Oral Flashcards
(96 cards)
1
Q
What is PAJA
A
Promotion of Administrative Justice Act
2
Q
What is PAIA
A
Promotion of Access to Information Act
3
Q
What us POPI
A
Protection Of Personal Information Act
4
Q
Purpose of PAJA
A
PAJA ensures administrative action is lawful, reasonable, and fair
5
Q
Purpose of PAIA
A
PAIA focuses on granting individuals access to information held by public and private bodies
6
Q
What is Lengatio Conductio
- rei
-operis
-operarum
A
Rei = letting and hiring of a thing
Operis = independent contractor
Operarum= letting and hiring of personal services
7
Q
Requirements to become an attorney
A
- 21 years
- LLB
- Board exams
- PVT training min of 150 h
8
Q
What contracts must be in writing
A
-Alienation of land
-Consumer agreements
-Deed of Suretyship
-Long lease of land
-Credit transaction under NCA
-ANC
-Lay-By agreement
9
Q
Must the commissioner of Oath know what documents are contained in Aff?
A
Yes -
he must know the contents of the aff because he needs to know if the deponent understand the content before signing the aff
10
Q
what type of agreement is in a contingency fee?
A
- No win no fee
- double normal fee or 25% of award
11
Q
what sources can be used in law?
A
LPA
Public interest
court judgements
common law
foreign law
councils ruling
12
Q
what does it mean to be “fit and proper”
A
to have honesty, integrity and reliability
13
Q
what duties does an att have?
A
-obey client’s instructions
-to be absolutely honest
-uphold administration of justice
-duty to confidentiality
-honesty and respect towards colleagues
-not act out of scope of mandate/instructions
14
Q
what is conflict of interest
A
-2 or more competing interests
-affects judgement/loyalty
15
Q
what to consider when taking a mandate?
A
-is there conflict of interest
-illegality / fraud
-own competence
-cant agree on fees
-not sufficient time to handle the matter
16
Q
when not to accept a mandate
A
- when there is an existing mandate
- a contingency fee agreement where there are no grounds to terminate
17
Q
what is an attorneys lien
A
cannot release certain documents which you drafted on behalf of your client until your fees are paid
18
Q
crux of Contingency fee agreement
A
- based on outcome of the matter
- must be in writing
- no win no fee
- increased fee - which ever is less
4.1 double normal fee
4.2 25% of award
19
Q
on what is billing depended on?
A
- complexity of matter
- skill, knowledge, labour of attorney and expertise
-time spend on matter
-amount involved
-importance of matter
20
Q
with who can an att share fees?
A
- other attorneys
21
Q
what is overreaching
A
-taking advantage of another’s ignorance
-unreasonable high fees
-more than over charging
22
Q
what is misconduct
A
when an attorney breaches the Code of Conduct
23
Q
purpose of Financial Intelligence Centre
A
to identify proceeds of crime, combat money laundering, and the financing of terrorism
24
Q
What is the purpose of a Fidelity Fund Certificate
A
to reimburse client in cases of theft of trust funds
25
can you operate without a FFC?
NO - attorney can be suspended
26
what is costs de bonis proprils
costs awarded by the Court against an attorney
on the scale of attorney and client scale
27
what is without prejudice
a bona fide attempt to settle a matter
28
Agreement of Sale: Estate Agent
must be the cause of the transaction
29
what is a suspensive condition
eg. purchaser will buy the house on condition they are granted a bond by the bank
|thus suspends the agreement until the condition is met
30
what is a Resolutive condition
eg. If Mr Jones does not provide proof that she has resigned as a director of the company by 22 March 2025, the contract will be terminated
thus terminates agreement when condition is met
31
what is an option
you have the right to purchase the property should another offer arise
32
option vs right of first refusal
right of first refusal always dependent on a condition
eg if the attorney immigrates the CA may buy the robe
33
what is a cooling off period
it allows the consumers a certain amount of time in which to cancel the purchase
34
what info does a agreement of sale require
- full name of buyer and seller
-Reg No of company
-ID Numbers
-Property description
-Purchase price amount
-if a bond is required
-date of occupation
-Occupational rent
-Suspensive/ Resolutive conditions
35
clauses for lease agreement
1. parties names
2. property description
3. lease amount
4.duration of lease agreement
36
what does "huur gaat voor koop" means
the lease takes precedence over the sale of the property and the tenant has a right to remain for the full duration of that lease
37
what are the types of improvement
1. Necessary
2. Useful
3. Lavish
38
what info should be in an AOD?
1. details of debtor and creditor
2. the amount owed
3. interest has accrued
39
what is the purpose of ADR
A method of resolving issues before litigation .
its cheaper and quicker than litigation
40
how is ADR conducted
1. Negotiation
2.Conciliation
3. Mediation
4. Arbitration
41
what is the aim of Arbitration
to find consensus and to settle the dispute
42
clauses in employment contract
-employee and employer details
-employment details (place/ of work, date of employment, working hours and days of work)
-payment details
-leave details
-Notice and contract details
-Confidentiality clause
43
What does voostoets means
- as it stands
-No longer applicable in our law
44
what is variation clause
this is a variation in the contract
45
parties involved in surety
1. The debtor
2. The creditor
3. the surety
46
exceptions on any suretyship agreement
1. De Duobus vei puribus reis dependi
2. Beneficium ordinis seu excessionis
3.Beneficium divisionis
47
what is a special power of attorney
-it limits the agents ability to act
-it is for a specific function only
-it has a timeframe
48
what document should an attorney receive from a company before doing any legal work?
A company resolution
49
what factors should be consider when opening a business
- Capital
-Own business or with others
-risk assessment
-Industry regulations
-costs
50
Benefit of a partnership
1. cheap
2. profit and losses are shared
3. Easy to manage
51
Disadvantages of partnership
1. Liabilities are jointly and severally liable
2. one partner can be sued for the entire debt
3. Risk of disagreement
52
characteristic of partnership
-all partners bring something into the partnership
-partnership is to the benefit of all
-the object/aim is to make a profit
-the contract must be legitimate
53
how many members can be in a CC
10
54
what is the aim of FICA
-to identify and verify clients
-to reduce risk
-to prevent/reduce money laundering
55
what to do if a client brings R50 K cash
1. Report as suspicious for investigation to take place
56
what duties does FICA place on Attorney
-The attorney has a duty to establish / verify the identity of clients and their authority.
-attorney is to keep detailed records of client, transactions and business relationships
-attorney must report cash transactions over the prescribed amount
57
what information is not subject to attorney and client privilege
1. name of your client
2. facts your learnt with your own senses
3. Communications made for the purposes of unlawfulness/illegality
4. Documents not otherwise privileged
58
is it possible to change marital regime
YES - Section 21 (1) of MPA
-Provide sound reasons
-Notice to Creditors, Registrar of Deeds
-Public Notice- GOV GAZ, 2 Local News papers
-No Prejudice
-Consent between parties
59
Who drafts an ANC and what types of ANC's are there and where are
they registered?
Notary, With and without accrual, deeds office
60
Difference between the AIIF and the Fidelity Fund?
The Attorneys Fidelity Fund exists to protect the public against loss as a result
of theft of trust funds.
The AIIF is to provide all legal practitioners who are obliged to be in
possession of a Fidelity Fund certificate, with a primary level of professional
indemnity insurance.
61
What is the first meeting of the creditors for, on insolvency?
The main purpose of the first meeting is to provide the creditors an opportunity to prove their claims against the estate, nominate a trustee, give directions to the trustee, interrogate the insolvent and other persons and to
consider an offer of composition by the insolvent
62
What is a discretionary trust?
Trust where the trustees have the discretion when and how the funds are
given to the beneficiaries.
63
Persons who are disqualified from inheriting under a will?
* A person or his/her spouse who writes a will on behalf of the testator;
* A person or his/her spouse who signs a will on instruction of the testator; and
* A person or his/her spouse who signs the will as a witness.
* de bloedige hand erft niet
* Undue influence
64
Important powers to give your nominated executor;
* Power of assumption
* Exempt from furnishing security
65
What is - animo revocandi
intention to revoke will
66
What is - Rule nisi
provisional order with a return date
67
difference between Appeal vs Review
Conduct vs Judgment
68
Factors that determine jurisdiction?
* Geographical area
* Cause of action (divorce exception)
* Type of matter (e.g. civil, crime)
* Monetary limit
* Whether the matter is taken on appeal or review
69
Which test is used to determine locus standi?
First interest in the matter:
* Anyone acting in his or her own interest, on behalf of another person who cannot act in his own name, a member of or in the interest of a group or a class of persons, in the public interest and Association acting in the interests of its members.
Second legal capacity
* minors
* persons suffering mental disability, declared incapable of managing
* their affairs by a competent court
* prodigals.
* insolvents
* liquidated companies
70
Living trust -how it is established
Through a trust deed registered at the Master
71
Documents required to register the trust
1. original trust deed or notarial certified copy thereof.
2. Proof of payment of the applicable fee
3. Application form (J401)
4. Completed Acceptance of Trusteeship (J417) and Acceptance of
Auditor Application (J405) forms.
5. Beneficiary Declaration (J450)
6. Trustee(s) Identification – Certified copies of ID / Passport / Organization Proof
of Registration (CK1)
7. Trustee(s) Representative Identification – Certified copies of ID or Passport
(Mandatory for Organization Trustee(s))
8. Beneficiaries Identification – Certified Copies of ID or Birth Certificates /
Passport /Organization (CKI)
9. Bond of security by the trustees - form J344 (if required by the Master) or Proof
of Exemption (If applicable)
10.Final Certified Court Order (if applicable)
72
What do I get after registration a trust
Letters of authority
73
What is an accrual
A marital regime whereby the parties share in the accrued estate of one another, from
date of marriage. It is important to note that when parties are married out of community
of property with the accrual, assets acquired before marriage and specific assets listed
remain the property of that spouse – must be recorded in the ANC
74
When do we have to conclude the ANC
Before the marriage – register within 3 months
75
Difference between champerty and contingency fee agreement
Contingency fee agreement is a no win, no fee agreement
Champerty agreement is a litigation funding agreement and there is no Act that
regulates this. Fund the litigation in exchange for a share in the proceeds.
76
Understanding on cession
Cession is where a party cedes their rights and obligations to another party, usually in
exchange for money or as security
77
Difference between capital beneficiary and income beneficiary
Income Beneficiary: have rights to the income generated by the capital owned by the
trust.
Capital Beneficiary: have rights to the underlying assets, or trust capital
78
Types of interdict.
Interim / Final
Mandatory
Prohibitory
Restitutionary
Possessory – Spoliation
79
Which documents must be transfer after purchasing share
Share certificates
80
During the first consultation with a new client, what important things you should
discuss
Costs
Scope our mandate
Prospects of success
Persons who will assisting in the matter
Expectations of attorney / clients
Documents / information required
81
Pre-emption and give an example
Right of first refusal
Example – landlord / tenant relationship
82
When does mandate start
1. Signed the mandate
2. given me instructions to proceed
3.accepted my fee terms
83
discuss the Magistrates tariffs
Tariffs are party and party fees as set out in the Rules of Court
Monetary Jurisdiction
Small Claims Court R20 000
District R200 000
Regional R400 000
High Court Anything above
84
How is prescription interrupted?
1. Summons issued
2. AOD
85
Why is touting not allowed?
attorney procures or attempts to procure professional work in an improper
or unprofessional manner or by unfair or unethical means
86
Exception in terms of marriage in community of property regarding contractual
agreements
Acting in the course and scope of their business
Litigating for personal injuries
They are suing the other spouse for damages
87
Name the contracts where an electronic signature is prohibited
Antenuptial contract
Surety agreement
Will
Sale of immovable property
Long term lease
88
difference between mediation and arbitration
Mediation:
-Informal and voluntary process.
-Mediator helps parties resolve disputes.
-Can be terminated at any time by either party.
-Parties choose the mediator by mutual agreement.
Arbitration:
-More formal process.
-Third party (arbitrator) adjudicates the dispute.
-Voluntary to start, but cannot be unilaterally terminated once begun (unless settled).
-Arbitrator’s decision is final and binding.
-Decision can be enforced through the court.
-Parties agree on the arbitrator or appoint one through an arbitration foundation.
89
How many days do you need to refer the matter to CCMA is your client is dismissed.
30 days
90
Do you accompany your client to the CCMA.
Yes-
Conciliation - No
Arbitration – We must apply to the arbitrator to represent our client
91
Why do you have to send a letter of demand.
Place them in mora
Avoid unnecessary costs if we are able to settle the matter from the beginning
National Credit
Suing the State – Institution of legal proceedings against certain organs of the state
act
92
Scenarios of Edictal citation and substitution of service
Substituted Service – defendant cannot be located. We have served on his last known
address but he is no longer there.
Edictal citation – the defendant is not in the country and we ask the Court to allow us
to appoint a service processor in the other country to serve.
93
What is an allocator?
End of the Bill of Costs, calculation page for the taxing to complete
It is effectively a certificate by the Taxing Master, confirming the amount taxed and
allowed.
94
How do you send the s129 notice in terms of NCA?
Registered Post
Sheriff
95
the procedure for purchasing shares
Sale of shares agreement
Share certificates must handed to us (the old ones)
New share certificates must be issued in favour of the purchaser
96
Disciplinary hearing. What must it contain in the letter
Notice to attend a disciplinary hearing
Charges
Date and time of the hearing and place
Name of the employee
The right to state your case;
