LESSONS WHEN ADVERSITY CALLS

LESSONS WHEN ADVERSITY CALLS

LESSONS WHEN ADVERSITY CALLS

When adversity calls, then lessons are learnt.

 

Lessons that are invariably difficult but also enriching.

 

We are taught the lessons that in difficult times some people whom you thought friends will turn their backs on you and completely ignore you, others who were and are the real friends come through in an exemplary fashion and what is even more thought provoking, there are those people whom you did not even expect to show support, who show up unexpectedly and shine through like a blinding light.

 

Then there are those who under the guise of help, albeit not friendship, will abuse your weakened position for their own selfish advantages and think nothing of it, like a sociopath rumbling through life at the expense of others.

 

Deep heartache and treachery prevail when past friends not only turn their backs on you, but also judge you even whilst lacking all the true facts, or those who as a journalist under the false pretense of a past friendship tries to extract information from you purely for their own selfish benefit.

 

Is this the world that we have come to live in? Maybe it is just people being people as they have been for thousands of years? I do not believe there is a quantifiable answer to this dilemma nor do I believe human nature will ever change.

 

The most valuable lesson is to appreciate those who come through and give you their support in whatever form or feature it may take, and to be truly appreciative of the blessing that you receive, not only by the support but also for the opportunity to get rid of those who were never your friends to begin with.

 

As the Master does

As the Master does

As the Master does

People often ask me what it means to master Life. Of course, it is a question that requires deep thought and reflection, yet I believe the answer is simpler than we think.

Let’s take a step back and see what causes us so much pain and distress, and then find the opposite.

Our difficulties come from struggling, resisting and forcing outcomes to be as we want them to be. In the struggle we lose ourselves, our joys and our peace. The opposite way of being is then to allow Life to unfold as it will.

Allowing Life takes up far less energy. Our religions and wisdom traditions all teach us that we cannot control Life. All will happen in its time. There is a time for everything. We have been given these words for a very good reason – TO ENJOY LIFE AS WE ARE LIFE.

To master Life, something very important needs to be understood: the master waits patiently, for he knows the right people will come at the right time and his input will be perfect. A master doesn’t chase after others or money or fame. A master is a master, after all.

Not for a second do I suggest we shouldn’t participate in Life; in fact, our participation is key for Life to unfold in glorious, unexpected directions. The next question is then, how does one participate as a master does? This question also requires thought and reflection, yet it can be so simple – with love and excitement and humour. Haven’t we been told to be like a child? So how are children? They ask questions, become excited and amused by even the smallest little things, they naturally love all of Life, people, animals, insects. They eat only when hungry, they play, they sing and dance. They love their little bodies and are fearless.

We have been told to become like little children again. Might this be what is meant when asked to be twice born? I think so.

Imagine a world where we can play and trust and Love without reservation! Imagine how your Life will be if you could be like a little child again – of course, you would have the experience and wisdom of an adult, but the innocence and joy and Love of a little child.

Take some time out and observe a two-year old interacting and going about her business. Do it with purpose, uninterrupted and with the distinct idea of learning something about living fully. Hear her laugh, listen to her sing, see how she plays in the mud and has bugs for friends. Look at the quality of her entertainment, feel her full-being hug, copy her wonder at learning something new.

For she allows Life to happen as Life happens. She trusts that she is cared for and wakes up every morning with a song.

Who then is the master? The learned adult on medication, wishing for the drama to end and fighting for love and control, or the two-year old who sings and laughs and plays?

As the master waits for people to come to him, the child waits for people to come to her. As we give, we receive.

Is it possible to become like a child again? Absolutely. Will this bring mastery? It cannot be any other way.

EXECUTORS APPOINTMENT

EXECUTORS APPOINTMENT

EXECUTORS APPOINTMENT

EXECUTORS APPOINTMENT IN TERMS OF THE ADMINISTRATION OF ESTATES ACT, ACT 66 OF 1965 – THE EXTENT OF THE MASTERS POWERS

 

 

  1. The Master ,if all reporting documents are in order, appoints the Executor in an Estate.

 

  1. Every appointment by the Master, is in terms of Section 95 of the Administration of estates

            Act (‘the Act”), is subject to appeal or review by the court at the instance of an aggrieved

            person.

 

      3.

3.1 A testamentary Executor is a person nominated as such in terms of the Will of a deceased person.

 

             3.2  An executor dative is someone not nominated in the deceased’s will for example the

            deceased died without leaving a will.

 

  1. The entire administration process revolves around the office of the Executor. Sometimes it is not the executor himself who administers the estate, but an expert such as an attorney whom the Executor appoints as his/her attorney. It however remains the responsibility of the Executor to ensure the proper execution of this task as executor.

 

  1. An Executor is legally vested with the administration of the Estate.

 

  1. In terms of Section 14(1)of the Act, the Letters of Executorship, must be issued by the Master

on the written application of the person nominated in terms of the deceased’s will as the Executor. The will must of course be registered and accepted by the office of the Master.

The Master may however refuse to issue letters of Executorship to a person nominated as Executor on the grounds that the nomination is or should be declared invalid.

 

  1. If the Master out of his own volition considers a nomination as invalid, it is up to the nominated person or any interested party to bring an application to Court to determine the validity of the appointment.

 

  1. Apart from instances where the validity of the will is placed in question, the Master may refuse to grant letters of Executorship or to endorse or to sign and seal them, as the case may be-
    • if the person to whom letters of Executorship are to be granted, endorsed or signed and sealed resides or is outside the Republic and has not chosen domicilium citandi et executandi in the Republic( own emphasis); or
    • if such person, if appointed, could be removed from office on the grounds set out in section 54(1)(a)(ii), (iii) or (iv), or on the ground set out in section 54(1)(b)(iii). These gounds are the following-
  • if the executor has at any time been a party to an agreement or arrangement whereby he has undertaken that he will, in his capacity as Executor, grant or endavour to grant to, or obtain or endavour to obtain for any heir, debtor or creditor

of the estate, any benefit to which he is not entitled;

  • if he has by means of any misrepresentation or any reward or offer of any reward, whether direct or indirect, induced or attempted to induce any person to vote for his recommendation to the Master as executor or to effect or to assist in effecting such recommendation; or
  • if he has accepted or expressed his willingness to accept from any person any benefit whatsoever in consideration of such person being engaged to perform any work on behalf of the estate;
  • if he/she is convicted , in the Republic or elsewhere , of theft, fraud, forgery, uttering a forged instrument or perjury, and is sentenced to imprisonment without the option of a fine, or to a fine exceeding R 2000.00 (own underlining)

 

  • if such a person fails to satisfy the Master by a declaration under oath that letters of executorship have not already been granted or signed or sealed by any other Master in the Republic.
  • In terms of Section 22(1) of the Act, a person whose nomination has been refused by the Master, has fourteen days after such refusal or such further period as the court may allow, to apply to court for an order restraining the grant of letters of executorship or their endorsement, as the case may be.

 

  1. It is submitted that the Master can only refuse the appointment of a nominated Executor in terms of a valid will if the grounds as prescribed in terms of paragraph 7.1 and 7.2 above and not for any other reason except on account of a court order to that effect. If the Master does so, it is further submitted that such a decision would be ultra vires.

PIERCING THE CORPORATE VEIL

PIERCING THE CORPORATE VEIL

PIERCING THE CORPORATE VEIL

PIERCING THE CORPORATE VEIL:  A BRIEF SYNOPSIS ON NAMIBIAN COMPANY LAW

 

  1. The courts in following South African case law on the subject matter, have for the most steadfastly applied the principle that a company is a distinct legal entity, separate and distinct from the shareholders who comprise it, and the courts have generally refrained to go beyond the Corporate Veil and attach liability to the individual shareholders.

 

  1. However and because of the fact that the corporate structure of a company have and can be abused, the courts have on occasion, pierced the Corporate Veil.

 

  1. The difficulty in analysing when a court will pierce the Corporate Veil has been marked by inconsistent judgements, for example:

 

  • In the matter of Lategan vs Boyes (1980), the court expressed the view that a South African court would not be prepared to disregard the Corporate Veil except upon proof of fraud.

 

  • In 1994 the South African Appellate Division confirmed that the circumstances under which a court would generally pierce the Corporate Veil would include an element of fraud or other improper conduct in the establishment or use of a company[i]

 

  • The following year (1995) the South African Appellate Division explained in another matter that the lifting of the Corporate Veil shifts the focus from the company to the shareholder behind it or in control of its activities, similar to the situation if there was no division between the company and that particular person.[ii]

 

  • Unfortunate the law is not yet settled as to the circumstances when a Corporate Veil should be lifted, but it is important to remember that each case involves an enquiry into the particular facts.

 

 

 

 

  1. Some instances where the courts have pierced the Corporate Veil relate to inter alia the following:

 

4.1       To give effect to the intention of the Legislator:

When the parties had not honestly arranged their affairs in order to evade some provision by proceeding to dress the company up in some sort of disguise.  Such an act is said to be in fraudem legis.[iii]

 

4.2       To prevent the consummate of fraud or breach of Fiduciary Duties:

It is trite law that now person could ever hope to pursue the court to lift the Corporate Veil in order to enable him or her to escape the consequences of what could clearly be a fraudulent use of the company’s separate legal identity.[iv]

 

4.3       To prevent improper evasion of obligations.

            In another matter, the Directors where held personally liable to a seller who had sold goods to the Company at their instance at a time when the Directors had known that the company was insolvent and totally unable to pay for the purchase, i.e, the sole purpose of this transaction was to diminish the personal liability under the contract of suretyship.[v]   It appears that the basis of the courts’ decision in this matter was really that when Directors ordered goods there is an implied representation by them that they believe that the Company will probably be able to pay for the goods, so if the actually know that there is no such likelihood,  they are committing a fraud.

 

 

  1. Piercing the Corporate Veil by the Legislature

 

  • Unlike the courts, the Legislature has by the its very nature found no difficulty in piercing the Corporate Veil, for example in terms of Section 429 of the Companies Act, if it appears during the winding up that any business of the company was or is being carried on recklessly or with the intend to defraud creditors of the company or of any other person or for any fraudulent purpose, the court may on application by the Master, liquidate a judicial manager or any creditor, member etc. declare that any person who was knowingly a party thereto shall be personally responsible without any limitation of liability for all or any of the debts of the company as the court directs.
  • It is therefore clear that the purpose of Section 429(1) is clearly to attach personal liability on any person who was knowingly a party to the fraudulent and reckless carrying on of the company’s business.

 

  • It is important to remember that the onus is on the person alleging that the business has been carried on fraudulently or recklessly, to establish the facts on the balance of probabilities.[vi]

 

  • The remedy provided by the aforesaid section complements the common law remedies available against wrongdoers who cause injury to third parties by their dolus or The Section accordingly permits the court to extend the company’s liability to those who can be shown to have carried on the business fraudulently or recklessly.[vii]

 

  • In the Ex Parte Lebowa matter the court explained that the term ” recklessly” was used in contradistinction to the term “fraudulently”. It therefore implies the existence of an objective standard of care that would be observed by a reasonable man in concluding the business of the company.  The test for recklessness is objective in that the action of the director is measured against the standard of conduct of the notional reasonable person and it is subjective in so far as one has to postulate that particular notional person as belonging to the same group of class as the director, who operates in the same spheres and has the same knowledge or means to knowledge.[viii] 

 

  • In Ozinsky NO vs Lloyd (1995) the court stated that the reckless conducting of business in the accepted sense meant extreme lack of interest or extreme negligence. It follows that a decision cannot be subsequently characterized as reckless if it turns out to be wrong on condition there is an explanation which indicates that the person was confronted by choice and that thought and reflection went into the decision ultimately taken.

 

  • In the matter of Ex Parte de Villiers NNO: In re Carbon Developments (Pty) Ltd (in. Liquidation) (1993) the court stated that the mere carrying on business by directors and the occurring of it does not constitute an implied representation to those with whom they do business that the company’s assets actually exceeded its liabilities, but that all that is being represented is that the company will be able when the debts become due.

 

  • It therefore follows that the incurral of further debts when the company’s liability exceeds its assets, does not necessarily mean that there has been a fraudulent or reckless trading.  In the Ozinsky matter the court stated with approval that the directors had no general duty to disclose that the de facto insolvency of the company before excepting further credit and that trading in such circumstances did not automatically amount to a contravention of Section 429.[ix]

 

  • The courts have also held that if a director has reason to believe such as a reasonable business man that the occurral of a debt would run a high risk of non-payment and he would notwithstanduing still incur that debt, he would run short of the conduct of a reasonable business man.[x]

 

  • In the matter of Howard vs Herrigel referred to above, the Appellate Division held that when a person sought to be held liable under Section 429 is a director, he may well be such a party even in the absence of some positive steps by him in carrying on the business and in fact his lackadaisical attitude might lead to the conclusion that he in fact concurred in the conduct concerned.  A party to the carrying on of a company’s business is one who has joined with the company in a common pursuit and an auditor who is performing his statutory functions in a normal course is not carrying out the company’s business and is thus not a party thereto.[xi]

 

  • The phrase “carrying on business” is not synonymous with actively carrying on trade, and so the mere collection of assets acquired in the course of business and the distribution of their proceeds in the discharge of business liabilities can and may constitute “carrying on business”.

 

  1. Conclusion

In considering the above it is my considered view that if a member of a corporate entity is aware of the fact that the corporate entity would be unable to pay for its debts because of its insolvency, whether by reason of the disappearance of its substratum or otherwise, such a member or director has the duty to disclose that to the creditor concerned.

[i] Shipping Corporation of India Ltd v Evdomon Corporation (1994)

[ii] Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd

[iii] R v Gillet (1929)

[iv] S v De Jager

[v] Orkin Bros Ltd  v Bell (1921)

[vi] Howard v Herregil (1991)

[vii] Ex Parte Lebowa Development Corporation Limited (1989)

[viii] Philotex (Pty) Ltd v Snyman (1998)

[ix]  Ozinsky NO v Lloyd (1995)

[x]   Philotex (Pty) Ltd v Snyman (1998)

[xi]  Powertech Industries v Mayberry (1996)

 Confidentiality and Non Disclosure Agreement

 Confidentiality and Non Disclosure Agreement

Confidentiality and Non Disclosure Agreement

 Confidentiality and Non Disclosure Agreement

 

between

 

 

_________________________________________________

_________________________________________________

_________________________________________________

(“Receiving Party”)

 

And

                                                       ______________________________

 

                                                                    _________________________________________-

 

 (“Disclosing Party”)

 

  1. The Effective Date

Date of receiving the Confidential Information, or date of signature hereof, whichever is the earliest.

  1. The Undertaking

The following annexures form part of this Undertaking:

  • Annexure A –Terms and conditions of the Confidentiality Undertaking
  • any other annexures attached hereto from time to time
  1. Context of Undertaking

The Disclosing Party, in terms of an Agreement , undertook to pay certain commissions to The Receiving Party. Pursuant to such undertaking it is required that the Disclosing Party provide certain Confidential Information, as defined in Annexure A attached hereto, on a regular basis to the Receiving Party, which necessitates the signing of this separate Irrevocable Undertaking Regarding Confidentiality.

 

  1. The Parties’ addresses and other contact details

 

The Receiving Party:

Physical address:                 ________________________

                                                ________________________

________________________

 

Postal address:                     PO Box _________________

                                                ________________________

 

Telephone number(s):          ________________________           

 

E-mail address:                     ________________________           

 

The Disclosing Party:

Physical address:                 __________________________

__________________________

__________________________

__________________________

 

Postal address:                     P O Box ___________________

                                                __________________________

 

Telephone number:              ______________________

 

E-mail address:                     ______________________

 

 

Warranty

The signatories to this Undertaking warrant that they are duly authorised to sign the Undertaking:

Signature of or on behalf of the Receiving Party

Date

Place

Surname and first names of signatory

 

Capacity of signatory

 

 

Signature on behalf of the Disclosing Party

Date

Place

Surname and first names of signatory

 

Capacity of signatory

 

 

Annexure A

Terms and conditions of the Confidentiality Undertaking

  1. Introduction

Whereas:

1.1       The Disclosing Party concluded a commission agreement with the Receiving party .

 

1.2       The Receiving Party will receive commission from the Disclosing Party, in terms of which it will be required that the Disclosing Party provide certain Confidential Information on a regular basis to the Receiving Party.

 

1.3       The Receiving Party has agreed to enter into this irrevocable Undertaking for the protection of the Disclosing Party’s interests.

  1. Definitions

In this Undertaking, including any Annexures hereto, unless the context requires otherwise, the following expressions shall mean:

  • Agreement” the Commission Agreement  entered into between the Disclosing Party and the Receiving Party;

2.2     “Confidential Information”                  all information, of whatever nature:

disclosed, revealed or otherwise made available by the Disclosing Party to the Receiving Party, and which pertains to, but is not limited to intellectual property rights, commercial and technical information, trade secrets, agreements (whether in writing or not) which exist at the time of revealing the content thereof to the Receiving Party, the content of all future agreements which the Disclosing Party intends to or may enter into with any other party (including any agreement with the Receiving Party), all knowledge obtained by way of research and development, irrespective of whether the aforementioned information that is revealed is applicable to technical, business or financial aspects of the Disclosing Party; and/or

which has been or may be obtained by the Receiving Party from the Disclosing Party, whether in writing or in electronic form or pursuant to discussions between the Receiving Party and the Disclosing Party, or which can be obtained by examination, testing, visual inspection or analysis, including without limitation, scientific, business or financial data (which includes but is not limited to data on Investments), know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, sample reports, models, customer lists, price lists, studies, findings, computer software, inventions or ideas; and/or

analyses, concepts, compilations, studies and other material prepared by or in possession or control of the Disclosing Party which contain or otherwise reflect or are generated from any such information as is specified in this definition,

excluding information which is :

already in the possession or under the control of the Receiving Party otherwise than as a result of having been disclosed by the Disclosing Party to the Receiving Party,

generally available to the public by means other than as a result of a breach by the Receiving Party of any obligation contained herein, or

becomes available to the Parties on a non-confidential basis from a source which is not legally prohibited from disclosing it, or

is released from the provisions hereof in terms of a prior written consent provided by the Disclosing Party;

  • Disclosing Party” ___________________________;
  • Effective Date” the date recorded in the Undertaking as the effective date;
  • Parties” the Disclosing Party and the Receiving Party;
  • Receiving Party” the Receiving Party identified as such on the cover page of this Undertaking; and
  • Undertaking” this Irrevocable Undertaking regarding Confidentiality together with all written annexures, amendments, and / or exhibits attached to it from time to time.
  1. The Parties agree as follows:
    • For the purposes of this Undertaking:
      • All references to the Disclosing Party shall be deemed to include the legal entities forming part of and/or associated with the Disclosing Party.
      • Any Confidential Information, which is disclosed to the Receiving Party in any manner, whether orally, visually, or in tangible form and whether directly or indirectly, and all copies thereof, shall remain confidential and may not be disclosed in any way to any person by the Receiving Party whether before or after the Effective Date.
    • The Receiving Party undertakes that it:
      • shall hold, use and maintain the Confidential Information in the strictest confidence and in trust for the sole and exclusive benefit of performing the above mentioned activities;
      • shall not, without the prior written approval of the Disclosing Party, exploit, use for its own benefit, adapt, publish or otherwise disseminate to others, or permit the use by others for its benefit to the detriment of the Disclosing Party, any Confidential Information;
      • shall carefully restrict access to the Confidential Information to those of its employees who need such access for the purposes of performing its obligations under the Agreement or this Undertaking, and only to those employees who have been informed of and understand the contents of this Undertaking and undertake to abide by it;
      • shall advise each of the persons to whom it provides access to any of the Confidential Information that such persons are strictly prohibited from exploiting, making any use, publishing or otherwise disseminating to others, or permitting others to exploit, use for their benefit or to the detriment of the Disclosing Party, any of the Confidential Information and that such person is bound by an undertaking in substantially the same form as this Undertaking and that the Receiving Party shall together with such person be jointly and severally liable to the Disclosing Party for any breach of confidentiality by such person;
      • other than to perform its obligations under the Agreement or this Undertaking, shall not make any copies of any materials containing Confidential Information for any purpose, including, without limitation, any purpose which is adverse to the interests of the Disclosing Party, without the Disclosing Party’s prior written approval. All copies will at all times remain the exclusive property of the Disclosing Party;
      • shall will not disclose any Confidential Information to any other person or entity without the prior written consent of the Disclosing Party, save as where such disclosure is required in terms of a court order, any statutory requirements or by any regulatory authority;
      • shall inform the Disclosing Party immediately of the termination of its relationship / agreement with the Client, and as a result the termination of the obligation to send the Confidential Information to the Disclosing Party;
      • shall on termination of any relationship with the Disclosing Party for any reason whatsoever, or whenever the Disclosing Party issues such a demand in writing, immediately cease to use such Confidential Information and shall return immediately to the Disclosing Party, or at the Disclosing Party’s option destroy all tangible materials and computer records and all copies and extracts thereof that contain or disclose such Confidential Information;
      • shall, in the event that the Receiving Party is ordered to disclose any of the Disclosing Party’s Confidential Information pursuant to a judicial or government request, requirement or order, promptly notify the Disclosing Party thereof and take any and all reasonable steps to assist the Disclosing Party in contesting such a request, requirement or order, or otherwise take all reasonable steps to protect the Disclosing Party’s rights prior to forced disclosure.

 

 

  • In the event that the Receiving Party receives knowledge or at any time has any suspicion of any:
    • unauthorised disclosure (being disclosure other than permitted in terms of this Agreement);
    • misuse;
    • misappropriation;
    • loss;
    • security infringement involving the loss, breach or compromise; or
    • compromise in any way,

of the Confidential Information (regardless of the cause of disclosure and/or fault), the Receiving Party shall immediately notify the Disclosing  Party in writing thereof, including by way of email to the address detailed in clause 4 above of the Agreement to which this Annexure is attached.

 

  • If the Receiving Party is in doubt as to whether any information which has been disclosed to it, or to which it has gained access or possession, is Confidential Information, it undertakes to request in writing a ruling from the Disclosing Party, and agrees to abide by any reasonable ruling made in that regard by the Disclosing Party.
  1. Commencement and Duration

This Undertaking shall commence on the Effective Date and shall endure indefinitely notwithstanding termination of any relationship between the parties for any reason whatsoever, subject to the terms and conditions set out hereunder.

  1. Right to Relief

The Receiving Party recognizes that the unauthorised disclosure of Confidential Information may give rise to irreparable injury and acknowledges that the remedies other than injunctive relief may not be adequate. Accordingly, the Disclosing Party has the right to equitable injunctive relief to prevent the unauthorised disclosure of its Confidential Information as well as such damages or other relief as is occasioned by such unauthorised disclosure.

 

 

 

 

 

  1. Notices
    • For all purposes of or arising out of this Undertaking including, without being limited to, the serving of any process, the Parties respectively choose domicilium citandi et executandi (“Address”) at the physical address set out in this Undertaking, provided that a Party may change its Address at any time to another address which is not a post office box or poste restante with written notice to the other Party.
    • Any notice that is required to be given in terms of this Undertaking may be given:

6.2.1    by hand during ordinary business hours at a Party’s Address in which case it shall, unless the contrary is proven, be deemed to have been received when so given;

6.2.2    by pre-paid registered priority mail to the Party’s postal address given in this Undertaking in which case, it shall, unless the contrary is proved, be deemed to have been received 5 (five) business days after it was so posted, provided that a written notice so posted which is simultaneously sent by telefax, or where appropriate by e-mail to a Party’s chosen telefax number or e-mail address shall, unless the contrary is proven, be deemed to have been received within three ordinary business hours after it was so telefaxed or e-mailed.

  • Any written notice sent or transmitted in any other way and of which the addressee acknowledges receipt in any way whatsoever, shall nonetheless be a valid notice in terms of this Undertaking.
  1. Governing Law

This Undertaking shall be governed by and construed in accordance with the laws of ____________________.

  1. General
    • No alteration, cancellation or variation of, or addition to this Undertaking shall be of any force or effect unless reduced to writing and signed by the Parties or their fully authorised representatives.
    • Neither Party shall be bound by any undertakings or representations or warranties not recorded herein or in a subsequent written document signed by both Parties.
    • No indulgence or leniency or extension of time which either Party (“the grantor”) may grant or show the other (“the grantee”) shall in any way constitute a waiver of any of the rights of the grantor who shall not thereby be precluded from exercising any right against the grantee which may have arisen in the past or which might arise in the future.
    • This Undertaking shall be binding upon the Parties hereto, their successors hereto, their successors-in-title, administrators, executors and heirs.
    • The Receiving Party shall not be entitled to cede or assign any of its rights or obligations under this Undertaking without the prior written consent of the Disclosing Party.