If it is not in the contract, it is very difficult to rely on it later. The time taken at the beginning to ensure that all parties know and understand their rights and responsibilities is always well spent — and almost always cheaper than the dispute that follows when they don't.
It is a consistent pattern in legal practice: parties negotiate an arrangement, reach agreement in principle, and then resist a detailed written contract because it feels like it will slow things down, create unnecessary formality, or signal a lack of trust. So they sign a short letter, an email chain, or nothing at all — and proceed on the basis of their understanding.
That understanding is rarely identical on both sides. Timelines are remembered differently. Payment terms are interpreted differently. What happens if something goes wrong is never discussed at all. And when a dispute arises — as disputes do — each party points to what they say was agreed, and neither can prove it to the other's satisfaction.
A well-drafted contract does not signal distrust. It prevents misunderstanding. It records what was agreed — the obligations, the timelines, the price, the consequences of non-performance, and how disputes will be resolved — so that there is no room for a different recollection later.
The consistent experience in practice: clients who resisted a thorough agreement at the start invariably wish they had one when the relationship breaks down. The cost of a properly drafted contract is a fraction of the cost of the dispute it prevents.
"If it is not in the contract, it is very difficult to rely on it later."
The foundational principle behind every contract RFH Inc drafts.
A good contract is not about length — it is about completeness. These are the elements that every well-drafted agreement should address. Their absence is where disputes begin.
Who exactly is contracting? Individual, company, trust, or close corporation — correctly identified, with registration numbers where applicable. Errors here can affect enforceability.
What must each party do? Vague descriptions of services or goods are the most common source of disputes. The contract must be precise about what is required and to what standard.
By when must obligations be performed? What are the consequences of delay? "As soon as possible" is not a timeline — it is an invitation to disagree.
Amount, timing, method, and consequences of late payment. Whether interest applies and at what rate. Whether the right to withhold payment exists, and under what circumstances.
Non-compliance alone does not automatically entitle the innocent party to cancel. The contract must clearly set out the notice required, the time allowed to remedy, and the election available — cancel and claim damages, or demand specific performance and claim damages. Skipping this process can turn the innocent party into the defaulting one.
How are formal communications given — email, registered post, hand delivery? To which address? When is a notice deemed received? This clause determines whether your notice was legally effective.
Negotiation, mediation, arbitration, or court? Which court has jurisdiction? Agreed dispute resolution avoids costly fights about process before the substantive dispute is even reached.
Who owns what is created? What information must remain confidential? For how long? These questions become extremely contentious if not addressed in writing from the outset.
Can the agreement be terminated early, and how? What notice is required? What are the parties' obligations on termination — return of property, final payments, ongoing confidentiality?
One of the most common misunderstandings in contract disputes is that a party who does not perform is immediately in breach, and the innocent party can simply walk away and cancel. That is not how South African contract law works — and acting on that assumption can turn an innocent party into a defaulting one.
Non-compliance with a contractual obligation is not, by itself, sufficient to entitle the innocent party to cancel the agreement or claim damages. The law requires a deliberate process — and skipping any step in that process can undermine an otherwise valid claim, or expose the party who cancels prematurely to a claim of repudiation.
The correct approach in South African law is straightforward, but it must be followed precisely:
The innocent party must give the other party formal written notice identifying the specific obligation that has not been met and requiring it to be remedied. The notice must be delivered in the manner prescribed by the contract — the notices clause determines whether it was legally effective.
The notice must allow the defaulting party a reasonable time to remedy the breach. The contract may specify a period — commonly 7 or 14 days — in which case that period must be allowed to run. What is "reasonable" in the absence of a specified period depends on the nature of the obligation and the circumstances.
If the breach is not remedied within the notice period, the innocent party then has an election: cancel the agreement and claim damages, or uphold the agreement and demand specific performance — also with a right to damages. This election has legal consequences and cannot easily be reversed once made.
A critical practical point: if you cancel a contract without following the correct process — proper notice, the required time to remedy, and then a clear election to cancel — you may be held to have repudiated the agreement yourself. The party who was originally in breach may then have a claim against you. Getting the process right before taking any action is essential. RFH Inc advises on the correct sequence and the appropriate remedy for your specific situation before any step is taken.
RFH Inc assists with a wide range of commercial, personal, and employment contracts — both drafting from scratch and reviewing agreements presented by the other side.
Supply, services, sale of goods, distribution, agency, and franchise agreements. Tailored to the specific transaction, not adapted from an internet template.
Rights and obligations between co-owners, decision-making, deadlock resolution, buy-out provisions, and what happens when a partner wants out.
Fixed-term and permanent contracts of employment, compliant with the BCEA and LRA, with proper restraint of trade and confidentiality clauses where required.
Correctly structured to reflect the true nature of the relationship and reduce misclassification risk — an area of increasing enforcement focus under the LRA and EEA.
Residential and commercial leases, sub-leases, and renewal agreements. Proper maintenance obligations, deposit provisions, and termination clauses.
Sale and purchase of shares in private companies — purchase price, payment terms, conditions precedent, warranties, and indemnities. Properly structured to reflect what is actually being sold and at what risk.
Sale of a business as a going concern — goodwill, assets, stock, debtors, and liabilities. Allocation of the purchase price, restraints on the seller, and transfer of employees in terms of section 197 of the LRA.
The foundational document of a company under the Companies Act 71 of 2008. A customised MOI sets out shareholder rights, director powers, meeting procedures, and restrictions on share transfers — tailored to your company's needs rather than relying on the default standard form.
Mutual and one-way NDAs protecting confidential information, trade secrets, and business relationships — before a pitch, negotiation, or collaboration begins.
Once a dispute is resolved, the settlement must be properly recorded — including the scope of the release, what is paid, and that the matter is finally concluded.
Contractor, subcontractor, and professional services agreements in the built environment — scope of works, progress payments, variations, and defect liability.
Between individuals, shareholder loans, and director loans to companies. Formal written loan agreements prevent disputes about whether money advanced was a loan or a gift.
Standalone or embedded in employment or sale-of-business agreements. South African courts will enforce reasonable restraints — but they must be properly drafted.
Before you sign a contract presented by the other side, we review it clause by clause — identifying one-sided terms, missing protections, and provisions you should negotiate.
Arrangements between two or more parties that do not fit a standard template — drafted from scratch to record and define their specific rights, responsibilities, and expectations. These agreements are tailored entirely to the arrangement, not adapted from a precedent that was written for someone else's transaction.
Proceeding without a proper written agreement does not eliminate risk — it transfers it entirely to you, and removes the tools you need to manage it.
Where there is no written agreement, a party seeking to enforce what was agreed must prove it — often through conflicting witness evidence. Courts are left to determine what was "probably" agreed, and the outcome is uncertain. The party who most carefully documented the arrangement usually wins.
Agreements that address only the headline terms — price and delivery, for example — leave the difficult questions unanswered. What happens if delivery is late? Who bears the risk of damage in transit? What standard must the goods or services meet? These are precisely the questions that generate disputes.
Generic templates found online are drafted for a generic situation — not yours. They may not be compliant with South African law, may include unenforceable clauses, and almost certainly do not address the specific risks in your transaction. A template that protects the other party is worse than no template at all.
The consistent experience in practice: parties who invest in a properly drafted agreement rarely need to enforce it — because both sides are clear from the start on what was agreed. It is the vague, informal, or absent contract that ends up in court. The question is not whether you can afford a properly drafted agreement. It is whether you can afford the dispute that follows when you don't have one.
A contract is only useful if both parties understand it. Our process is designed to ensure that happens — before anyone signs.
We start with what you are trying to achieve — the commercial purpose, the parties involved, the timelines, and where the risks lie. A contract drafted without understanding the underlying transaction will miss the issues that matter most.
We draft from scratch or review an agreement presented by the other side — clause by clause. Where we are reviewing, we identify every provision that is one-sided, missing, or potentially problematic, and advise on what should be negotiated.
Every significant clause is explained in plain language before signature. No jargon, no surprises. You should understand precisely what you are agreeing to — your obligations, your rights, and what happens if things do not go to plan.
Where the contract is still being negotiated between parties, RFH Inc can represent your interests in that process — drafting counter-proposals, advising on acceptable concessions, and ensuring that the negotiated position is correctly reflected in the final agreement. The time to negotiate is before you sign, not after.
A verbal agreement can be legally binding if all the elements of a valid contract are present — offer, acceptance, and something of value exchanged (consideration). But "binding" and "provable" are different things. If there is a dispute, each party must prove what was agreed. Without written evidence, you are relying on your memory against the other party's memory — and courts are left to determine what was probably agreed based on conflicting testimony. The outcome is unpredictable. Written contracts exist precisely to prevent this situation. For anything of significance, always get it in writing.
No — not without at least having it reviewed. Standard contracts are drafted by the other side's attorneys to protect the other side's interests. They may include clauses that limit your rights, impose obligations you are not aware of, exclude liability in ways that leave you exposed, or require you to consent to things you would not knowingly agree to. The fact that a contract is presented as "standard" does not mean it is fair or balanced. Before signing anything of significance, have it reviewed by your own attorney. In most cases, there is room to negotiate, and knowing what you are signing is always worthwhile.
The first step is to check what the contract says — specifically the breach and remedies clause, and the notices clause. Most contracts require you to give written notice of the breach and allow a period for remedy before you can cancel or claim damages. If you skip this step, you may prejudice your own position. Once proper notice has been given and the breach not remedied, you typically have the options of cancellation and damages, an order for specific performance, or both. We advise on the correct process and the most appropriate remedy for your specific situation — acting too quickly or incorrectly can undermine an otherwise valid claim.
In a share sale, the buyer acquires the shares of the company — taking on everything within it, including its liabilities, contracts, and obligations. The company itself continues unchanged; only its ownership changes. In a business sale, the buyer acquires specific assets and the goodwill of the business, but not the company entity itself. Liabilities generally remain with the seller unless expressly assumed. The distinction has significant legal, tax, and practical implications. Buyers typically prefer asset sales to limit exposure to unknown liabilities; sellers may prefer share sales for tax reasons. The structure of the transaction must be agreed early, and the agreement drafted to match that structure precisely. Where employees are transferred as part of a going concern business sale, section 197 of the LRA applies and must be properly managed.
Drafting means preparing the contract from scratch — we start with your instructions, the nature of the transaction, and the parties' requirements, and produce a tailored document. Reviewing means examining an existing contract — typically one presented by the other party — and identifying its risks, one-sided provisions, missing terms, and anything that should be negotiated before signature. Drafting is generally preferable where you have the choice, because you set the starting point and the agreement reflects your interests. Review is equally important when you are not in a position to draft — the review ensures you know exactly what you are signing up to.
Yes — South African courts will enforce a properly drafted restraint of trade where it is reasonable. The courts apply a test of reasonableness: whether the restraint is in the interest of the parties, protects a legitimate business interest (such as confidential information, trade connections, or trade secrets), and is not contrary to public policy. An overly wide restraint — one that covers an unreasonably large geographic area, too long a period, or too broad a range of activities — may be found unreasonable and unenforceable. Courts do have the power to "read down" a restraint to enforce it in a more limited form. Good drafting from the outset gives the best prospects of enforcement.