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Search Results for: litigation

Are You David Trying to Sue Goliath? Consider Litigation Funding

Justice should be accessible to us all, but regrettably litigation, particularly in the higher courts, can be an expensive process and thus out of reach unless you have both deep pockets and nerves of steel. To the rescue comes a concept which, although relatively new in South Africa, has been successfully implemented overseas – litigation funding. The “Please Call Me” case is a recent high-profile example of how the practice is starting to gain traction locally. Note that whilst some funders concentrate on commercial litigation, others have a much wider mandate. Please note Ashersons Attorneys does not offer litigation funding ourselves. We are a firm of attorneys. The purpose of this article is to provide advice on litigation funding - not to offer litigation funding. How it works In essence,…
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Litigation

Commercial Litigation Our commercial litigation specialists are well placed to analyse commercial disputes and identify creative solutions that prevent disputes from escalating to the point where they have to be resolved by a court. We understand that defending the client's brand and using their resources efficiently is critical. Our litigators recognise that, while some of our clients consider litigation to be one of the weapons in their commercial arsenal, many regard it as an expensive and risky necessity. We therefore ensure that alternative dispute resolution mechanisms are always assessed, not only in relation to time and cost, but also in relation to each client's ultimate aim and business objectives. If formal litigation is ultimately unavoidable, our approach is to try to resolve any disputes in a cost-effective manner, aimed at…
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“Seller’s Remorse” and “Subject to Sale of the Buyer’s Property” – Can They Sink the Sale?

The upcoming festive season, with its mass migrations of happy holiday-makers to their dream destinations, has always been a busy time for both sellers and buyers. In these hard times however, an increasing number of sellers are feeling pressured to accept offers well under their expectations, so cases of “seller’s remorse” are much more likely now than they have been for many years. The question is, just how easy or difficult is it for a seller to escape a sale agreement signed in haste? Equally common no doubt are sales “subject to the sale of the buyer’s property” - for a specified amount and within a specified time period. That raises an important question – must the buyer’s transfer actually be registered in the Deeds Office within the deadline period,…
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How Courts Sort Fact from Fiction – A Tale of Jags, Deception and Damages

Sometimes you just have to sue to enforce your rights, and should sweet victory crown your efforts you will celebrate your decision to do so. But litigation isn’t for the faint-hearted, and apart from the cost, delay and stress of fighting your way through our courts, you will want to reduce your risk factors upfront as much as you can. So if your opponent’s version of events is totally at odds with yours you will want some comfort that it is your version that is likely to win the day. How will a judge decide where the truth lies? It’s an important question because even though you know you are telling the truth, the court must base its decision on the evidence put before it. In other words, whether or…
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Landlord vs Tenant: When Can You Cut Electricity or Change the Locks?

As a landlord in dispute with your tenant you may well be tempted to avoid the delay and cost of litigation by taking your own eviction or enforcement action. Bad idea. No matter how good your overall case may be (or how good you may think it is), taking the law into your own hands automatically puts you in the wrong. "Spoliation is the wrongful deprivation of another's right of possession. The aim of spoliation is to prevent self-help. It seeks to prevent people from taking the law into their own hands ... The cause for possession is irrelevant - that is why a thief is protected ... The fact that possession is wrongful or illegal is irrelevant, as that would go to the merits of the dispute" (extracts from…
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Warning: Property Email Scams Surging

Why yet another warning about cyber-scams in the property industry? It’s because the hard fact is that the criminals are winning this war. In fact we are now reportedly the “second most targeted country in the world with regard to cyber-attacks” (Law Society of South Africa). Hence, no doubt, the Legal Practitioners Indemnity Insurance Fund report of “over 110 cybercrime related claims with a total value of R70 million” in the period July 2016 to August 2018. The scammers are using more and more sophisticated techniques to lull their victims into complacency, and your best protection is your own vigilance – forewarned is definitely forearmed! And remember that property transactions will always remain a firm favourite with online fraudsters for two simple reasons – Property sales usually involve large amounts…
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Neighbours Building? Know Your Rights Re Plan Approval

Disputes with neighbours take many forms, and they can quickly escalate into costly and expensive litigation. So nipping them in the bud will always be first prize, and when it comes to fights over construction activity – whether it be a whole new building or additions/alterations – a good place to start is with municipal approval of building plans. Without such approval, construction cannot as a general rule proceed. Imagine that your neighbours apply to the municipality for approval of building plans. You object strongly – if allowed, you say, the new building/addition/alteration will seriously impact on your property’s appeal and value. It will be unsightly and objectionable. It will ruin the neighbourhood. How must the municipality’s “decision makers” assess the plans in light of your concerns? A long-running legal…
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Trustees at War: The Removal Remedy and Its Limits

What happens when a trust’s trustees fall out and go to war with each other? If a polite request to the minority trustee to resign bears no fruit, can the majority forcibly remove him or her? And if so, must they have good reason to do so? The first question of course is what the founding trust deed provides for such a situation, but a recent High Court decision lays additional ground rules for trustees that anyone involved in a trust (in any capacity) should know about. The case saw a mother facing off against three professionals (two auditors and an attorney) and the latter’s attempt to replace the mother with another trustee ran into troubled waters. The case When family infighting impacts a family trust, an early casualty is…
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Selling Your House: Disclosing Defects

When you sell anything, our law requires that you deliver it to the buyer without any defects. That’s not easily achieved with property and you should always protect yourself with a voetstoots (“as is” or “without any warranty”) clause in your sale agreement. A recent High Court decision in the case of Van Rooyen v Brown and Another (A3104/2015) [2018] ZAGPJHC 453 again confirms that when it comes to selling your house, honesty is indeed the best policy. Specifically, disclose all defects you know of to potential buyers, or risk expensive litigation and damages claims. Defects and Defences The buyers of a house, who had paid R2.3m for it (the seller having reduced her original asking price from R3.6m to get a sale), sued the seller for damages in respect of…
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Do You Need a Will?

It’s natural for one not to want to make plans for one own's mortality, but we owe it to ourselves and our loved ones to do exactly that, and to do it without delay. Why? The Yale Book of Quotations quotes “‘Tis impossible to be sure of any thing but Death and Taxes,” from Christopher Bullock's book, The Cobler of Preston (1716). Simply put, sooner or later we all die ... but no one knows exactly when. Without a Will, you forfeit your right (and duty) to ensure that your loved ones are properly catered for after your death. A professionally-drawn Will will also greatly reduce the risk of your grieving family having to deal with uncertainty as to your wishes, bitter infighting and expensive litigation. What happens if you…
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