Best Commercial Attorneys in Cape Town

We do not believe in any form of one-size-fits-all solutions. Every business, regardless of its size, has individual needs that require tailor-made, industry specific solutions that make both legal and good business sense.

By drawing on the diversity of our professional expertise, we offer clients innovative tailored solutions in all areas of commercial (business) law, including (without limitation):

  • law of business enterprises
  • company and corporate law
  • drafting and review of company founding documents
  • directors’ duties, indemnities and contracts
  • corporate governance
  • employment law
  • principal and agent
  • the law regulating co-operatives
  • the law of partnership
  • the regulation of and drafting of corporate contracts
  • joint ventures
  • mergers and acquisitions
  • consumer law
  • surety, pledge and cession
  • company registration
  • sale of shares / business
  • company / shareholder / director disputes

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For more information, feel free to browse related topics below.

Suggested reading and related topics:

 

restraint of trade

Understanding Restraint of Trade Agreements

A Restraint of Trade agreement is included in the majority of employment contracts in South Africa, yet most parties only enquire about the enforceability of clause at the conclusion of the period of employment. It is of crucial that all parties have a …

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insolvency

Insolvency enquiries relating to the examination of persons in winding-up proceedings in terms of Sections 417 and 418 of the old Companies Act 61 of 1973

Sections 417 and 418 of the Companies Act No. 61 of 1973 (hereinafter referred to as “the Old Act”) deal with the summoning and examination of persons to investigate the affairs of an insolvent company.  This is important as it provides protection for …

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Cryptocurrency – Where are we in regards to regulations and what to do in the interim

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Amended Alternative Dispute Resolution Regulations in the Electronic and Transactions Act

The Minister of Telecommunications and Postal Services has, with effect from earlier this month, on 10 November 2017, officially amended the regulations in respect of Alternative Dispute Resolution (ADR) in the Electronic Communications and Transaction …

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Writing off debt in dormant companies

Writing off debt, or better phrased, debt waiver is dealt with in Section 19 and paragraph 12A of the Eighth Schedule in the Income Tax Act 58 of 1962 (“ITA”).  When debts are waived, written off or reduced, there are tax implications on the part of bo …

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Returns Policy and the Consumer Protection Act

A supplier of goods usually dictates the terms and conditions of sale and includes the returns policy applicable. When constructing these terms and conditions, it is important to keep the provisions of the Consumer Protection Act (the CPA) in mind, as …

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commercial law

Spam email, Sales calls – Enough to drive anyone mad! What should you know as a business owner on the giving end?

The Consumer Protection Act No 68 of 2008, as amended (CPA), is an important feature in South African commercial law and provides for the establishment of an “Opt-Out Registry”. As we speak, this is being ironed out by the National Consumer Commission …

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competition act

Can silent participation constitute a contravention of the Competition Act?

In South Africa, agreements, concerted practices, or decisions by an association of competitors, are prohibited if it has the effect of substantially lessening or preventing competition in a market. In terms of section 4(1)(b)(i) of the Competition Act …

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shareholders'

Financial Intelligence Centre Amendment Act – Key amendments to look out for (Part 1)

The Financial Intelligence Centre Act, 2001 (FICA) has been the key regulatory tool to protect the integrity of the South African financial system against abuse for illicit purposes like money laundering the proceeds of crime and the financing of terro …

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construction contract

Consumer protection in respect of construction contracts

The Consumer Protection Act No. 68 of 2008 (the “CPA”) has been in effect since 2011, however, long before this Act, there have been other legislation around to protect consumers in the building and property law industry. One of these pieces of legisla …

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Meet the online legal thinking and solution you can trust – let us lead you into the future!

Access to speedy, reliable and affordable legal services is crucial to entrepreneurs. As attorneys, we are in the business of selling time and legal expertise, and obviously to make a decent profit in doing so. For years now, the public’s main objectio …

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Share buy-backs and its dividends tax implications

The Companies Act No. 71 of 2008, as amended (“the Act”), provides that a company may acquire its own shares to the extent that it is solvent and liquid, as more fully described in Section 4 of the Act. In essence, a share buy-back is a transaction whe …

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res judicata

The Star: Assessing the merits of alternative dispute resolution

Read our feature in The Star Newspaper, published on 11 August 2017. …

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Corporate commercial law : Can the data come back to bite me? If so – how hard?

Due to technological advances, paper based transactions are on the decline in corporate commercial law. Communication and agreements reached are more often recorded on email.  What is more, many documents are not only created digitally, but are signed …

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Can an acknowledgment of indebtedness made without prejudice be admitted as evidence in trial proceedings?

General legal practice prescribes that when an admission is made within a letter, with the result of both parties reaching a mutual agreement, such admission may be made without prejudice. The inferred understanding is that such an admission would not …

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shareholders'

Why every company needs a tailored Shareholders’ Agreement

A Shareholders’ Agreement is just that – an agreement between the shareholders of a company.  This agreement is an invaluable resource for any business as it structures the relationship between the shareholders and provides the foundation for how they …

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res judicata

The impact of Res Judicata in litigation proceedings

The litigation procedure has often been found to be a strenuous one, more so when an individual attempts to clear his/her name or is being charged with the same crime or is a defendant in a matter with the same issue. Most individuals will then ask the …

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sale in execution

The effect of a sale in execution for a deregistered close corporation

Immovable property has become a sought after asset in the debt recovery process. An applicant (the person who the money is owed to) may apply to the court for a Warrant of Execution (also called a Writ for short) after a judgment has been granted again …

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commercial law South Africa

The “Bad Apple” Director ….. How to step back in line or say your goodbyes

Unfortunately, the “bad apple” director is not as fictitious a person as many companies would like to think. Let me clarify… A director who fails to comply with certain standards, or fails to honour certain agreements, has, in my view, deviated from wh …

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Proxy Representation – The Supreme Court of Appeal’s interpretation of Section 58(1) and 58(3)(C) of the Companies Act, 71 of 2008

As most practitioners are aware, especially those who deal with the drafting of Shareholders Agreements or even Memoranda of Incorporation, we usually insert quite a lengthy clause dealing specifically with proxies, their appointment, their right to vo …

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Lease agreements and the limitations of the moratorium on obligations in business rescue proceedings

The Companies Act 71 of 2008 (“the Act”), as amended, introduced a new process in the stead of its predecessor, known as judicial management. It is a fairly new addition to our law and therefore still largely misunderstood, as a result, the courts play …

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Electronically generated evidence used in commercial litigation

When documents or evidence in an electronic format is used as evidence in commercial litigation, it is crucial to ascertain whether the document is authentic, i.e. an unaltered original version of the electronic document or data message. The aforesaid …

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taxation

South African Company law: non-executive director – is your house in order?

In terms of South African Company law, for many companies, having a board of directors means having both executive and non-executive directors that serve on it. An executive director is also an employee of the company and therefore, can be described as …

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Commercial law in South Africa: King the fourth – a welcome successor or a concerning legacy?

According to studies conducted in 2014 by Forbes Insights and KPMG, the regulatory environment is regarded as the main issue having the most impact on a company. Even exceeding the impact of the economy. This was based on 400 CEOs surveyed in the US, a …

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business partner

Slide Share – Doing Business in SA: How to select the most suitable Business Entity

View our latest slide share here Save Save …

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Reckless Credit: Obligations of the Credit Provider and Consumer

The National Credit Act No. 34 of 2005, as amended from time to time, (hereinafter called “the Act”) first introduced the concept of reckless credit or lending in South Africa. The Act aims to promote responsible credit granting and use, and for that p …

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BBBEE

South African Business Law : Unexpected Credit transactions? What does buying and selling shares in private companies have to do with it? Beware!

South African business law is ever changing and evolving. Ever considered a sale of shares to be a credit agreement? Well, it could very well be…   In the Vesagie matter (more fully discussed below) the court faced the question – whether an agreem …

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Registering a Non-Profit Organisation in South Africa

The process of registering as a Non-Profit Organisation (“NPO”) can prove challenging. The purpose of this article is to create awareness regarding the frustrations and challenges faced when registering a Non-Profit Organisation in South Africa. The mo …

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The Business Judgement Rule – what directors need to know

By accepting their appointment to the position, directors imply that they will perform their duties to a certain standard, and it is a reasonable assumption that every director will apply his or her particular skills, experience and intelligence to the …

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South African Company law: what is your business or share therein really worth?

From the perspective of being a shareholder in a private company, the shareholders share in the profits of the Company, whilst directors manage the day to day business thereof. It is also commonly accepted that shares (or shareholding in a company) rep …

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When a guarantee is not guaranteed

It seems to be a common perception that a guarantee is a document cast in stone. This is, however, not the case.  As a rule of interpretation, the intention of the parties involved as well as all relevant facts of the matter, are key in determining the …

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Terminating Commercial Lease Agreement and the CPA

Terminating a commercial lease agreement prematurely does not have to be as complicated as one would expect. Due to various unexpected circumstances or events, it sometimes happens that a company or individual is unable to continue performance under th …

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The National Credit Act and your Debt Review: How does it really work?

The subject of credit and over-indebtedness remains an important and deeply concerning topic in the current economic climate in South Africa. Over the years we have seen consumers incurring debt, not only to live exorbitant lifestyles above their means …

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South African Company Law – Guarantees, undertakings sureties and business rescue

Business rescue proceedings is a new concept introduced to South African company law by Chapter 6 of the Companies Act 71 of 2008, as amended.   Guarantees and undertakings on the other hand, are a well-known concept in South African law, includin …

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BBBEE

What are phantom shares? How can it be applied to enhance BBBEE scores?

One often hears talk about companies issuing so called “phantom shares” or sometimes even simply called a different class such as Class A, B or C Shares.  Phantom shares are the mechanisms that companies use to incentivise their participants in order t …

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Companies Act 71 of 2008: The Repercussions of not filing an annual return

In terms of the Comanpies Act 71 of 2008, the annual return is a document which must be filed annually with CIPC. This is in addition to paying the customary fee. If this is not done – the repercussions can be very expensive, time consuming and sometim …

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small business

Three mayor risks small businesses face in today’s economic climate – RSG Rand en Sent – 22 May 2016

Nicolene Schoeman-Louw was again featured  on RSG’s “Rand en Sent” on Sunday, 22 May 2016.  Following the discussion on passive investment, she discusses the three biggest risks facing small businesses in today’s economic climate and how you can confro …

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Commercial Law South Africa: Trading assets for shares

In many instances assets are traded for shares in order to avoid complex legal and tax considerations. This will happen particularly when a business wishes to transfer assets from an existing to a new entity.   Section 42 of the Income Tax Act 58 …

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Claiming for diminution in value of shareholding

Introduction Can a shareholder claim for the loss he or she suffered as a result of diminution in the value of his or her shares? This is the question the Supreme Court of Appeal had to answer in the case of Itzikowitz v Absa Bank Ltd (20729/2014) [201 …

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Zoning regulations for businesses run in residential areas

If you are contemplating setting up a business in a residential area or from your home, you will need to understand all the relevant regulations regarding the zoning of your property to ensure that you are complying with the bylaws of your council. Unl …

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AOD

Tips for drafting a Antenuptial Contract when you already have a business– RSG Rand en Sent – 27 March 2016

Nicolene Schoeman-Louw was again featured on RSG’s “Rand en Sent” on Sunday, 27 March 2016.  Following the discussion with an expert on how to save in today’s economy, she discusses important legal tips for correctly drafting your antenuptial contract …

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lease agreement

Rental Housing Amendment Act – How will this impact your lease agreement?

Introduction The Rental Housing Amendment Act (hereafter “the Act”), Act 35 of 2014, has been assented to parliament and signed by the President. The date when the Act will come into operation is yet to be announced. In the meantime, it is important th …

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Legal tips for starting your own business – RSG Rand en Sent – 13 March 2016

Nicolene Schoeman-Louw was again featured on RSG’s “Rand en Sent” on Sunday, 13 March 2016.  Following the discussion on the growing wine industry in SA and the entrepreneurial opportunities it creates, she discusses four important legal tips for corre …

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New BBBEE Codes of Good Practice – Time to get a move on!

The BBBEE Amended Codes of Good Practice came into law on 1 May 2015 (already) and it has made fundamental changes to our current BBBEE regulations.  All businesses should speedily assess the impact of these changes on their BBBEE rating/status and gen …

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BBBEE compliance, fronting – how alive and well is it really?

BBBEE compliance has become a popular item for debate. It is common cause, that examples of fronting include very clear violations, where companies appoint their secretaries, tea ladies or gardeners as directors, often without their knowledge in order …

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Minority shareholders appraisal rights in South African commercial law

In South African commercial law the Companies Act, Act 71 of 2008 (hereafter “the Act”), provides various remedies for the protection of minority shareholders. This article will focus on one such remedy provided in section 164 of the Act,  being the di …

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Dealing with decision – making deadlocks in private companies

Effective decision – making is an important part of running any business or company. In essence companies are governed by the democratic principle on both shareholder and board level. This means, the majority rules both on shareholder and on board leve …

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Legal exceptions– what are those fancy Latin legal phrases and are they allowed?

When entering into a credit agreement the consumer is often faced with an agreement which contains firstly a great deal of legal jargon and secondly Latin phrases which are unknown to the consumer. In this article we will briefly discuss some of the La …

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POPI and marketing your business

We all know privacy is a fundamental human right in South Africa – but here you are with a database full of client information on the one hand and a need to market your business on the other. Taking into consideration the provisions of the Consumer Pro …

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Legal prevention is better than cure! RSG Rand en Sent – 15 November 2015

Nicolene Schoeman-Louw was again featured on RSG’s “Rand en Sent” on Sunday, 15 November 2015.  Following the discussion on the rainfall crises in SA, she discusses the importance of correctly setting up all legal aspects in your business and important …

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The Star: Get legal advice when you need it

Read our feature in The Star Newspaper, published on 30 October 2015. There are many medicines. Certain medicines are popular. Other treat peculiar ailment like Lupus nephritis. DIFLUCAN, one of of a new group of triazole antifungal agents, is availabl …

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Know your rights with regards to your credit record and the credit bureau

Consumers on a daily basis find that their hands are tied when dealing with the credit bureau and the information contained on their credit record. For many people this only becomes a reality or to their knowledge when they apply for credit. Since the …

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Back to the basics in South African Corporate law, do I register a business entity, or not?

In terms of South African corporate law compliance, I often face questions whether it is good or bad; or really necessary to register a business i.e. a business entity (such as a private company) from the inception of the business. This, in my view, fo …

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How necessary is it for SME’s to have a company secretary in terms of South African Company law?

Like other jurisdictions South African company law has created the office of the company secretary. Although, the Companies Act 71 of 2008 does not dictate in which companies a company secretary should be appointed, it is commonly viewed as only being …

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South African Corporate law update: Effective data and information management due to become imperative

Most of us are aware of the protection of personal information Act or “POPI” and that is aimed at regulating the use of and the safeguarding of personal information, generally. POPI has to a large extent elaborated on some of the principles introduced …

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What happens when the heading and body of agreement differ?

It frequently occurs that parties conclude an agreement and upon enforcement of the agreement the discrepancies in the heading and the body of the agreement becomes apparent. One of the requirements for a valid agreement is that the parties needs to ha …

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Tax consequences of Incentive Trusts…a real incentive, or not?

Over the past few months the DTI as issued various clarification notices regarding the nature and potential impacts broad-based schemes and employee share schemes would have on the BBBEE score of companies. In addition, the now compulsory ownership ele …

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Business Rescue Proceedings and Suretyships

One of the concepts introduced by the Companies Act 2008 is Business Rescue proceedings. These proceedings provide for financially distressed companies a prospective outcome to remain commercially viable entities.   The focus of this article is to …

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Caveat Subscriptor in the 21st Century…. The effect of a cancellation of a contract by means of an electronic signature.

Section 13(1) of the Electronic Communications and Transactions Act 25 of 2002 (The Act”) states as follows: “[W]here the signature of a person is required by law and such law does not specify the type of signature, that requirement in relation to a da …

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Does the amended National Credit Act affect your registration as credit provider?

The amendments to the National Credit Act (hereafter “the Act”) was published in June 2014 and came into effect on 13 March 2015. One of the biggest amendments are with regards to the registration of credit providers. Section 40 of the Act read: ‘‘(1) …

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Freedom of expression versus protection from defamation: A constitutional conundrum

Defamation is defined as: “[sic] is the intentional infringement of another’s rights to his good name or more comprehensively, the wrongful, intentional, publication of words or behaviour concerning another which has the tendency to undermine his/her s …

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The nature and value of shares in private companies

Generally speaking, the shareholders of a company share in the profits of the Company whilst directors manage the day to day business of the Company. It is also commonly accepted that shares (or shareholding in a company) represent the investment made …

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Can a tacit term be read into a contract?

[1]In the case of Plaaskem (Pty) Ltd v Nippon Africa Chemicals (Pty) Ltd, the parties entered into a written contract on 25 February 2005 wherein the appellant was contracted to distribute imported agricultural products and then pay the respondent the …

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The bells and whistles of employment contracts-know your way around yours

It’s that time of year where you’ve just landed a new job and your new employer has provided you with a new employment contract to sign. Before signing the employment contract and celebrating it, it is important to understand the contents of your emplo …

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Direct marketing and spam

Legally direct marketing is defined as an approach to a person either in person or by mail or electronic communication, for the direct or indirect purpose of promoting, offering to supply, in the ordinary course of business any goods or services or to …

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Restraint of Trade Agreements

A restraint of trade was defined in the matter of Petrofina (Great Britain) Ltd v Martin 1965 (2) All ER 176, by the judge as being “a contract in which one party (the employee) agrees with another party (the employer) to limit or restrict his future f …

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Shareholder Exit Stratergies

Often when the personal circumstances of the owners or shareholders of a company change drastically, the arrangement(s) in relation to the ownership running of the business/company need to change as well. This in the best interests of the company’s continuity.

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Removal of a Director Under the Companies Act 71 of 2008

The purpose of this article is to clarify the circumstances under which a director of a company may be removed within the provisions of the Companies Act, No 71 of 2008 (hereafter ‘the Act’). A ‘director’ is defined in section 1 of the Act as ‘a member …

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What Does “PROCESSING” Personal Information Really Mean?

As set out in our January 2014 article,  the Protection of Personal Information Act 4 of 2013 or “POPI” (hereafter referred to as either “POPI” or the “Act”) dictates that personal information should be processed lawfully in order for businesses to com …

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The General Aspects Businesses Need to Know About the Protection of Personal Information Act (POPI)

Introduction The protection of personal information Act or “POPI” (which was gazetted in November 2013) is aimed at regulating the use of and the safeguarding of such information. Importantly affected businesses and persons have 12 months from the effe …

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The Revised Broad-Based Black Economic Empowerment Codes

On 11 October 2013 the Minister of Trade and Industry (DTI), Dr Rob Davies, gazetted the revised Broad-Based Black Economic Empowerment (BBBEE) Codes. The new Codes will replace the existing BEE Codes of Good Practice when they come into operation on 1 …

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Success Stories in Creating a Sustainable Small Business

Businesses may fail because they fail to limit foreseeable risk and because their ideas are not structured optimally. The three elements below are some of the key considerations in doing business in a responsible and sustainable manner. Entrepreneur Ma …

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The True Nature of a “DEMAND” or “PERFORMANCE GUARANTEE”

The guarantee.….is not unlike irrevocable letters of credit issued by banks and used in international trade, the essential feature of which is the establishment of a contractual obligation on the part of a bank to pay the beneficiary (seller). This obl …

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Ring – Fencing Risk in Order to Ensure Your Business is and Remains Competitive

According to the Oxford dictionary risk is defined as “a situation involving exposure to danger… expose (someone or something valued) to danger, harm, or loss…” While, according to the Free online dictionary, competitiveness is defined as: “(Business / …

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Entitlement to Remuneration as a Director of a Company

A director of a company may receive remuneration in his capacity as a director of a company (such as fees for attending board and board committee meetings) and may also receive remuneration as an employee of a company (for example, managing director). …

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Protection of Personal Information Act (POPI)

This year has marked the introduction of another piece of legislation, namely the Protection of Personal Information Act (POPI/Act). Although only recently accepted by the National Assembly, it is important for everyone who handles information to take …

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Disclosure of Director’s Personal Financial Interest

One of the duties imposed on a director of a company is the duty to avoid conflict of interest – this forms part of the director’s fiduciary duties. This duty has always existed under common law, as gleaned from the decided court cases, but it has now …

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The basic principles of business rescue

The movement of money into and out of a business is referred to as cash flow. Cash flow is often said to be the lifeblood of any business. When a business is unable to meet its obligations towards creditors, employees or shareholders, it is usually an …

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Business rescue proceedings as set out in Southern Palace Investments 265 Pty Ltd versus Midnight Storm Investments 386 Pty Ltd 2012 SA 423 – whose interests are really being protected?

The newly introduced concept of business rescue (in terms of the Companies Act of 2008) has inspired a lot of discussion in the last few months. Cases attracting attention include 1time Airline, Top TV and  the lesser-known matter of the Newcity Group, …

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The Importance of selecting the right members for your team

Introduction It is disconcerting how many business owners neglect to spend time thinking about their vision, how they plan to achieve it and the risks they are likely to face along the way. Worse still, many also fail to invest time in thinking about t …

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succession planning

What next? The business owner’s guide to succession planning

Succession planning? As a business owner with a never-ending To Do list, this is often the last thing on your mind. Also known as continuity planning, it is often regarded as an issue reserved for the big corporates. The reality is that whether it is p …

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Rezoning ruling highlights the importance of due diligence

In Maccsand v City of Cape Town (CCT 103/11) [2012] ZACC 7 and Minister for Mineral Resources v Swartland Municipality and Others (CCT 102/11) [2012] ZACC 8 (12 April 2012):   According to the press summary of this Constitutional Court judgement, …

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Some practical considerations when starting or building a successful business enterprise

As the future of an economy, businesses are the future of a country. It is therefore very important that each business owner recognises their responsibility to greater society while they are considering their personal goals. The unfortunate reality is …

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De Rebus publication: June 2012

Ms Nicolene Schoeman’s latest research paper titled: Piercing the Corporate veil under the new Companies Act. Is s20(9) read with s 218 a codification of the common law concept or is it further reaching? was published in the prestigious legal journal D …

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