THE LAW – Your legal guide to the Lowveld

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Frans Schutte & Mathews Phosa (FSMP)Incorporated is more than a law firm. It is the coming together of great minds focused on empowering the people of Mpumalanga. The two directors, together with five attorneys and a staff complement of 70, make a formidable team.

Directors Mr Frans Schutte and Dr Mathews Phosa are both respected figures in the Lowveld. Schutte has made name as a successful game farmer, businessman and attorney and Phosa as a businessman, attorney and politician. With their combined wealth of knowledge, experience and wisdom, the potential for growth is unlimited.

The firm has this in common with Mpumalanga – an ever-expanding province with a blossoming economy. Establishing a law firm that focuses on commercial law was a joint decision that now seems to have been inevitable. Schutte and Phosa met through their shared interest in game farming. Their friendship was formed effortlessly, grounded in mutual respect.

Both are family-orientated men who practise the law and do business with the end goal of empowering people.
Phosa, a commercial lawyer at heart, initially suggested that they join forces as legal partners. It soon transpired that a commercially focused law firm would be much appreciated in the region.

Thus, Frans Schutte Incorporated, a successful third-party specialist firm, has expanded to include offices in Polokwane and a new corporate-focused firm located in Mpumalanga’s capital under the helm of Frans Schutte and Mathews Phosa Incorporated. Phosa’s brilliant skills as a mediator, arbitrator and negotiator, combined with Schutte’s relentless, take-no-prisoners approach to litigation ensures that their clients’ interests are served without fail. Armed with both men’s wisdom, no client will approach the legal battlefield unprepared.

“A law firm is more than a business,” says Schutte. “It is a place where people with talents, ideas, emotions and challenges come together,” he adds. The firm has a caring, understanding approach to its clients; this is reflected in its slogan – “legal expertise with you in mind”. Here, all clients are equal, regardless of where they come from and what their status may be.

Schutte and Phosa head a highly qualified team of legal experts which delivers diligent and relentless services. Each individual member brings a wealth of knowledge to the table. Together, the team boast decades of legal experience on a national level.

Dr Mathews Phosa
BProc LLB (UNIN) and PhD (HON) in Law (Boston University, USA)

Mathews established the first black-owned law practice in Nelspruit, Mpumalanga in 1981 under the name Phosa, Mojapelo and Makgoba Attorneys and worked as a partner until 1985 – when he was forced into exile by the apartheid government. A year later he became the regional commander in Mozambique of Umkhonto we Sizwe (MK), the military wing of the ANC. He has since become a renowned politician and businessman. After the first democratic elections in 1994, Mathews was appointed as the first premier of Mpumalanga. However, business remains his first love and he has a special interest in commercial law.

Frans Schutte
Juris et Comm (PU), BProc (SA)

Frans obtained his B Juris et Comm and BProc degrees during 1983 and has been practising as an attorney since 1985, specialising in personal injury law.
His practice, originally located in White River, has since expanded to Mbombela and Polokwane. Frans is known as an expert High Court litigant. He is also a macadamia nut and game farmer.

Celesté Gebhard
LLB (UP)

Celesté obtained her degree at the University of Pretoria in 2007 and was admitted as an attorney in 2009. She practised in Pretoria for seven years, gathering a wealth of experience in litigation, commercial law, labour law, the Consumer Protection Act, family law, debt collection and personal injury claims. She also completed a Certificate in Advanced Labour Law as well as a Certificate in Dispute Resolution. Celesté is an associate at Frans Schutte and Mathews Phosa Incorporated.

Amanda Potgieter

LLB (PU)
Amanda received her LLB degree from the North-West University, Potchefstroom campus in 2008. She was admitted as an attorney in 2011 and joined Frans Schutte Incorporated in January 2012. Amanda is now an associate at the firm and specialises in personal-injury claims and litigation.

Gerrit van der Nest

LLB (UP)
Gerrit received his degree from the University of Pretoria. He was admitted as an attorney (with right of appearance in the High Court) in 2007. He joined Frans Schutte Incorporated in September 2011. Gerrit is an associate at the firm and specialises in personal-injury claims, third-party and insurance claims and medical-negligence matters.

Jeremie Bezuidenhout

BProc LLB (PU)
Jeremie obtained his BProc LLB degree at the University of Potchefstroom. He served his articles as a candidate attorney at Frans Schutte Incoproprated in 2001. He was admitted as an attorney on January 31, 2002. Jeremie is an associate with the firm and specialises in personal injury claims.

FSMP Mbombela is a corporate law-focused firm. It specialises in Magistrate’s and High Court litigation, commercial law, labour law, family law, debt collection, personal-injury claims, dispute resolutions and conveyancing.

38A Murray Street
Tel: 013-752-2598
Fax: 086-725-8217
E-mail: [email protected]
www.fsmp.co.za

FSMP White River is a dedicated law firm focused on personal-injury claims emanating from motor-vehicle accidents as well as medical-negligence claims.

19 William Lynn Street, Strydom Centre
Tel: 013-750-1726
Fax: 013-750-1729
E-mail: [email protected]
www.fsmp.co.za

The address clause of a contract is not something to be filled out without thinking twice. This is the warning from attorney Mr Slungu Joseph Thobela. He consulted the case of Shepard vs Emmerich to provide clarity on the topic. “Apply your mind to the domicilium clause and familiarise yourself with the processes related to legal notices and summons,” he added.

Thobela suggested that locals make sure their addresses reflect correctly when dealing with legal matters. It all starts with understanding the term “domicilium citandi et executandi”.

In simple terms, domicilium citandi et executandi means the address one elects for the purpose of receiving all legal notices and processes. This applies to all contractual arrangements including, among others, the entering of lease agreements, loan agreements and financial agreements. Identifying your domicilium citandi et executandi entails inserting a street and email address upon which notices of breach, letters of demand or court processes can be served.
But is it as simple as that? Should more attention be given to the clause during the drafting stage? On appeal, the Gauteng local division, Johannesburg considered the validity of the service of a summons at a contractually chosen domicilium citandi et executandi in the matter of Shepard vs Emmerich (A 506/2013) [2014] ZAGPJHC 120.

In the matter, the domicilium clause was contained in an addendum to a sale of business agreement, concluded between the appellant as the purchaser, and the respondent as the seller. In terms of the agreement, the seller elected the second floor of its firm of attorneys and named someone as recipient. The purchaser issued summons against the seller for payment of a sum of money based on the agreement.

The summons was served by the deputy sheriff which, according to the return of service, was effected on the seller’s legal representatives at the chosen domicilium citandi et executandi. This service was done by “affixing a copy of the combined summons to the principal” of the domicilium address.
Strictly speaking, since the service was not affected at the second floor of the domicilum address and was not marked for the attention of the named person, it did not comply with the provisions of the domicilium clause in the agreement between the parties.

The court a quo accepted that prior to the service of the summons, the firm had moved offices from the domicilium address. The court also noted that the intended recipient had resigned from the firm. Consequently, the summons never came to the attention of the seller and judgement by default was subsequently sought and granted.

Accordingly, the seller launched an application for rescission of the default judgement. The application was opposed and the court a quo found that the service was defective. The purchaser appealed the judgement. On appeal, the court (full bench) found that the double provision in the domicilium clause provided for service on the second floor, which was not compiled with, and the second requirement was a reference to the recipient which was also not compiled with.

It is important to note from the judgement that the court stated that although the firm had moved and that the named recipient had resigned, this was immaterial as it did not and could not change the requirements for a proper service. Had the service been affected in accordance with the domicilium clause, even though the summons did not come to the attention of the seller due to the changed circumstances, it would have constituted proper service.

As a result, the appeal was dismissed as the purchaser did not adhere to the provisions of service as stipulated in the domicilium clause. It is imperative, therefore, that at a drafting stage the domicilium clause is not merely regarded as a standard clause but as one to which more attention should be paid. Interpretation of the domicilium clause will down to the wording used. Parties and their attorneys must apply their minds to the domicilium clause and familiarise themselves with the said process of legal notices and summons. Quo vadis? Consult a legal expert on any questions before putting pen to paper.

MT Silinda & Associates, formerly known as Silinda Mokoena & Associates Attorneys, specialises in several aspects of the law. The firm is 100 per cent black-owned and operates in Mbombela. Since it was founded in 2000, it has become known for its professional service. It has achieved prominence by serving empowerment companies. For the team at MT Silinda & Associates, providing cost-effective legal services of high quality is a priority.

Its services include civil and commercial litigation, conveyancing and notarial registrations. The firm deals with trusts and aspects of public finance. Clients in need of legal advice regarding commercial transactions, foreclosures and business-rescue procedures need not look any further. MT Silinda & Associates also handle all aspects of insolvency, labour litigation and dispute resolutions. Its attorneys also have experience in mining, manufacturing and property law, as well as sports and entertainment law and that of telecommunication.

State organs, municipalities and corporate entities such as banks trust the firm with legal briefs. It is no wonder – the firm is continuously engaged in legal research and development exercises on various aspects of the law. This ensures that clients benefit from advice based on the latest in South African legal development.
Founder, MT Silinda is well known in the Lowveld. He obtained his BA and LLB degrees from the University of KwaZulu-Natal in 1996. Silinda was admitted as an attorney in 1999 and as a notary and conveyancer in 2002.

He has extensive experience in property law – a very exclusive niche in the legal field. In his capacity as conveyancer, he has done business with leading banks and government parastatals. Silinda has also assisted in the formation of legal entities on behalf of the Department of Land Affairs, Mpumalanga’s Regional Land Claims Commission and that of Limpopo.

He proudly heads one of the fastest-growing and leading black law firms in Mpumalanga. This distinction stems from its depth of insight, having been involved in various landmark infrastructure development projects. His team is known for its resourcefulness – no task is too big for the legal experts at MT Silinda. The team includes associate directors MD Ramothwala, SC Mdhluli, TB Vukeya and VD Ngobeni.

The firm enjoys a close working relationship with its clients. Its attorneys have an in-depth understanding of clients’ problems, which enables them to react with the right legal advice.

This is done timeously with minimum complications and sensitivity to delicate negotiations. MT Silinda adheres to professional ethics of keeping its client’s matters confidential, and undertakes not to disclose their matters to third parties unless required by legislation.

Have someone to deal with your affairs after you pass on

The administration of deceased estates is a complex process, requiring the assistance of a credible and experienced executor or agent.
Christelle de Wet of Swanepoel & Partners Inc says that the best way to ensure that your assets are distributed according to your wishes is to draw up a will, and to appoint your attorney as executor to deal with your assets.

You may also appoint a family member as executor, together with your attorney. The attorney will have specialised knowledge of the administration process and will be able to give effect to the provisions of your will and wind up your estate.

The process starts by reporting the estate within 14 days from the date of death to the Master of the High Court, who will appoint the nominated executor of the estate.

The executor is required to collect the deceased’s assets, settle all liabilities, pay any legacies and distribute the balance of the estate to the heirs in terms of the will or of the Intestate Succession Act, if the deceased died without a will.

Contact Christelle de Wet at Swanepoel & Partners Incorporated on 013-753-2401 for professional assistance.

The ins and outs of an alter-ego trust

In the Supreme Court of Appeal judgment in REM vs VM 2017 (3) SA 371 (SCA) we finally, as of March this year, have a definite answer to alienations of property to a discretionary trust as a manner to engage in “preventative estate planning prior to divorce”.

The judgment in the REM case makes it clear that the asset values of an alter-ego trust may now be taken into account in marriages that are subject to the accrual system in terms of the Matrimonial Property Act 88 of 1984. The power to pierce the veneer of an alter-ego trust stems from the common law and exists independently of the Divorce Act.

When dealing with a trust that is merely the alter ego of one of the spouses, the first step to prove is the so-called “control test” and the next step is to determine whether the applicable matrimonial property regime imposes an obligation on the divorcing spouses, which one of them has attempted to evade by means of the alter-ego trust.

The REM judgment has thus contributed to making piercing a more viable remedy for aggrieved spouses.

For any further advice on alter-ego trusts, contact Mr Siebrits, one of the directors at Swanepoel & Partners Incorporated at 013-753-2401.

SJ Thobela Attorneys is the firm you want to handle your medical-negligence and third-party claims. The firm’s Slungu Joseph Thobela explains that medical negligence, sometimes referred to as malpractice, is the failure on the part of a medical professional or health-care provider to meet the standards of good practice in the field in which he/she practises.

Thobela Attorneys ensures maximum compensation for clients on a contingency (no-win-no-fee) basis, popularly known as a contingency-fee agreement. They also handle third-party claims and their record in this field speaks volumes.

Thobela elaborates on medical negligence. “It is a delict,” he says. This means that a wrongdoer commits a wrongful act, causing damage to another. The latter claims damages in the form of compensation from the former. This often happens to patients of public hospitals.

The following are the most frequent forms of medical-negligence claims encountered on a daily basis:

Surgical errors and complications, maternal and gynaecological injuries, birth injuries, anaesthesia-related claims, paediatric claims, delayed referrals for proper diagnosis and treatment, treatment errors, brain and nerve injuries, orthopedic negligence, ophthalmic-surgery negligence and retinopathy of prematurity (ROP).

These terms may sound foreign. However, Thobela Attorneys is experienced in and simplifies these claims.
The firm has a special interest in matters such as ROPs – an avoidable cause of blindness. Premature babies are known to develop this potentially blinding disease if not carefully treated. The firm is in the position to refer its clients to highly respected experts who ensure the best possible chance of success in such claims.

Medical negligence relating to ROP may include on the part of the hospital or paediatrician:

• Failure to constantly monitor and correct oxygen levels in your baby’s blood
• Failure to refer your baby to an ophthalmologist for an eye examination.
On the part of the ophthalmologist:
• Failure to inform parents about the need for regular follow-up eye examinations
• Failure to perform constant and appropriately timeous follow-up eye examinations
• Failure to property diagnose ROP in its early stages
• Failure to timeously and properly treat ROP so as to avoid irreparable harm.

If your child was born prematurely and has become blind due to ROP, the team at Thobela Attorneys will assess your case at no cost in order to determine whether medical negligence played a part in the blindness and whether you have a case.

What damages can you claim for your child as a result of blindness in relation to ROP?

• Cost of medical treatment related to blindness
• Cost of having a driver or assistant
• Cost associated with additional therapists to maximise your child’s potential
• Loss of earnings.

Thobela Attorneys will need your hospital and medical records to assist you. The team promises to assist you in your mother tongue.

Meet the team

The staff consist of SJ Thobela, who specialises in medical malpractice, conveyancing and environmental law. The rest of the staff includes Mthobisi Thobela, who specialises in criminal and environmental law. Farouk Mokoena specialises in wills and estates. Lufuno Ramarumo specialises in personal injury claims, road-accident fund cases and third-party claims. Ruan Wessels and Sizo Sambo are the firm’s candidate attorneys. Ronnie Mashaba is the paralegal and Vusi Nobela, a property valuer. Office administrators Felix Mabaso and Douglas Mhlanga also form part of the team, as do office assistants Patson Malaza and Michael Sibiya. Sanele Lekhuleni is the litigation secretary and Fikile Mhlanga, the office manager.

Front: Slungu Thobela, (back) Mthobisi Thobela, Ruan Wessels, Sizo Sambo, Farouk Mokoena, Lufuno Ramarumo.

The Consumer Protection Act, act 68 of 2008 and the effect thereof on reasonable cancellation of a fixed-term lease agreement

By Monique Walters (Attorney) & Luca Pringle (Candidate Attorney)

The Consumer Protection Act, Act 68 of 2008 (hereinafter referred to as “the CPA”) applies to the supply of goods and services within South Africa. The CPA further includes within section 1 of the Act, the definition of a “service” as inter alia the “the provision of access to or use of any premises or other property in terms of a rental…”. It is therefore evident that the CPA applies to lease agreements and by extension to fixed term lease agreements.

Prior to the CPA becoming effective in 2011, cancellations of lease agreements were governed by the law of contract as well as the common law of South Africa. However, since the commencement of the CPA on 1 April 2011, early termination and cancellation of leases have been afforded protection by the Act.

The CPA affords the Lessee of a lease agreement the right to cancel their lease agreements on condition that the Lessee complies with the formal legal process as provided for by the CPA. Correct compliance with this process will ensure that the Lessee’s actions do not amount to breach of contract and by extension; the Lessor will not have legal remedy against the Lessee in terms of breach of contract, but will rather have legal remedy in accordance with the provisions of the CPA.
Fixed term contracts are governed by Section 14 of the CPA. It is to be noted that Section 14 of the CPA does not apply to juristic persons irrespective of their turnover or asset value. Section 14 is therefore likely to exclude most, if not all, commercial lease agreements.

Regulation 5 of the CPA, states that the default maximum period of a fixed term agreement is 24 (twenty four) months. There are however exceptions to this period, namely;

1. If a longer period has been expressly agreed to by the parties;
2. If another regulation with specifications pertaining to an industry, sector, type of agreement, type of consumer, etcetera, provides otherwise; or
3. An industry code is applicable.

Cancelation of a lease agreement in terms of Section 14 of the CPA ought to be done professionally, in writing, giving at least 20 (twenty) business days’ notice. As mentioned before, this notice does not amount to breach of contract but does however force the Lessee to pay for those twenty days’ rental. This rental payment is to be made pro rata.

Once the Lessor receives the aforementioned notice, the CPA places an onus on the Lessor to immediately advertise the relevant property with the aim of securing a new tenant to occupy the property. The costs of the necessary advertisement will be payable by the Lessee.

In order to recuperate losses of the Lessor due to the early termination of the fixed term lease by the Lessee, section 14(3)(b)(i) allows for the Lessee to be liable for a “reasonable penalty” which is to be in favour of the Lessor. Take note that “reasonable penalty” is not defined in the Act and as such a wide criteria is taken into account when determining same. In practise all damages actually sustained and proven can be claimed, provided that the Lessor took steps to mitigate his loses.
Regulation 5(2) illustrates criteria which are to be taken into account in determining the basis and value of the reasonable penalty in each circumstance. The penalty is generally one of incidental costs that the Lessor underwent due to the early cancellation by the Lessee, the consequent search for a new tenant and of course the rental for the period wherein the relevant property stood vacant without a new tenant.

The main basis however when considering the reasonable penalty applicable to a lessee will be one of actual damage and costs suffered by the Lessor due to the early cancellation. The penalty cannot be one of financial benefit in favour of the Lessor and further cannot be a predetermined amount, for example three months rental in advance payable by the Lessee.

In conclusion, the early termination of a fixed term lease agreement is allowed and is afforded protection in terms of the CPA. This protection is subject to compliance with the requirements laid out by the CPA. The purpose of Section 14 is that each party walks away from the agreement without having undergone any undue prejudice.

This article serves only as general information and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. You should always contact your legal advisor for specific and detailed advice.

Du Toit Smuts & Partners go green with AdSolarTech

Du Toit Smuts & Partners recently invested in going green at their office complex in Mbombela. Here is an aerial view of the remarkable work done by AdSolarTech.

Off-grid Energy Solutions

It is possible to install a solar system that is independent of the electrical grid. This is called an off-grid system, and it requires that the solar panels are able to produce enough electricity to cover 100% of the energy needs of the building. Most homes have higher electricity demand in the evening or at night, so off-grid systems usually incorporate either a battery (to store energy produced during the day), a backup source of energy (like a generator), or both. Off-grid systems are more complex and less flexible than grid-tied systems.

Off-grid systems are most common in remote locations without utility service. Off-grid solar-electric systems operate independently from the local utility grid to provide electricity to a home, building, boat, or RV (or remote agricultural pumps, gates, traffic signs, etc.). These systems typically require either a battery bank (to store solar electricity for use during nighttime or cloudy weather) a backup source of energy (like a generator), or both. An off-grid solar system must be large enough to produce enough electricity to cover 100% of the energy needs of the building. In all off-grid scenarios, electrical usage must be monitored and kept below the maximum output of the panels and batteries as there is no grid-source to supply excess power.

For more information, or solar related enquiries, visit the AdSolarTech Website

Adendorff-Theron

Need legal help? You’ll find all the assistance you need here:

Clea Hattingh
087-985-0808

Employers’ Organisation of Mzanzi
013-752-7337

Kruger and Partners
013-745-5300

MT Silinda
013-755-2572

Singwane & Partners Attorneys
013-752-8262

Tarwa Attorneys
013-752-6364

Dube Attorneys
013-752-5093

Esselens Engelbrecht
013-790-0898

Madonsela Attorneys
013-752-7927

Nkosi Attorneys
013-752-5667

Supercare Labour Law Consultants
013-712-6684

Thobela Attorneys
013-752-4512

Du Toit Smuts & Partners
013-745-3200

Frans Schutte & Mathews Phosa
013-752-2598

Markus Saayman Inc
013-753-2782

Philip Meyer Attorneys
013-751-2189

Swanepoel & Vennote
013-753-2401

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