Smooth Sailing

Smooth Sailing

For many businesses, times have been tough since the arrival of the COVID-19 pandemic and employers have had to focus on cash flow to keep their businesses alive. Employers have also had to help employees to adjust to a new (sometimes remote) working environment and, in some cases, the looming spectre of retrenchment. In this tension between managing finances and keeping employees happy and productive, labour problems have come up. How does one navigate through these issues well to ensure smooth sailing?

Employees are the lifeblood of any business but dealing with labour-related issues can be a nightmare for many employers.  Why do you need to handle these issues alone? Let us help you.  Our labour specialist can come to your premises for a consultation to understand the industry within which you operate, and your business specifically, and, if necessary, to assist with the following while you focus on cash flow and steering the ship:

  1. conducting an employment compliance audit to identify and remedy any shortfalls;
  2. providing you with an employment contract template specific to your needs;
  3. drafting or updating internal policies and procedures, including a Code of Conduct, Employee Handbook and Disciplinary Code;
  4. chairing of disciplinary hearings, poor performance and incapacity hearings as well as chairing internal grievances;
  5. drafting a mutual separation agreement;
  6. assisting you with retrenchment procedures, and implementing short time procedures;
  7. dealing with union negotiations and strike action;
  8. representing you at the CCMA, Bargaining Council and Labour Court; and
  9. training you and your management on the above.

These are unprecedented times for many businesses, and consulting a labour specialist to help address any complications that arise amongst employees can go a long way to ensuring smooth sailing for your business. Let us help you navigate these turbulent waters! Should you require more information about the above services, kindly contact Claire Delport on 031 266 2530 or claire@fouriestott.co.za #peoplematter

Know Who You Are Contracting With

Know Who You Are Contracting With

You find the house or car of your dreams. The seller is really cooperative and goes to great lengths to answer your questions. You conclude a sale agreement, arrange the finances, and then discover that the human being you were dealing with is not the owner of the house (or car) and the real owner (a trust) is not in a position to proceed with the sale.

When you enter into any contract, it is essential that you know who you are contracting with.  While this sounds obvious, it is in fact often overlooked by parties eager to sell their car, lease their premises, or acquire new clients, and it is generally only when the relationship sours, and the time comes to instruct attorneys to recover and/or litigate, that it becomes apparent that you in fact do not know who have contracted with.

When dealing with individuals, ensure that the spelling of their name, and their identity number as displayed on the contract, correlates with that in their identity book or driver’s licence.  Obtain a copy of a utilities bill which is in their name and which confirms their residential address.

When dealing with a juristic person (company, close corporation or trust), request proof of registration of the entity, alternatively, conduct your own search on the entity at www.cipc.co.za. Ensure that you have the correct name of the entity, the correct registration number, physical address and registered address, and confirm who the current office bearers (i.e. directors, members or trustees) are.  If you are concluding a lease agreement or credit agreement with a juristic person, be sure to have a human being sign as personal surety as well.

The last thing you (or we) want, is for you to take legal steps to recover amounts due to you by a debtor, only to discover that the debtor is a juristic person which was deregistered prior to the signature of the agreement, or that the directors have long since emigrated.

Should you require assistance with the drafting of any agreements, or instituting proceedings based on an agreement, please contact Claire at claire@fouriestott.co.za

Passing of Risk From Seller to Purchaser

Passing of Risk From Seller to Purchaser

The parties have signed the sale agreement, the conveyancers are busy with the transfer, and the buyer has taken occupation before transfer. Then the trouble starts – the buyer finds damp in the walls, the geyser bursts and the retaining wall collapses. Who is liable for the repairs? Determining the passing of risk from seller to purchaser is an important part of property transfer.

The person who holds the risk to the property is usually the person who is liable for all expenses and damage to the property, and who is entitled to the income and benefits in the property. In the context of a sale of immovable property, risk determines who must correct a defect or damage to something that happens after signature of the sale agreement.

Defects which existed at the time the sale agreement was signed are usually governed by the voetstoots clause. The purchaser is stuck with all visible (or patent) defects and those defects which were not visible at the time of signature of the sale agreement and of which the seller was unaware.

Sale agreements usually state the passing of risk from seller to purchaser. In most cases, risk in and to the property is transferred from the seller to the purchaser on date of registration of transfer. In certain instances, such as when the purchaser takes early occupation of the property, the risk in and to the property may be transferred to the purchaser from date of occupation.

Purchasers need to be aware of when the risk in and to a property is transferred to them as this will affect their obligation to pay for insurance, rates, water and electricity to the property depending on the terms specified in the sale agreement. Risk also relates to things that may go wrong while the purchaser has risk but is not yet the registered owner of the property, such as a geyser bursting: the seller may not be liable for such defects if the risk had already passed to the purchaser.

Therefore, parties need to be aware of when risk passes so that the obligation to repair defects or damages to the property does not become an expensive dispute between the parties.

If you need any help with your sale agreement or property transfer, we will gladly guide you. Contact Marchelle at marchelle@fouriestott.co.za or 031 266 2530. #peoplematter

Insolvency – Turbulent Waters

Insolvency – Turbulent Waters

It is a sad reality of the COVID-19 pandemic that many companies and individuals have been severely affected by the ongoing lockdown restrictions and economic headwinds. This has resulted in a sharp upturn in the number of companies facing either business rescue or liquidation. This includes directors who are tied in as sureties and could potentially face sequestration in their personal capacity. In such an overwhelming situation, many companies need help navigating the turbulent waters of insolvency.

 

There are various options available to companies facing this situation, whether it is a temporary cash-flow problem or a worst-case scenario where the company is facing insolvency and should liquidate as best it can. This situation also affects those companies who have weathered the COVID-19 storm, but now have increasing book debt because of customers who cannot pay.

 

We can help you with the following:

  1. Advising your company on how best to secure and recover your outstanding book debt with debtors before they are liquidated or sequestrated.
  2. If your company is in financial difficulty, assessing the best option available for your business. These options include entering into business rescue, compromising with creditors, or liquidation.
  3. Advising on all ancillary aspects of liquidation and sequestration.

 

For personal and professional advice contact Peter Feuilherade (peter@fouriestott.co.za), Chris Salmon (chris@fouriestott.co.za) or Claire Delport (claire@fouriestott.co.za). Our office number is 031 266 2530. #peoplematter

To Buy or Not to Buy During Covid-19?

To Buy or Not to Buy During Covid-19?

Property sales took off like a rocket last year as interest rates were reduced and travel plans scuppered as a result of the Covid-19 pandemic. You might be thinking about buying property during Covid-19 yourself.

It is yet to be seen how long this trend will continue, but current interest rates and restrictions on global movement appear to be set in for 2021. If you would like to read more, see Pam Golding’s Garry Meston’s commentary on current property trends and Dr Andrew Golding’s insights on the impact the Covid-19 pandemic has had on the buying trends of the various generations.

If you are thinking about or are already buying or selling immovable property, you are probably feeling overwhelmed by a sudden onslaught of information to retain and forms to complete. We hope that our newsletters breaking down the transfer process (from signature of the sale agreement to registration of transfer in the Deeds Office), transfer costs, compliance certificates, FICA and various other aspects will be of value to you in demystifying the transfer process.

Our role as conveyancers usually starts once the sale agreement is signed and finishes once the transfer is registered in the Deeds Office, however, Private Property’s Seller’s Guide and Buyer’s Guide are good resources for the ancillary aspects relating to the sale or purchase of immovable property from when you first start thinking about it until the moving vans have left.

If you need any help with your sale agreement or property transfer, we will gladly guide you. Contact Marchelle at marchelle@fouriestott.co.za or 031 266 2530. #peoplematter

Beware Early Occupation

Beware Early Occupation

The risks of allowing your purchaser early occupation of your property before it has been transferred into their name can be far-reaching and severe. The following are just some of the things that can go wrong:

 

  1. One of the parties can die;
  2. The purchaser may find a defect and refuse to proceed until it is remedied (the seller will then be at a disadvantage because the purchaser is in possession of the property);
  3. The purchaser may not pay occupational rental;
  4. The purchaser’s financial circumstances may deteriorate and the bank may withdraw the bond;
  5. The purchaser may make structural changes to the property without your permission;
  6. Something in the property (like a pool pump) may break and the parties will argue about who is responsible to repair it.

 

If your sale agreement is not worded clearly, the solution to the above issues may not be clear and this will cause a delay and possibly destroy the deal.

 

If you are considering allowing your purchaser early occupation into the property before transfer, you can mitigate your risks by paying careful attention to the specific wording of your sale agreement to ensure that it is clear with regard to the passing of risk, the duty to maintain the property, the apportionment of expenses, alterations/renovations and occupational rental. The agreement must be clear (or amended) before you let go of your keys.

 

If you need any help with your sale agreement or property transfer, we will gladly guide you. Contact Marchelle at marchelle@fouriestott.co.za or 031 266 2530. #peoplematter