Cancellation of contracts does not result in a reduction

Vicarious liability claims arising out of sexual harassment and the passage of time

The High Court recently emphasised the impact of prescription on a claim for vicarious liability arising out of sexual harassment in LM and South African Broadcasting Corporation . (2024) 45 ILJ 189(GJ) 

Revisions to the definition of “value-shifting arrangement” in the context of group reorganisation transactions

The notion of shifting value between shareholders of a company is generally a concern of revenue authorities in that, once a value shift takes place, one shareholder receives the benefit of value in the company at no or a reduced cost, while the other shareholder relinquishes value, notwithstanding there being no disposition event for tax purposes, or the transaction being deemed neutral under the ITA.

Carbon tax changes related to the renewable energy premium deduction and carbon offset allowance

To survive, or not to survive? Some conditions precedent pitfalls to look out for

One of the important aspects of written agreements being subject to the fulfilment or waiver of certain agreed conditions precedent, or suspensive conditions, (CPs) before the substantive provisions of the agreement become of force and effect, is the so-called “ surviving provisions/clauses ” (also known as “ immediately effective provisions/clauses ”). In the ordinary course, the crux of the transaction contemplated in such an agreement and the clauses relating to it are suspended from the signature date until all of the CPs are fulfilled or waived (if permissible and applicable) by an agreed date or dates (fulfilment date). If all of the CPs are not fulfilled or waived by the fulfilment date, the agreement effectively falls away and will be of no force or effect. However, it should be borne in mind that the parties to an agreement with CPs may very well intend for certain of the clauses in the agreement to come into force and effect from the signature date of the agreement and to survive the falling away of the substantive provisions due to non-fulfilment of theCPs. 

The definitive position on the courts’ ability to override existing orders

” If the errors and their consequences were not so serious, this appeal could be said to arise from a comedy of errors .” This was the opening sentence in a judgment by the Supreme Court of Appeal (SCA) in Standard Bank of South Africa v Swartz and Others (Case no 1175/2022) ZASCA 28. The appeal focused on errors the High Court made in granting a “ non-existent ” business rescue application and adjudicating issues which had been disposed of byagreement 

To institute or not to institute liquidation proceedings (that is the question)

It is a well-established principle in our law that insolvency/liquidation proceedings are not meant to be used for the recovery of a debt – the courts regard this as an abuse of (legal) process. Rather, the purpose of insolvency proceedings, as per Trengove AJ in Investec Bank Ltd and Another v Mutemeri and Another (O9/22247) ZAGPJHC 64 is “ to bring about a convergence of the claims in an insolvent estate to ensure that it is wound up in an orderly fashion and that creditors are treated equally ”.