Articles and Insights

SHANDU PERSPECTIVES

To us knowledge production is about testing new concepts, challenging obsolete solutions, stimulating growth of ideas and seeking to find progressive business law solutions that promote economic growth and prosperity.

Therefore, we constantly publish our perspectives by producing insightful and actionable content that is useful and relevant to our client’s businesses.

 

Read our firm's latest articles and insights

Business Dispute Resolutions / October 1

Director Dissent or Delinquent Defiance? Setting (good faith) standards – Lessons from the UK Supreme Court

What happens when a director genuinely disagrees with other directors regarding the best route to achieve the success of a company? Is that director entitled to defy the collective decision of the board and pursue his or her preferred option, even to the extent of concealing this decision from fellow directors? Or does the fiduciary duty of loyalty and the requirement to perform director duties in good faith compel him or her to be transparent with fellow directors and persuade them to his or her desired option? On 14 July 2026, and in Saxon Woods Investments Ltd & Others v Costa [2026] UKSC 21 (“Saxon Wood Judgment“), The Supreme Court of the United Kingdom (“Supreme Court“), the apex appeal court in the United Kingdom (“UK“), issued a decision providing useful guidance regarding the abovementioned corporate governance questions.

The South African company law has been influenced by the UK company laws; therefore, the Saxon Wood Judgment is useful for South African companies and directors.

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Business Transactions / September 1

Resolution of trustees: Clarity on the authority vs capacity conundrum

Trust deeds ordinarily contain a clause that prescribe that a trust shall always have a certain minimum number of trustees in office. Whilst is it accepted that an agreement concluded by a trust whilst the number of trustees are below the prescribed minimum is null and void, there seem to be confusion whether action by trustees on behalf of a trust whilst the number of trustees are below the prescribed minimum may be ratified after additional trustees have been appointed.

On 6 March 2026, and in Zurnamer NO and Others v JA Clift (Pty) Ltd and Others (25519/2024) [2026] ZAWCHC 106 (“JA Clift Judgment“), the High Court of South Africa, Western Cape Division (“High Court“) clarified the abovementioned confusion in the context of locus standi (legal standing) of a trust to institute legal proceedings whilst the trustees in office are below the prescribed minimum number.

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Business Agreements / August 3

Breaking the in duplum rule ceiling: A boon to lenders or borrowers?

In terms of the so-called in duplum rule, arrear interest on a loan ceases to accumulate once the accrued and unpaid interest equals the amount of the outstanding capital debt. Put differently, a lender may only levy interest on a loan up to the capital loan amount and no further interest may, while it remains unpaid, accumulate in excess of that ceiling. The in duplum rule is a public interest rule that protects borrowers from exploitation by lenders. Its contours continue to evolve. On 21 April 2026, and in Valoworx 33 CC and Others v Merchant Commercial Finance 1 (Pty) Ltd t/a Merchant Factors (A142/2025; 16399/2023) [2026] ZAWCHC 182 (21 April 2026), the Full Bench (three Judges) of the High Court of South Africa, Western Cape Division (“High Court“) had to answer the following question:

“[W]hether the in duplum rule’s application is circumvented when the parties, after interest has accumulated, conclude a written settlement agreement that amalgamates the outstanding capital and interest into a new single consolidated amount, expressed and admitted as a new capital amount.” (at paragraph [45])

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Business Dispute Resolutions / June 26

Company deregistration does not absolve directors from personal liability.

In terms of section 83 of the Companies Act, No. 71 of 2008 (“Companies Act“), the deregistration of a company does not affect the liability of a director in respect of any act or omission before the deregistration of a company and such liability continues and may be enforced as if the company had not been deregistered. On 24 March 2026, the High Court of South Africa, Western Cape Division, Cape Town (“High Court“), in Lupacchini NO v That Collective (Pty) Ltd and Others (11348/2019) [2026] ZAWCHC 137, decided that, notwithstanding the company deregistration, the directors (including a de facto director) of a deregistered company were in contempt of a court order issued against the deregistered company during the directors’ tenure.

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Industry News / May 29

Arbitrator decision-making, delegation or abdication: Court annuls arbitration award written [or is it hallucinated?] by AI

The perils of the misuse of artificial intelligence (“AI“) in the legal services industry have mainly affected implicated legal practitioners around the world. These AI hazards are now snowballing to entangle Judges and arbitrators. On 22 April 2026 –and in what is likely to be the first of its kind– in Association des ressources intermédiaires d’hébergement du Québec (ARIHQ) c. Santé Québec 2026 QCCS 1360 (“ARIHQ Judgement“), the Canadian Quebec Superior Court annulled an arbitration award because the arbitrator delegated his decision-making powers to an AI tool.

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Business Dispute Resolutions / May 13

Business trusts and family feuds: The objectives of a trust founder are sacrosanct

On 06 March 2026, the Supreme Court of Appeal of South Africa (“SCA“) reaffirmed the principle that the objectives of a trust may only be found in the trust deed and cannot be varied by the wishes of the founder expressed informally in family meetings and dinner tables prior to their death. The judgment which is the subject of this note is Lenette Janse De Wit & Others v Toerien De Wit N.O. & Others (607/2024) [2026] ZASCA 23.

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Commercial Property / January 17

Can a landlord insist on full rent

Can a landlord insist on full rent during the Hard Lockdown Period ? An indicative “half-answer” from the Gauteng High Court

On 25 August 2021, the High Court of South Africa, Gauteng Division, Johannesburg (“High Court“) retraced the development of the legal principle of supervening impossibility of performance from cases decided during the contractual uncertainties of the wars of the early 20th century (between 1903 and 1919). This time, the High Court was faced with the Covid-19 pandemic related conundrum. It decided that a clause in the lease agreement providing that the tenant shall not be entitled to rent deferral or remission as a result of any cause whatsoever may require a restrictive interpretation resulting in the tenant being entitled to rent remission during the hard lockdown.

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Industry News / April 9

COVID-19 – Providing essential services without a Lockdown Permit – The law starts to bite

On 31 March 2020, the High Court of South Africa, Mpumalanga Division, Middelburg (“Mpumalanga High Court“) meted out a severe reprimand to several legal practitioners who travelled from Gauteng Province to the Mpumalanga High Court in Mpumalanga Province during the lockdown period without the necessary lockdown permits. Acting Judge Brauckmann considered the lockdown regulations and the lockdown directives and decided that by travelling between these Provinces without the lockdown permits, the legal practitioners acted recklessly, possibly committed a criminal offence, were contemptuous of the Court, were possibly guilty of unprofessional conduct, set a bad example for the South African citizens and should not charge their clients for preparation, travelling and appearing at the Mpumalanga High Court on 31 March 2020.

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Industry News / March 23

Covid-19 – Business continuity solutions in the age of uncertainty

The coronavirus (COVID-19) is wreaking havoc around the world. It is now recognised as a global pandemic. Businesses in South Africa and across the world are forced to learn about this novel virus and adapt quickly. The health and wellbeing of employees is paramount and so is business continuity.

Uncertainties faced by businesses of all sizes include obligations of employees to their employers following restrictions on movements; the responsibilities of employers for the health and wellbeing of their employees and the inability of companies to meet contractual obligations due to circumstances beyond their control.

Our business is not immune from these challenges. We are learning and adapting quickly so that we remain available to assist you to navigate this period of business uncertainty.

We have been hard at work providing advice and guidance on novel questions arising from the spread of the coronavirus pandemic in South Africa. We also continue to provide normal business law solutions to you because the wheels of business in South Africa are as resilient as its people and will never be grinded to a halt.

Our robust information technology systems and document management solutions enable us to work remotely with the same efficiency and responsiveness that you have become accustomed to without compromising information security and confidentiality. Whilst our offices remain open, albeit with some restrictions, we conduct and hold necessary meetings virtually to promote your safety and ours.

We trust that you will stay safe and well during this difficult time and practice social distancing to the extent necessary. Our health depends on yours and yours on ours.

“Bad things happen and good things too…So taste your grief to the fullest.
It is life too…But it will pass and time will put a strange honey in the bitterness.
That’s the way life goes.”
– Ben Okri.

Industry News / November 27

Business continuity risk – death of a company’s sole shareholder and sole director

In terms of section 7 of the Companies Act, No. 71 of 2008, as amended (“Companies Act“), one of the purposes of the Companies Act is to promote the South African economy by encouraging entrepreneurship. There are many thriving companies in South Africa started by ingenious entrepreneurs. These entrepreneurs are, by default or design, mostly sole shareholders and sole directors of these companies. Decision making in respect of these companies is centralised in one person who is a sole shareholder and a sole director. If not managed properly, the death of that person may cause serious business continuity risk to companies and negatively affect the estate of the deceased and the funders and suppliers of the company.

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