matter. Readers should seek professional legal advice before acting on any information contained herein. The firm and the author(s) accept no liability for any loss or damage arising from reliance on this content.

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 mechanisms – the Emolument Attachment Order ('EAO') – provided for in section 28 of the Act. An EAO allows arrear maintenance, together with interest, and future maintenance payments to be deducted directly from the debtor's salary and paid over by their employer.[2] The order directs the employer to make the specified payments from the debtor's emoluments until the arrear amount, interest and the costs of the attachment have been paid in full.[3] This remedy is not limited to an ordinary salary – the Act specifically provides that pensions, annuities, gratuities, and similar benefits may also be attached to satisfy a maintenance order, despite anything to the contrary in any other law.[4] The Order remains in force until an application is made to the court to suspend, amend or rescind it.[5] Such an application may be brought by either party on good cause shown, but the party applying must give the other party at least 14 days' written notice of their intention to apply before the hearing date.[6] At the hearing, the maintenance court may call on either party to lead evidence, whether in writing or orally, in support of or in rebuttal of the application.[7] A maintenance beneficiary may apply for an Emolument Attachment Order when: a Maintenance Order already exists;[8] and the maintenance debtor has fallen into arrears for a period of ten days from the date the amount became due and payable.[9] The court will not, however, grant an EAO in every case. If the maintenance debtor has appealed the underlying Maintenance Order and payment has, as a result, been suspended pending that appeal, the court cannot authorise an EAO.[10] Similarly, if the court already made an automatic order at the time the original Maintenance Order was issued, directing a third party – such as a pension fund administrator – to make periodical payments on the debtor's behalf, a further attachment order under section 28 will not be granted.[11] The Act also provides that the application must be made in the prescribed manner, specifically accompanied by the following documents: a copy of the existing Maintenance Order;[12] and an affidavit outlining the amount in arrears.[13] Once granted - serve on the employer Once the court grants the EAO, the maintenance officer must, within seven days of the order being made, or whenever it is afterwards required, serve a notice, together with a copy of the order, on the debtor's employer, directing the employer to make the payments specified in the notice.[14] The employer must give these payments priority over any other court order requiring payment from the same emoluments.[15] Should the debtor leave the employer's service, the employer must notify the maintenance officer of this within seven days of the debtor leaving.[16] If the employer fails, without sufficient cause, to make the payments as directed, the order becomes enforceable against the employer directly, and the employer may also be guilty of an offence, punishable on conviction by a fine or imprisonment for a period not exceeding two years.[17] Since we go over and above, here at LVA, we would also request the following documents from you to better ensure the Order is granted: bank statements showing proof of non-payment; a copy of your Identity Document; and any correspondence relating to maintenance payments. With the above documentation we can complete the 'J306E – Application for Enforcement of Maintenance or Other Order' form and lodge the application on your behalf. Contact us on 011 431 4117 today. Nomalanga Langa LLB Candidate Attorney at Le Roux Vivier Attorneys Disclaimer: The views expressed in this article are those of the author(s) and do not necessarily reflect the views of the firm. This content is provided for general information only and does not constitute legal advice. While every effort is made to ensure accuracy, the law may change and its application depends on the specific facts of each matter. Readers should seek professional legal advice before acting on any information contained herein. The firm and the author(s) accept no liability for any loss or damage arising from reliance on this content. [1] Maintenance Act 99 of 1998 s26(1). [2]The Act s28(1). [3]The Act s28(1). [4]The Act s26(4). [5]The Act s28(2)(a). [6]The Act s28(2)(b). [7]The Act s28(2)(c). [8]The Act s26(1)(b)(ii). [9]The Act s26(2)(a). [10]The Act s26(3)(a). [11]The Act s26(3)(b), read with s16(2). [12]The Act s26(2)(b)(i). [13]The Act s26(2)(b)(ii). [14]The Act s29(1). [15]The Act s29(3). [16]The Act s29(2). [17]The Act s29(4), read with s38.

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 separate legal entity and, as a general rule, limits their personal liability to the company’s debts and obligations. However, this protection is not absolute. Where a company is abused, the court may, in appropriate circumstances, disregard the company’s separate legal personality and look into the liability of the directors in their personal capacity. This is commonly referred to as “piercing the corporate veil”. What does it mean to pierce the corporate veil? Piercing the corporate veil means that a court looks beyond the company as a separate legal person and considers the people or entities behind it. In ordinary circumstances, the company is treated as separate from its shareholders, directors and related companies. However, where the company structure is used improperly, the court may refuse to allow those behind the company to hide behind its separate legal personality. This may result in the rights, obligations or liabilities of the company being attributed to another person or entity. In simple terms, the court may say: although the company appears to be separate, it has been used in such an abusive manner that the law will not allow that separation to protect wrongdoing. The legal position in South Africa Section 20(9) of the Companies Act 71 of 2008 (“the Companies Act”) allows a court to pierce the corporate veil where there has been an unconscionable abuse of the company’s juristic personality. The section provides that, where the incorporation, use, or conduct of a company constitutes an unconscionable abuse of its separate legal personality, a court may declare that the company is to be deemed not to be a juristic person in respect of certain rights, obligations or liabilities. The court may also make any further order it considers appropriate to give effect to that declaration. This is a powerful remedy, but it is not granted lightly. The court must be satisfied that there has been more than ordinary business failure, poor management or commercial difficulty. There must be an abuse of the company’s separate legal personality. When may a court pierce the corporate veil? A court may consider piercing the corporate veil where, for example: the company is used to commit fraud; the company is used to avoid existing legal obligations; company funds are moved improperly to frustrate creditors; the company is used as a façade or device to conceal wrongdoing; personal and company affairs are deliberately mixed; related companies are used as a single abusive structure; the company is used to defeat the rights of creditors; assets are shifted between companies without proper commercial justification; the separate corporate structure is used in an unconscionable manner. Each case depends on its own facts. The mere fact that a company cannot pay its debts does not automatically justify piercing the corporate veil. Similarly, the fact that a company forms part of a group of companies does not, on its own, mean that the separate legal personality of each company will be ignored. The focus is on whether the company structure has been abused. Lessons from the Constitutional Court The Constitutional Court recently considered the scope of section 20(9) of the Companies Act in Centaur Mining South Africa (Pty) Ltd v Moodliar N.O. and Others. The case involved various companies in the Trillian group. The evidence showed that the affairs of the companies were heavily intermingled. Funds were moved between different companies, invoices were allegedly used to disguise the movement of money, and certain entities were found not to have conducted legitimate business. The liquidators sought relief under section 20(9) of the Companies Act on the basis that the companies had been used in a manner that amounted to an unconscionable abuse of their separate legal personalities. The Constitutional Court confirmed that separate legal personality remains the foundation of company law. A company is ordinarily treated as an independent legal person, separate from its shareholders, directors and related companies. However, the Court also confirmed that section 20(9) gives courts a discretion to disregard separate legal personality where there has been an unconscionable abuse of that personality. Importantly, the Court clarified that section 20(9) is not a general liquidation mechanism. In other words, the section does not, by itself, empower a court to liquidate a company. Its purpose is to address the abuse of separate legal personality by allowing the court to disregard that separate personality in respect of specific rights, obligations or liabilities. The judgment is significant because it confirms that courts will protect the principle of separate legal personality, but will not allow that principle to be used as a shield for abuse. Practical example Assume Company A owes money to creditors. Its directors then transfer its assets to Company B, a related company controlled by the same people, for no proper commercial reason. Company A is left empty and unable to pay its debts, while Company B continues trading with the transferred assets. In those circumstances, a creditor may argue that the company structure has been abused to avoid payment. Depending on the facts, a court may consider piercing the corporate veil or granting other appropriate relief. By contrast, if Company A simply fails because it loses a major client, suffers cash flow problems, or makes a bad commercial decision, that alone will usually not be enough. Honest business failure is not the same as abuse of corporate personality. Why this matters for directors and shareholders Directors and shareholders should not assume that the use of a company will protect them in all circumstances. The protection of limited liability is available where the company is used properly. It becomes vulnerable where the company is used to perpetrate fraud, avoid obligations, conceal wrongdoing, or frustrate creditors. This is particularly important in group structures, family businesses and small private companies, where the same individuals often control multiple entities. Directors and shareholders should ensure that: each company has a legitimate commercial purpose; company funds are kept separate; inter-company transactions are properly documented; loans between related entities are recorded; company assets are not moved without proper authority and value; financial records are accurate and up to date; creditors are not misled; the company is not used to avoid existing legal obligations. Proper corporate governance is not only an administrative requirement. It is a safeguard against personal exposure and future litigation. Conclusion Separate legal personality is a fundamental protection in company law. It allows businesses to trade, contract and grow through a legal entity that is distinct from the people behind it. However, that protection is not absolute. Where a company is used dishonestly, fraudulently or in a manner that amounts to an unconscionable abuse of its separate legal personality, a court may pierce the corporate veil. The lesson for directors, shareholders and business owners is simple: use the company structure properly. Keep proper records, respect the distinction between personal and company affairs, and avoid using companies as vehicles to escape obligations or frustrate creditors. At Le Roux Vivier Attorneys, we advise directors, shareholders, companies and creditors on corporate governance, personal liability, shareholder disputes, debt recovery and commercial litigation. Ezekiel Dikio LLB Associate at Le Roux Vivier Attorneys Disclaimer: The views expressed in this article are those of the author(s) and do not necessarily reflect the views of the firm. This content is provided for general information only and does not constitute legal advice. While every effort is made to ensure accuracy, the law may change and its application depends on the specific facts of each matter. Readers should seek professional legal advice before acting on any information contained herein. The firm and the author(s) accept no liability for any loss or damage arising from reliance on this content.

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 health service given by a person with the legal capacity to do so and who has been properly informed as contemplated in section 6 of the Act. Section 6 of the Act requires every healthcare provider to inform a patient of: the patient's health status, except where disclosure would be contrary to the patient's best interests; the range of diagnostic procedures and treatment options generally available; the benefits, risks, costs, and consequences associated with each option; and the patient's right to refuse treatment and the implications, risks, and obligations arising from such refusal. Where reasonably possible, this information must be communicated in a language and manner that the patient understands, taking into account the patient's level of literacy and comprehension. The Requirements for Valid Consent The requirements for informed consent were considered in Castell v De Greeff 1994 (4) SA 408 (C), where the court held that: the patient must be aware of the nature and extent of the risk involved; the patient must understand and appreciate that risk; the patient must voluntarily consent to the treatment despite the risk; and the consent must cover the particular treatment and associated risks. In addition, section 12(2) of the Constitution guarantees every person's right to bodily and psychological integrity, including the right to security and control over their own body. The doctrine of informed consent therefore serves to protect a patient's constitutional rights and personal autonomy. Exceptions to the Requirement for Consent Although informed consent is generally required, the National Health Act recognises certain circumstances in which healthcare services may be provided without the patient's consent. Section 7 of the Act permits treatment without the patient's direct consent where: the patient is unable to provide informed consent, and consent is given by a person authorised by the patient, by law, or by a court order; the patient is unable to consent, and no authorised person is available, in which case consent may be obtained from the patient's spouse or partner, parent, grandparent, adult child, brother or sister in the order prescribed by the Act; treatment without consent is authorised by legislation or a court order; failure to treat the patient would pose a serious risk to public health; or any delay in treatment may result in the patient's death or irreversible damage to the patient's health and the patient has not expressly or impliedly refused the treatment. The Act further requires healthcare providers to take all reasonable steps to obtain informed consent before relying on any of these exceptions. Accordingly, where a patient is incapable of consenting and immediate treatment is necessary to save life or prevent serious and irreversible harm, the law permits treatment without consent. Consequences of Failure to Obtain Informed Consent Failure to obtain informed consent may expose a healthcare practitioner to legal liability. Medical treatment performed without valid consent may constitute an unlawful infringement of a patient's bodily integrity and may give rise to a claim for damages. Depending on the circumstances, liability may arise in contract, delict, or both. However, a distinction must be drawn between a lack of consent and negligent treatment. A patient may consent to a procedure yet still have a claim if the procedure is performed negligently. Conclusion The principle of informed consent is firmly entrenched in South African law and reflects the constitutional values of dignity, autonomy and bodily integrity. As a general rule, medical treatment may only be provided with a patient's informed consent. Although the law recognises limited exceptions in circumstances such as emergencies, healthcare practitioners remain under a duty to obtain consent wherever reasonably possible and to ensure that patients are adequately informed before making decisions concerning their healthcare. treatme Fraser Stockley BCom Law; LLB Partner at Le Roux Vivier Attorneys Disclaimer: The views expressed in this article are those of the author(s) and do not necessarily reflect the views of the firm. This content is provided for general information only and does not constitute legal advice. While every effort is made to ensure accuracy, the law may change and its application depends on the specific facts of each matter. Readers should seek professional legal advice before acting on any information contained herein. The firm and the author(s) accept no liability for any loss or damage arising from reliance on this content.