How binding is a suretyship agreement contained in the terms and conditions of an application for credit?

Typically the credit application contains a clause like this:

By his/her signature hereto, the signatory hereby interposes and binds himself as surety and co-principal debtor in solidum for the due faithful and punctual performance of all obligations undertaken by the abovenamed Applicant in favour of the Creditor, under renunciation of the legal exceptions of excussion and division, the full meaning and import of which he is fully conversant with.

The Consumer Protection Act requires a credit provider to:

·        Provide consumers with prior written notice of clauses in agreements that may constitute a potential risk or liability to consumers.

·        Specifically draw the fact, nature and potential effects of risks to the attention of consumers, in a conspicuous manner and form, to which the consumers accordingly accept responsibility.

On that basis, the terms and conditions should have a preamble in bold, something like this:

IMPORTANT NOTICE. The CLIENT’s attention is drawn to the penalty for early cancelation in paragraph 5, the authority to increase the debit order amount in 6.4, the indemnity in paragraph 7.4 and the surety provisions contemplated in paragraph 7.6.

The CPA came into effect in 2010. Before that, in the matter of Brink v Humphries & Jewell (Pty) Ltd 2005 (2) SA 419 the Supreme Court of Appeal held that the suretyship was invalid as the signatory had not known, or been informed that the document embodied a personal suretyship.

The Court was of the view that:

(1)  The suretyship agreement must have a prominent heading which proclaims that it is such.

(2)  The clause containing the suretyship must be conspicuous.

(3)  The form must identify that the signatory is signing in their capacity as surety.

(4)  The signatory must sign as surety.

The CPA reinforces that decision.

Restraint of trade - establishing a protectable proprietary interest.

In Super Group Trading (Pty) Ltd v Naidoo and another, the court enunciated the criteria for enforcing a restraint, namely whether:

·        there was a contract of employment between the employer and the employee, which included as one of its terms, the restraint of trade;

·        the employer has any proprietary interests warranting protection;

·        the employee breached the employment contract with the employer and was in breach of the restraint.

The legal position where an employer seeks to enforce a restraint of trade agreement on the basis of a risk of harm to its trade connections and in particular its connections with its customers, is as follows. The need of an employer to protect his trade connections arises where the employee has access to customers and is in a position to build up a particular relationship with the customers so that when he leaves the employer’s service he could easily induce the customers to follow him to a new business. A protectable interest in the form of customer connections does not come into being simply because the former employee had contact with the employer’s customers in the course of their work. The connection between the former employee and the customer must be such that it will probably enable the former employee to induce the customer to follow him to a new business. Based on the facts, the Court found that the applicant did not establish a protectable proprietary interest.

How healthy are you, legally speaking?

Legal Health Barometer

I invite you to go through the following assessment to see if you need legal help.

Marriage

Are you married?    Yes □ No □

If so, are you aware of the pitfalls of a marriage in community of property? Yes □ No □

Do you know that you can convert your marriage in community of property to one out of community of property, to protect the assets of one or both spouses?

Cohabitation

Are you living together? Yes □ No □

Do you know that there is no such thing as a “common law marriage” in our law and that if you choose not to get married, you do not enjoy the same protection as married couples? Yes □ No □

To protect yourself, you should conclude a cohabitation, or life partnership, agreement.

Wills

Do you have a will? Yes □ No □

If not, why not? If you appoint me as the executor of your will, I won’t charge you to draft the will.

Noisy Neighbours

Do you live in an urban area? Yes □ No □

If so, are you troubled by noisy neighbours, and do you know what your legal remedies are?

Property

Are you about to buy or sell a property? Yes □ No □

Do you know how important it is to have an independent inspection done so that both parties know what defects may exist? In this way, you can avoid legal disputes once the ink on the paperwork has dried.

Are you a landlord or a tenant? Yes □ No □

Are you aware that there is a legal obligation on the landlord to invest your deposit in an interest-bearing account, and on the part of both parties to inspect the leased premises on taking occupation and on termination of the lease?

Employment Law

Are you an employer or an employee? 

Are you aware of your legal rights and obligations concerning your employment relationship? For example, if your employee is underperforming, do you know what steps you have to follow to improve performance or, if necessary, take steps that may lead to his or her dismissal?

Company Act compliance

Are you a director of a company or do you hold an executive position?

Yes □ No □

If so, are you aware of your responsibilities as a director or a prescribed officer, and the consequences (such as personal liability or even criminal prosecution) if you do not comply strictly with the provisions of the new companies act?

Consumer Protection Act

Are you aware of the provisions of the Consumer Protection Act? Yes □ No □

The rights of the consumer are entrenched and it is very important that a supplier of goods or services revisits its application for credit and terms and conditions, to make sure that it is fully compliant with the act.

Divorce Mediation

Are you in an unhappy relationship and considering divorce? Yes □ No □

If so, have you given thought to approaching an accredited divorce mediator to facilitate a resolution of the dispute? Adopting this approach will minimise the stress and certainly save you a great deal of money. A holistic approach is always a better option.

Deceased estates

Have you recently lost a loved one? Yes □ No □

We offer a free initial consultation to discuss the quickest and most cost-effective way of finalising your loved one’s deceased estate, thereby giving you peace of mind during your period of bereavement.

Rights of grandparents

Are you a grandparent?  Yes □ No □

If so, do you experience any difficulties in seeing your grandchildren?

Divorced spouse lives overseas

Are you divorced and do your ex-spouse and children live overseas? Yes □ No □

Do you have adequate contact with your children?

Estate Planning

Did you know that if you die with an estate worth more than R3.5 million, your estate will pay the taxman estate duty of 20% on the surplus? Yes □ No □

Have you considered minimising this effect by careful estate planning?

Can I change my child’s surname after a divorce?

Q  I am divorced and remarried. My ex-husband has no contact with the minor children and I would like to change their surname to my married name or, perhaps, give them a double-barrelled name. Can I do so?

A You need the ex’s consent (or a court order) to change their surname.

You would need the dad's permission to acquire sole guardianship (or to change the children’s surname). If he refuses, you will have to approach a SA court to appoint you as the sole guardian of the children. Once that happens, the father falls out of the picture.

 I would have to send him a strongly worded letter seeking his permission and indicating that if he refuses, you will be left with no choice but to apply to court, seeking a costs order against him. On the strength of that, he may well relent, in which event I would need to prepare an affidavit for him to sign, supporting your unopposed application to acquire sole guardianship. 

If he doesn't respond to my letter or if he refuses to consent, you must approach the court for an order appointing you as sole guardian. 

Once you have the ex’s approval or court order, you would approach Home Affairs to change the surname of the minor children. Check out http://www.dha.gov.za/index.php/amendments

Same- Sex Couples and Paternity Leave

The maternity leave options contemplated in terms of the Basic Conditions of Employment Act, 1997 ("the BCEA") provide that:

·        A mother has the right to four months of unpaid maternity leave in terms of the BCEA. 

·        This does not apply to male employees, who, at law, may take three days leave in terms of their family responsibility leave. Any other leave must be part of their annual leave.

In the case of M I A v State Information Technology Agency (Pty) Ltd [2015] JOL 33060 (LC) a married male same-sex couple had a baby with the assistance of a surrogate mother in terms of a surrogacy agreement as envisioned in the Children's Act (No. 38 of 2005).  Following the birth, the child was the entire responsibility of the couple.

One of the dads applied for "maternity leave", but was turned down because the company’s maternity policy applied only to females.

The judge hearing the dispute ruled that:

·        The judge hearing the dispute ruled that:

·        The wellbeing of the new born infant necessarily requires a devoted and full time care giver, particularly in the first months of life. 

·        The best interests of the child were paramount, as is required by both the Children's Act and the Constitution of South Africa. 

·        The employee, as the parent of the child, should be allowed to play that role, even if he had not physically given birth to the infant. 

·        There was was no reason why the employee was not entitled to the benefit of four months of unpaid maternity leave.

Review your maternity leave policies.