Acknowledgement of debt containing all the necessary terms for a valid acknowledgment of debt
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Additional Clauses for Sole Agency Agreement Providing as to Contracts Concluded on behalf of the Principal and also as to Purchase by Agent on Own Behalf
The law of agency in South Africa is predominantly regulated by
common law, and the Consumer Protection Act, 2008 (“CPA”). There
are further requirements imposed by legislation in South Africa which
relate to specific transactions and in particular those concluded by
agents.
Common law still remains the primary regulator of the law of agency
in South Africa.
The Common Law
The common law recognizes two “types” of relationships between
agent and principal, namely, a relationship of representation and a
relationship of mandate.
In a relationship of representation, the agent is entitled to perform
juristic acts on behalf of the principal, and, as such, acts as the
representative of the principal. In order to do this, the agent requires
authority to so act, which may arise from:
(a) a unilateral grant of authority from the principal (express, tacit
or implied); or
(b) by operation of law.
The extent to which the agent may incur legal obligations on behalf of
the principal depends on the extent of authority granted.
A relationship of mandate involves a bilateral contract in which one
person (the mandatory), undertakes to perform some lawful task on
behalf of another (the mandator). The mandatory may be
remunerated, and the obligation to remunerate depends on the
contract of mandate between the mandator and mandatory. As a
general proposition, the mandatory is not the mandator’s
representative and therefore does not have the authority to incur
legal obligations on behalf of the mandator.
The role of the mandatory is thus limited to bringing about an
opportunity for the principal to enter into, vary, or terminate a contract
or a contractual obligation but the mandatory does not do so on the
principal’s behalf.
Modern commercial transactions are predominantly concluded
through representation agency relationships, as such the law detailed
below refers to the law governing such relationships unless the
context indicates otherwise.
Any agency relationship must not contemplate conduct by the agent
that is against the law, immoral or contrary to public policy. To the
extent that an agreement contemplates such conduct, it will be void.
The common law distinguishes between general and special agents.
A general agent is an agent who is authorized to act for a principal in
all transactions of a particular nature, or in all matters concerning a
particular business, or in all transactions that the principal could
perform personally. On the other hand, a special agent is an agent
who is engaged by a principal for a particular transaction or a
specific, limited purpose. Once this purpose has been achieved, the
agent’s authority will automatically terminate.
The CPA
The definition of “franchise agreement” under the CPA is broad
enough in scope and includes the type of transactions and
contractual terms which are sometimes included in agency and
distribution agreements.
Thus an agency agreement may, if certain restrictive provisions are
imposed on an agent, constitute a “franchise agreement” as
contemplated by the CPA. As such, provisions which allow the
principal/supplier to dictate and impose inter alia business conditions
and reporting obligations on an agent/distributor, could find
themselves in a deemed franchise relationship and in turn attract
additional obligations to their agents/suppliers in turn.
Formal Requirements
Certain additional requirements are required for specific transactions
under the applicable governing legislation. In terms of the Alienation
of Land Act, 1981 in order to alienate land via an agent, the agent
must have authority in writing. Furthermore, the actual alienation of
land must be contained in a deed of alienation signed by the parties
thereto (or the agents with written authority). If either of the above
requirements are not met, the purported alienation is void.
The General Law Amendment Act, 1956 which governs suretyship
agreements, holds that no suretyship agreement will be valid unless it
is concluded in writing. However, the authority of the agent to
conclude such an agreement need not be in writing.
If an agreement does not fall within the aforementioned categories,
the principal may confer authority to the agent either orally or in
writing and the agent may conclude any agreement, within the
authority conferred, either orally or in writing.
However, it is advised, for any transaction, that both the conferring of
authority and the agreement be reduced to writing in a formal
agreement. This allows for the principal to clearly define the extent of
the agent’s powers as well as the terms of the appointment in a
manner which substantially reduces the risk of a potential dispute.
Individual/Corporate Entity
An agent may be either an individual or legal entity. In light of the
broad definition of an “employee” under the South African Labour
Relations Act, it is important that the formal agreement which gives
rise to the agency relationship plainly illustrates that the relationship
between the parties is one of principal/agent and not
employer/employee.
Exclusive/Non-Exclusive
There are no restrictions on the ability of a principal to appoint an
agent on an exclusive or non-exclusive basis. If this issue is not dealt
with in the agency agreement, the agent will be deemed non-
exclusive.
Given that the essence of an agency agreement is the conferral of
the principal’s peculiar powers onto an agent, the principal is entitled
to determine the extent and exclusivity of the powers so conferred.
Duties of an Agent
The agent has a number of obligations towards the principal when
performing under the agreement.
The agent must ensure that they personally carry out the terms of
their agreement with the principal. The agent is not entitled to
delegate the task to another without the principal’s consent. Any
permitted delegation will not give rise to privity of contract between
the principal and the sub-agent, although the sub-agent will still owe
fiduciary duties to both the principal and agent separately.
Conferral of Authority
Authority can be conferred from the principal to the agent in three
ways:
(a) expressly granted;
(b) tacitly granted; or
(c) implied by law.
Authority can be expressly granted orally or in writing, except where
legislation specifically says that authority must be granted in writing.
Authority may also be tacitly granted if a grant of authority can be
inferred from the principal’s words, conduct and the surrounding
circumstances.
Termination
Formal Requirements:
The authority of an agent may be terminated in the following ways:
(a) the source of the authority ceases to exist;
(b) performance;
(c) effluxion of time;
(d) principal’s death, insanity, insolvency;’
(e) the agent’s death or insanity;
(f) the special relationship granting authority ends;
(g) if authority derives from a contract, via the ordinary rules of
contract governing termination; and
(h) through revocation or renunciation.
The relationship of principal and agent terminates when both parties
have fulfilled all their obligations, either entirely or substantially.
The Common Law
The South African common law places great emphasis on privity of
contract, affording the parties the right to contract on their own terms,
within the confines of public policy. To this end, a valid and binding
contract is created when agreement is reached, orally or in writing, on
the basic terms of the agreement at hand. The common law does not
provide for distribution agreements specifically. Instead, the general
principles of contract apply to distribution agreement .
The Consumer Protection Act
The CPA seeks to provide protection to “consumers” from abuse by
“suppliers.”
As a general point of departure, the CPA imposes certain formalities
in respect of all transactions that qualify as being subject to the CPA.
This includes that all agreements must be in writing and must to be
written in plain and understandable language. In the context of
distribution agreements, plain and understandable language would
be that which is understood by people within the industry, of average
literacy skills and minimal experience.
The CPA further prohibits unfair, unjust and unreasonable terms, and
prevents the supplier from requiring a consumer, or other person to
whom goods or services are supplied at the direction of the
consumer;
(a) to waive any rights;
(b) assume any obligation; or
(c) waive any liability of the supplier, on terms that are unfair,
unreasonable or unjust.
Furthermore, such terms may not be imposed as a condition of
entering into a contract. As such, any terms in an agreement,
including those terms relating to price and definition of the main
subject which are in breach of the above terms, would be subject to
legal challenge by the relevant consumer.
In addition, there are four types of clauses which must be brought
to the attention of the consumer in a conspicuous manner. These
include:
(a) exemption clauses;
(b) assumption of risk clauses;
(c) indemnity clauses; and
(d) acknowledgements of fact clauses.
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Additional clauses that could be used in the settlement agreement, such as pension clause and immovable property clause.
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Deed of adiation setting out the details of accepting to waive benefits from massed estate and stipulating that all the details have been explained clearly to the surviving spouse.
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Advertisement of Lost Certificate
Advertisement of Lost Certificate
If you have lost or misplaced your share certificates of any company,
you need to immediately inform the police and respective company, of
which you had the shares. You will be required to quote the folio number
and details of share certificates to the company for their reference
Certain steps should be followed by the shareholders and Company
when the Share Certificate of a shareholder is lost or misplaced:
Steps to be taken by Shareholders
Shareholders should take the following steps after the loss or
misplacement of their Share Certificate:
• the shareholder should immediately inform the company about
the lost or misplaced share certificate;
• the communication of the information can be done through a letter
to the address of the company, or an email can be sent to the
company. This serves as proof of keeping the company informed;
• the details of the lost or misplaced share certificate need to be
disclosed. This includes the name, address, folio number, and
share certificate number.
Steps to be taken by the Company
The Company should take the following steps after loss or misplacement
of a Share Certificate:
• once the information is received of the lost or misplaced share
certificate, the company should freeze the transfer for at least 30
days to prevent any fraudulent transfer or illegal proceeding of the
transfer.
• after completing the procedure of company registration, the entity
should guide the shareholder on the issue of a duplicate share
certificate once the shareholder’s identity is established.
What are the Documents Required for the Issue of Duplicate Share
Certificate?
The Documents required for the Issue of a Duplicate Share Certificate
are as follows:
• prepare an indemnity bond agreement on non-judicial stamp
paper.
• an affidavit is prepared on a non-judicial stamp paper.
• F.I.R should be filed with the police with full information on the lost
Share Certificate. The details required of the Share Certificate are
as follows:
1. name on the share certificate;
2. folio number on share certificate;
3. share certificate number;
4. the distinctive number of shares.
An advertisement should be published in the newspaper about the fact
of the lost share certificate.
There are companies which will take the ad charges and place the ad on
your behalf. This charge may vary from company to company. Or, at
times, a company may allow the share holder to publish the ad on his
own after obtaining the ad format from the concerned company. Then,
the copy of the ad is sent to the company as a proof.
Once this procedure is completed, a duplicate share certificate is issued
to the shareholder (if there is no objection to the same within the time
frame mentioned in the public notice).
While looking for right place to advertise the lost certificate in the
newspaper, the most important things to consider are the cost factor, the
ad design, creativity and the type of ads being placed.
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Affidavit in support of the application under I009 stipulating that the applicant is the owner and that the title deed has been lost or destroyed and reason thereof.
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Affidavit in support of form H004 whereby the details are set out in support of the application for certificate of registered title of an undivided share.
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Affidavit verifying loss of share certificate
Affidavit Verifying Loss of Share Certificate
A share certificate is legal proof of ownership of a company. It is a
signed document, signed by the directors of the company, and shows
information such as the name and surname of the individual, the identity
number of the person, residential address, the quantity of shares owned
and the actual share numbers owned.
Share certificates are not issued by CIPC the registrar of companies, nor
does CIPC keep track of the ownership of your company at the present
time. They keep track of directors, namely people responsible for the
company legally and appointed by the shareholders. Subsequently all
share certificates, share registers are supposed to be maintained by the
directors of the company in a company register.
The modern world is electronic. Many workplaces have gone paperless,
and even personal transactions are no longer confined to physical
document exchange. However, remnants of old systems and habits
remain and there are certain areas in which paper documents remain fairly
common. One of those areas is in the representation and trading of stock
shares.
By some estimates, there are as many as 50 million paper stocks
certificates remaining in circulation. Individual investors keep these
documents in various locations, ranging from organized files in a
safe-deposit box to cardboard boxes in the garage. No matter the system,
physical certificates are often misplaced or destroyed accidentally. In such
cases, the stockholder will need to replace the documents, a process that
starts with the completion of an affidavit of lost stock certificate.
Steps the Shareholder Must Follow if a Certificate Is Lost
Each company’s procedures may vary. However, there are some steps
that the shareholder must follow. First, the shareholder must describe
the loss and any facts surrounding the loss in an affidavit. Second, the
shareholder may be required to purchase an indemnity bond. The
purpose of the bond is to protect the corporation and the agent in case
the lost certificate is somehow redeemed by another party at a later
date. (Think of it simply as additional insurance).
When the necessary information has been provided and the necessary
steps are taken, a new certificate will be issued.
The Bottom Line
Losing a share certificate can be remedied by contacting the company's
investor relations department. This department will inform the
shareholder how to contact the transfer agent who can place a stop
payment on the shares and reissue a new certificate. The shareholder
may have to complete an affidavit and purchase an indemnity bond.
However, stock certificates are no longer needed in today's world of
electronic communication, and even if an investor loses their certificate,
they still own the shares.
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Agenda for Director’s Meeting
A board meeting agenda serves as the roadmap for the chair and acts
as the driving force of your meetings. It helps you move between
meeting subjects and addresses all business items, while not dwelling
too long on specific issues that are better addressed in committee
meetings.
The Companies Act regulates board meetings in section 7 which
provides that, among other things, the minutes must include
declarations of personal financial interests and resolutions adopted, as
well as that minutes are evidence of the proceedings at the meeting.
Minutes of board and board committee meetings form part of the
company’s records and can be held as hard copies or in electronic
format, but must be capable of being reproduced in hard copy form.
(In this regard refer to sections 24(1) and 24(3)(f) of the Companies Act).
The decision on which format to use should be confirmed at a board
meeting and formally recorded.
For companies, directors’ fiduciary duties and the duty of care skill and
diligence are partly codified in section 76. Fiduciary duties include, but
are not limited to, a duty to act in good faith and in the best interest of
the company, a duty to act within the limits of authority and to exercise
powers for a proper purpose, a duty to maintain an unfettered discretion
and a duty to avoid conflicts of interests.
Section 75 places specific obligations on directors when dealing with
personal financial interests and it is crucial to minute that such
procedures were followed where applicable.
The purpose of minutes is to provide an accurate record of the decisions
made (including resolutions passed and actions decided on) at the
meeting with sufficient context on key discussion points to demonstrate
that the directors discharged their duty of due care, skill and diligence to
enjoy protection of the business judgement rule.
Minutes provide evidence that directors met their statutory and
regulatory duties, as well as the responsibilities set out in the board and
committee charters. Minutes should provide sufficient context to enable
the person reading the minute to understand key discussion points
between participants in arriving at the conclusion.
The function and content of minutes will vary across sectors and
between companies.
Minutes of board meeting are internal records of the company and, as
such, shareholders have no legal right to see board minutes. However,
as noted above, some organisations such as regulatory bodies may
choose to publish minutes of board meetings and associated papers.
Careful consideration should be given to a decision to publish details of
internal matters in this way and consideration should be given to the
potential impact on this important decision-making function within the
organisation.
Auditors sometimes request to see board minutes as part of their audit
inspection. Some companies will allow this, others only allow the audit
partner to read the minutes, and others will only allow them to see
specific minutes.
In some regulated sectors, the regulator will request copies of board
minutes.
What is Required:
• Your board meeting agendas do not always have to look the same.
Change your board meeting by turning your agenda upside down
and addressing the most important (and potentially game-
changing) information first. It is much easier to generate new ideas
when board members’ minds are fresh.
• Note if a topic is meant to inform, seek information, or arrive at a
decision. Knowing the end goal of each given board meeting
agenda item makes it much easier to achieve it. Otherwise, you
may reach your objective without realizing it and then waste time
looking for another solution you do not need.
• Allot a set amount of time for each agenda item. If you do not
reach the desired conclusion, keep it on the board meeting agenda
for next time, and focus on solving the problems that you can right
now. If everyone knows it is time to move on, wrapping up the
discussion is much easier.
Once you have created a board meeting agenda with actionable
discussion points and key decision-making items, you should share it
with your board members.
Sharing it in advance gives members the opportunity to fully prepare and
actively contribute, especially if they are assigned to cover one of the
items.
With sufficient review time, your board meeting agenda will give board
members some level of detail about discussion items and inspire
provocative questions to bring up to initiate effective collaboration.
When documents and reports are attached to the board meeting
agenda, members can review them at their leisure and use meeting time
for discussion. Or, better yet, they can focus on the strategic issues
facing your non-profit. After all, your board meetings should focus on the
future of the organization.
By sending your board meeting agendas out in advance, members can
relax knowing the meeting is under control and that all pressing issues
are accounted for.
On a similar note, you should try to include any pertinent information that
arises during a board meeting. Remember, boards have legal liability,
and minutes serve as an official and legal record. In a legal arena,
meeting minutes are presumed to be correct, so keep language clear
and simple to avoid any complications. Use these details as a strong
starting point:
• The meeting place, date, and exact time it was called to order;
• The type of meeting (regularly scheduled, special, or called);
• Full names of the meeting participants and absentees;
• Each motion, including who made it, who seconded it, and what
the outcome was;
• Action items and next steps;
• Next meeting date and time;
• Time of adjournment.
The Set Protocols for Taking and Approving Minutes.
Once your meeting minutes are complete, you need to have some
actionable next steps set in place to quickly finalize them and distribute
them to board members in a timely fashion. Your best bet is to have a
checklist that keeps you on track.
Improve your digital strategy by using technology to your advantage and
taking minutes on a laptop. This way, it is much quicker to jot down
important information and reorder it as you go when discussion varies
from the agenda. Not only is this much more efficient, but when working
from home, there’s an increased need for a more technological
approach.
Be sure to efficiently type keywords, brief sentences, and notations
directly onto the agenda. Then, outline any series of suggestions and
comments in a bullet-point style for quick reference.
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Agenda for general meeting
Under most constitutions an Annual General Meeting is a General
Meeting, although the definitions can sometimes make this a little
unclear. All meetings of the organisation are general meetings unless
they are extraordinary or special general meetings and have their own
special requirements.
It is important to remember that an AGM is another version of a general
meeting though specific matters, which are only dealt with once a year,
form the agenda.
There is any number of topics that will attract members and interested
parties. There is an aim to make the AGM itself done and dusted as
quickly as possible whilst noting that elections and constitution change
might take up some time.
Thereafter, it is normal to finish the event with a social activity: lunch,
drinks and snacks, including good networking time. Certain companies
also ensure that nametags are provided, which will generally make the
conversation flow more easily and increase networking productivity.
A company will publish the program well in advance so as to encourage
people to come and stay since it is presented as an occasion worth
attending.
The AGM Agenda
The agenda usually contains the following elements:
1. The welcome and apologies;
2. The Minutes of the previous AGM;
3. The President’s report;
4. The CEO’s report (if applicable);
5. Presentation of Financial reports;
6. All company constitution amendments (if any);
7. Elections;
8. Life Memberships (if any);
9. Appointment of the Auditor for the next financial year.
There is usually no general business item on the agenda though it can
be included to encourage discussion amongst those who have given up
their time to attend.
The agenda for an AGM can sometimes be a very speedy affair
especially if there are no or few elections. It is often worthwhile
considering having a speaker come along and talk on a topic of interest
whether it be someone who has successfully represented your sport or
club, someone who can talk about governance (always a crowd pleaser)
or perhaps some thoughts on marketing and strategic planning at a high
level, for the benefit of everyone whether on a club committee or sport
association board.
Who Attends AGM’s and Who has the Right to Vote
Attendees at AGMs include the directors of the organisation, its
members including life members and any guests who may be invited.
Only voting members may vote at AGMs. For most sports bodies the
voting members are, for clubs their members, for state sport
associations, their member clubs, and for national sport organisations,
their member states in an ordinary federated model.
Individuals who are members of clubs are not entitled to vote at their
company association AGM unless on behalf of their club. Life members
are not entitled to vote but are usually, as of right, entitled to attend and
to speak.
It is up to the board to decide who, other than voting members, is
entitled to speak at AGMs. In order to encourage attendance at what
most people usually think of as a very boring way to spend one’s time, a
decision may be made to allow any interested person to speak on a
topic though the vote remains with the voting members.
The directors or the organisation will attend, may speak but usually do
not vote.
The Minutes of the previous AGM
The minutes of the previous year’s AGM are presented for approval at
the next year’s AGM. They are not presented at a board meeting or any
other general meeting.
When a motion is put to approve and second the minutes only people
who were present at the previous AGM can move and second the
minutes and only those in attendance at the previous AGM can vote to
accept or approve the minutes.
It is uncommon to send draft minutes to those in attendance at the
meeting, in the manner of draft board minutes being sent to board
members within a week or two of the board meeting. Rather, the draft
minutes are sent with the notice of the next AGM which gives anyone
who wishes to, time to revise the draft minutes and then raise any
missing item or error at the AGM itself.
The annual report should contain, as a matter of record:
• The President/Chairman report;
• The Secretary/CEO report – sometimes it is appropriate for these
two to be combined;
• Board members, including any changes in personnel during the
period;
• Staff, including changes;
• Subcommittee and working group members;
• A summary of the strategic plan’s progress;
• Awards dinners and other social events with photos;
• Results from competitions;
• Programmes and projects run by the club/association;
• A list of members by category or class;
• Thanks and acknowledgement of sponsors and supporters;
• Anything else that is relevant to your organisation.
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