Daan's Snippets

Practice

Golegal published a note on touts at hospitals: this piqued my interest as (and I confess not having bothered to read this) our ethics prohibit payment to 3rd parties for such services. If one employs one’s own staff to do this – what is the difference between advertising and face-to-face recommendation by own staff members? The writer of that article takes the view that a practitioner, who has to resort to such methods, is not the kind of party you want handling your personal injury claim: the fact is, however, that touting is rife and, to my knowledge, I cannot recall of any practitioner ever having been taken to task over this. Comment?

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A perennially green issue is fiduciary duties which apply when a company director resigns. In principle, such fiduciaries cease and resignation unless a breach of these duties had already been committed. Do take a look: https://caf.co.za/2020/01/30/the-aftermath-resignation-of-a-director-and-the-surviving-fiduciary-duties/

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The so-called derivative action allows a shareholder, in certain circumstances, to sue on behalf of the company in which he holds an interest. The equivalent for a body corporate of a sectional title scheme is contained in section 9 of the Sectional Titles Schemes Management Act.

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When serving a writ upon an organ of the State, do consider the provisions of the State Liability Act: this involves, amongst other things, a holding period which, if ignored, could lead to the striking down of the attachment. The latest case in this is Department of Agriculture v Xulu and others. Ask me for a copy (courtesy of Mr Podbielski, a Durban practitioner as this had not been published the time of writing). 

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I confess to having mixed feelings about a judgement, delivered by the KZN High Court in Durban in January: the order declared that all marriages concluded out of community of property under section 22 (6) of the Black Administration Act, are deemed to be marriages in community of property. At the stroke of a pen, retrospectively, this purports to change ownership and other rights in existing marriages: is that fair (after all it is not only the rights of women in issue but also those of men whose existing rights are now being diluted)? Judge for yourself. http://www.saflii.org.za/za/cases/ZAKZDHC/2020/1.html

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Insurance law: does the contingent right of an insured to claim an indemnity prescribe? On the arcane side but still: http://www.saflii.org.za/za/cases/ZASCA/2019/188.html (courtesy of adv Crots)

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In many old trust deeds, one finds provisions that a trustee might appoint another to exercise his discretions and powers or to appoint an alternate trustee. Avoid these. I hold an article on the liabilities of trustees and their fiduciary duties by Van der Spuy (a Master Tax Practitioner – I did not know what this meant but you can find a description at (https://www.thesait.org.za/page/Tax_designations ). Ask me for a copy.

 Property

The FNB Fourth Quarter Commercial Property Broker Survey reveals that office, industrial and retail property activity is perceived by agents to have declined in the fourth quarter of last year from the 49% achieved in the third quarter, down to 31%. The best performing of these sectors is the industrial and warehouse market, which still has a weak reading of -12%. Weakest was the retail property market at -52%.

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I had a conversation with a land surveyor recently who commented about the workings of those who would consent to farm subdivisions and the like: it appears that the passage of such applications are slow and painful (unless, one presumes, facilitated by a little something to smooth its passing).

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Obtaining a housing loan from a bank if you are self-employed, can be very awkward: the article that follows gives a few pointers – I would add another: go and see an able bond originator. https://propertyprofessional.co.za/2020/01/30/self-employed-bond-applicants-how-to-sail-through-the-extra-hoops/

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if you are a developer you should look at the media statement issued by Treasury for the intended imposition of so-called development charges for infrastructure and developments. http://www.treasury.gov.za/comm_media/press/2020/2020010801%20Media%20Statement-%20%20Municipal%20Fiscal%20Powers%20and%20Functions%20Amendment%20%28MFPFA%29%20Bill.pdf

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South African economists anticipate that private sector credit extension will slow this year on the back of weak consumer finances. One wonders whether this will impact on the extension of bonds?

Economy

Only one commentator picked up on the absurdity of the Development Bank of SA loan to SAA: the stated primary purpose of the bank is to promote economic development and growth and to improve the quality of lives of people and promote regional integration through infrastructure finance and development. The fact is that our government needed a source of money (when no one else would lend) and appropriated funds that should be used by that institution finance new business, to prop up our national carrier in the throes of its death spiral. Development my ass.

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You must love these guys: the Zim government by fiat decreed that the US dollar is now equal to the new Zimbabwean currency – one for one: which decree has been upheld by its Chief Justice. Effectively this discounts the Zimbabwean debt due to farmers driven off land by 95% and is dropping still.

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I was quite interested by a note on the economic effect of our December/January holidays. In the past, companies didn’t shut down over the festive season, save for Christmas day, Boxing Day and New Year’s Day. Today, the two weeks before and after Christmas, especially in the public sector, have become virtual holidays: on top of that, South Africa has compulsory annual three-week leave for those who work five days a week; compare this to the US where the average leave  period is two weeks. Think productivity.

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The future of money: the WEF has produced a framework for Central Bank Digital Currency.
https://www.technocracy.news/wef-debuts-framework-for-central-bank-digital-currency/

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Putting their money where their asses are: Cosatu has reportedly offered the ANC a proposal that PIC funds may be used to pay off Eskom debt, if the utility is not privatised and no jobs are lost. Great; however, it wants the rest of us to do the same with our retirement money. Whatever, that union clearly does not understand that the debt owed by Eskom will not go away, it will merely be shifted to another lender; furthermore, job losses are quite probably necessary if Eskom were to become viable again.

Business

It was reported that Cell C had defaulted on loan repayments which that entity termed an “initiative” to improve liquidity and to restructure the company’s balance sheet: what..; it’s broke! The fact is that Cell C was introduced into South Africa by the government seeking to drive down prices as a competitor which piggybacked (read after being leaned on by the government) on the resources of its competitors. It has never been a worthy player in its own right.

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Is your CEO being paid too much? You could consider asking an opinion from Deloitte: https://www.engineeringnews.co.za/article/ceo-remuneration-remains-a-complex-issue-deloitte-2020-01-27

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Same old: our government’s failure to pay building contractors on time is said to be one of the major causes of job losses in the construction sector: how often have you heard hand-on-the-heart undertakings by our government to expedite such payments: https://www.engineeringnews.co.za/article/delayed-govt-payments-forcing-contractors-out-of-business-databuild-2020-01-28

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BEE is an extreme reflection of what has become mainstream: the politicisation of business, education and so on. The pervasiveness of this is illustrated by a University of California academic complaining of the diversity, equity and inclusion statement required of anyone hired by or who desired a raise or promotion from that institution. Such is a political test upon which, not your achievements, but your fit into the society of the day, is measured. Merit ceases to be the primary determinant of academic achievement – which must needs spill over as inferior education and reduced academic output. The fact is that there are quotas everywhere. The answer is to work for yourself and not to bother with government or those in thrall to it.

Quotables 

Solitudinem faciunt, pacem appellant.

They create desolation and call it peace. Tacitus’ father-in-law on Roman rule.

Applied to the South African situation, we could well say of our politicians: they create desolation and call it freedom.

Comment

It has become fashionable for Eskom to self-flagellate and blame some of its woes on corruption. The ANC says that they will, in future, put qualified people at the helm of our affairs…(hello!)

So, a change of heart but no consequences for its policies of the past? Overseen by heard-no-evil, spoke-no-evil, saw-no-evil president Ramaphosa.

Lighten up

Wife: Why are you home so early? 

Husband: My boss told me to go to hell.

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No man goes before his time… unless his boss leaves early. 

Groucho Marx

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Most of the people dream of not working and having lots of money. During an economic crisis 50 % of those dreams come true.

Contributed by:
Daan Steenkamp Attorneys
LinkedIn Profile

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