“One ring to rule them all.” (JRR Tolkien in The Lord of the Rings)

When it comes to making sure that you get to choose who inherits what from your estate, there really is only “one will to rule them all,” because our law recognises only one type of testamentary will: your “personal will” or “Last Will and Testament”.

But what about all the advice to put in place a whole range of other “wills” as well? Do we really need to have an “offshore will”, a “digital will”, a “business will”, an “ethical will” or a “living will”?

While calling them all “wills” is confusing (and a real problem if it misleads anyone into neglecting their foundational will as recognised by our Wills Act), these other types of “will” are all useful concepts.

We’ll have a look at them all in turn, but let’s start with the one and only…

One will to rule them all

Often referred to as your “personal will” or “Last Will and Testament”, this is quite possibly the most important document you will ever sign. Whether it’s your individual will or a will made jointly with your spouse or partner, it’s the only way to ensure that your last wishes are honoured, that your assets are distributed to your chosen heirs in accordance with your directions, and that the executor of your deceased estate is someone you can trust to act with professionalism, integrity and as much speed as possible.

Because your personal will lies at the heart of your estate planning, having a professional draw it for you is a real no-brainer. Not only must it be clear, consistent, and concise enough to avoid any possibility of doubt or dispute among your heirs, but it must comply with all the formalities required by our Wills Act.

It must be a physical document, in writing (written, typed or printed) and signed by you in the presence of two competent witnesses. While that requirement will presumably fall away as our laws evolve to allow us to draw electronic wills, video wills and the like, for now a physical, ink-signed document remains essential. If you leave only a non-compliant will, your heirs will have to ask a court to have it accepted as valid – a recipe for uncertainty, delay, cost, and dispute at the worst possible time for your loved ones.

Where do the “joint will”, “mutual will” and “mirror will” concepts fit in? Often useful for couples wanting to combine or link their personal wills with reciprocal provisions, choosing between these rests on a complex mix of personal circumstances and legal, estate and tax planning angles. Please do ask us for advice specific to your circumstances.

Do you also need an offshore will?

If you have offshore assets, you may be advised to make one or more foreign wills in addition to your South African one. You need specialist advice here, to ensure not just the validity of both your South African and your foreign will(s), but also their compatibility with each other, and their overall tax and estate planning efficiency.

What about a “digital will”?

A modern concept that’s been gaining traction lately is the “digital will” idea. It’s essential to understand that this is in no way, shape or form a substitute for your personal will. Nor is it in any sense an invitation to make an electronic or online personal will.

Your “digital will” is not the place to leave digital assets to anyone: you must still do that in your personal will. But it is the place to list all those digital assets, plus all your other online profiles, and to tell your executor how to access them. It’s also your chance to tell everyone what you want them to do with your social media accounts.

Four suggestions:

1. To avoid confusion with your real (i.e., personal) will, don’t call it a “will”. Call it your digital wishes, or digital folder, or something similar.
2. Separate it from your personal will by incorporating it into a separate document. If you don’t yet have a “Notes” folder with all the information and documents your executor and heirs will need when winding up your estate, now’s a good time to start one.
3. Make sure your list is comprehensive, or your heirs may never find out about all those crypto assets you’ve painstakingly accumulated for them.
4. Don’t ever record passwords, PINs and other security credentials in an unsecured document. Consider using a reputable password manager with an emergency-access facility.

Do you need a business will?

If you have a business, think about what you want to happen to it if you get run over by the proverbial bus tomorrow. Legally you must bequeath your business as an asset (as a sole proprietorship perhaps, or as shares in a company) in your personal will. Your business will is where you say what you want your heirs, and perhaps also business partners and managers, to actually do with it.

Without guidance, your loved ones could have no idea how they should handle things practically. If confusion and dispute set in when you die, they could tear your whole legacy apart.

Again, share your guidance in a “Notes” document supplementary to your personal will, and rather don’t call it a “business will”. What you actually need is a succession plan, so call it that, and structure it carefully.

The “ethical will” concept

More commonly encountered overseas, the “ethical will” has no legal effect and does not relate to your assets but rather to the personal legacy you want to pass on to future generations.

You might leave a “legacy letter” sharing with all your descendants your personal values, beliefs and life lessons, recording your family’s history and heritage, and leaving personal messages for individual family members. It’s a great way of supporting your heirs in living their lives to the fullest while preserving and enjoying the material wealth they inherit from you.

Your “living will” or “advance medical directive”

Your “living will” or “advance medical directive” has nothing to do with leaving assets to heirs, or appointing executors or guardians or the trustees of family trusts.

It’s your expression of your wishes, and your directions to your family and to your medical carers, as to what you do and don’t consent to when you are no longer able to communicate for yourself.

While the concept’s legal status is still unclear, it has a large measure of professional support and will help, guide, and comfort your loved ones when they need it most, so don’t leave this until it’s too late!

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

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“It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” (Oliver Wendell Holmes Jr)

A couple may marry in one country, live in several others, hold different nationalities and eventually settle in South Africa. If the marriage ends, which country’s law governs their financial and property rights?

Under South Africa’s old rules, the answer depended on the husband’s domicile at the time of the marriage.

Why the old rule was unconstitutional

The common-law rule of lex domicilii matrimonii provided that the financial and property consequences of a marriage were governed by the law of the husband’s domicile when the marriage was concluded.

That remained the position even after the Domicile Act of 1992 abolished the rule that a wife’s domicile automatically followed her husband’s and allowed married women to establish their own domicile.

The Western Cape High Court has now found there was no rational basis for continuing to prefer the husband’s domicile over the wife’s. The rule also failed when applied to same-sex marriages because it could not determine which spouse’s domicile should govern.

The Court held that the rule unfairly discriminated on the grounds of sex, gender and sexual orientation and was inconsistent with the constitutional right to equality.

The Court also ordered the two Ministers involved in the case to pay the applicant’s legal costs, criticising the State for allowing the unconstitutional rule to remain in place for three decades despite earlier recognition of its discriminatory effect.

What replaces the old rule?

Rather than simply declaring the rule invalid, the Court developed the common law and set out a new order for determining which country’s law applies.

Spouses may first agree, before or at the time of marriage, which country’s law will govern the financial and property consequences of their marriage. There must, however, be a substantial link or connection between the chosen legal system and one or both spouses.

If there is no agreement, or if there is no substantial link or connection with the chosen legal system, the law is determined in the following order:

1. The spouses’ common domicile at the time of marriage
2. Their common habitual residence at the time of marriage
3. Their common nationality at the time of marriage
4. If none of these applies, the country to which they were jointly and most closely connected at the time of marriage.

Domicile therefore remains relevant. What has gone is the automatic preference for the husband’s domicile.

The change is already in effect

Because the case concerned a common-law rule rather than legislation or conduct of the President, the Western Cape High Court’s order did not need to be confirmed by the Constitutional Court. The new framework therefore took effect on 23 June 2026.

Courts elsewhere in the country are not bound by the judgment but are likely to follow it.

What about existing marriages?

The new rule also applies to marriages that already existed when the judgment was handed down, subject to important safeguards.

Where spouses have chosen a law to govern the financial and property consequences of their marriage in an antenuptial contract, the new rule will not apply for two years from the date of the order, giving them an opportunity to amend the contract to align with the new framework.

That transitional period applies specifically where the antenuptial contract contains a choice of governing law, not simply because an antenuptial contract exists.

Where no governing law was chosen, the new rule applies unless this would result in substantial prejudice. Steps, decisions and transactions already taken under the old rule remain protected, while marriages dissolved by death or divorce before 23 June 2026 are unaffected.

In a cross-border marriage?

The Court described the “hidden complexities” of marriages with international elements, where spouses may not appreciate which country’s law governs their financial and property relationship until they are faced with divorce.

If you and your spouse have connections to more than one country, the applicable law may now depend on your common domicile, common habitual residence, common nationality or other shared connections at the time of the marriage.

Married abroad, or married with connections to more than one country? We’d be happy to look over your ANC or help you draft one.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

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“An ounce of prevention is worth a pound of cure.” (Benjamin Franklin)

On New Year’s Day in 2012, the rider was travelling along Airport Road (MR347), between George Airport and Blanco, when his motorcycle struck a pothole approximately 600mm wide.

He lost control, collided with a signpost and suffered severe injuries that ultimately required the amputation of his leg. The pothole had existed for several weeks and was difficult to see because its colouring blended with the surrounding road surface.

No automatic liability

The fact that an accident was caused by a pothole does not, by itself, make a public authority liable.

A claimant must establish the ordinary requirements for a damages claim, including wrongful conduct, negligence, causation and harm. Where the alleged wrongdoing is a failure to act, the Court also has to ask whether the authority was under a legal duty to repair the defect or warn road users about it.

In this case, the Department accepted that it had a duty to maintain the road in a reasonably safe condition. The Court found that this was an obvious case in which the circumstances imposed a duty to repair the pothole or provide an adequate warning.

They knew, or should have known

The size and age of the pothole were crucial. The Court accepted evidence that the roads authority had been alerted to the pothole before the accident. But even without a complaint, the defect was sufficiently large and had existed for long enough that a reasonable roads authority should have discovered it during its inspections.

The authority’s own records showed that formal inspections had taken place without the pothole being recorded, while its witnesses accepted that a defect of this size would probably have prompted complaints from road users.

That amounted to constructive notice: in other words, the authority should have known about the danger even without proof that the pothole had actually been reported.

The road itself was also nearing the end of its design life and was known to be prone to potholes. Yet there were no warning signs, the inspection system had been poorly executed and maintenance records were incomplete. The Court found that the failure to repair the pothole or warn motorists was both wrongful and negligent.

But should the rider have seen it?

The Department argued that the rider had a long, unobstructed view of the road and should have been able to see and avoid the pothole.

The Court disagreed.

Evidence showed that the pothole was difficult to distinguish from the road surface. The Court found that the rider had maintained an appropriate lookout and could not reasonably have been expected to see the defect before striking it. The pothole was described as a “hidden trap” that created a sudden emergency.

The Court was also satisfied that the pothole caused the crash, rejecting a reconstruction exercise relied on by the Department because it did not sufficiently replicate the actual accident.

Liability now, damages later

The Court decided that the Department was responsible for the accident, with the amount of compensation to be determined separately.

The Department was also ordered to pay legal costs on the higher attorney and client scale, including counsel and expert witness costs. The Court imposed this more severe costs order because of the way the defence had conducted the litigation, describing it as “ambush litigation” that delayed proceedings, increased costs and pursued issues that were later conceded.

The lesson is not that every pothole creates a claim against the State. Liability depends on the circumstances, including how dangerous the defect was, how long it had existed, whether the responsible authority knew or should have known about it, what inspection and maintenance measures were in place, whether warnings were given and whether the pothole actually caused the loss.

Injured because of a dangerous road defect? Speak to us about whether you may have a claim.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

© LawDotNews

“Good fences make good neighbours.” (Robert Frost)

The neighbours, in the affluent suburb of Bakoven, had been locked in an acrimonious dispute for almost two decades when CCTV cameras became the latest point of contention.

The cameras installed at one property had a clear line of sight into parts of the neighbouring property, including a courtyard, part of a swimming pool and entertainment area and, according to the neighbour, the interior of a bedroom. The cameras also had 24-hour surveillance and recording capability.

Security has limits

The camera owners argued that the system had been installed for legitimate security reasons, including concerns about crime and protecting their property.

The Court recognised the importance of security. The question was whether monitoring the neighbouring property was a reasonable and justifiable way of achieving that objective.

On the evidence, however, the Court was not persuaded that security was the primary concern. It concluded that the security concerns were secondary to a grievance about structures on the neighbouring property.

The evidence also showed that significant portions of the cameras’ viewing angles were directed at the neighbouring property, including areas the Court regarded as intimate and private.

Privacy does not stop at the boundary wall

Section 14 of the Constitution protects the right to privacy. As interpreted by the Constitutional Court, that protection includes a sphere of intimacy and autonomy that should be protected from intrusion.

The Court found that areas such as a private swimming pool, entertainment area and courtyard are places where people can reasonably expect to conduct their personal and family lives without being subjected to systematic surveillance.

The fact that part of a neighbouring property may be visible from elsewhere does not mean it can be placed under permanent camera monitoring. Privacy is not limited to areas of complete physical seclusion.

Could the intrusion have been avoided?

The camera installer did not deny that alternative locations were available that could protect the owners’ property without intruding on their neighbour’s privacy.

The Court also pointed to less restrictive security measures, including electric fencing, burglar bars and a security system with motion detector beams. The camera owners therefore failed to show that the limitation of their neighbour’s privacy was justified.

The Court also upheld the finding that the persistent surveillance amounted to an actionable nuisance. Continuous monitoring was materially different from a neighbour occasionally looking over a boundary wall: the neighbour, his family and guests were subjected to permanent and invasive scrutiny.

The cameras had to move

The appeal was dismissed, leaving in place an order requiring the cameras to be removed and repositioned so that they had no line of sight into the neighbouring property.

Importantly, the order went further. The camera owners were also prohibited from installing future cameras or recording devices with a direct line of sight into the neighbour’s private property.

The Court also ordered the camera owners to pay legal costs on the higher attorney and client scale. The Court said this was justified by the way the litigation and appeal had been conducted, including the inclusion of extensive irrelevant material and an unsuccessful attempt to introduce further evidence. It also described the conduct of the camera owners’ legal representatives as objectionable and vexatious. The judgment does not prevent homeowners from using CCTV for security. It does make clear that security measures must be proportionate and should not unnecessarily place a neighbour’s private spaces under surveillance.

Installing CCTV, or concerned that a neighbour’s cameras are monitoring your property? Speak to us.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

© LawDotNews

“You do not mend a broken vase by handing over a new one.” (Anonymous)

When a property sale is cancelled, most people picture a straightforward reset. The seller keeps the property, the purchaser gets the money back, and everyone walks away as if the deal never happened.

The law calls this restitutio in integrum, and a recent Gauteng High Court decision shows that putting the parties back where they started can be a far more exact exercise than simply reversing the transaction.

Restitution is not a reset button

The dispute followed the cancellation of a sale involving a smallholding in Kyalami. The purchaser had taken occupation of parts of the property, including a restaurant and farm stall. Transfer had not yet taken place because the financing and other conditions attached to the sale had not been finalised.

In December 2017, while the purchaser was still in occupation, an arsonist set fire to the restaurant. Neither party had caused the fire, but the sale agreement placed the risk of damage on the purchaser. The financing arrangements and other conditions remained unresolved, and the purchaser cancelled the agreement in May 2018 without transfer ever having taken place. He was entitled to repayment of R2,15 million, less the fair and reasonable cost of repairing the fire damage. The court had already decided that the repair costs must be deducted from the purchaser’s refund, but the amount of that deduction was only determined in 2026.

The principle of restitutio in integrum requires the parties to be restored, as far as reasonably possible, to the positions they held before the agreement.

That sounds simple in theory. In practice, years may pass between occupation and cancellation, and the property itself rarely stays the same. A building can be damaged, deteriorate, or simply age. When that happens, restitution has to account for the difference between what was handed over and what is being handed back.

Old does not come back new

The court had to assess the fair and reasonable cost of remedying the fire damage to the restaurant and farm stall, taking into account the condition of the structures when the purchaser took occupation. Parts of the restaurant and farm stall were already in poor condition, and some earlier work had been badly done.

Restitution could not be used to turn an aged or poorly built structure into a new one at the purchaser’s expense. Where a proposed repair would leave the seller with something materially better than what existed before, the court reduced the amount allowed.

The purpose is to restore what was lost, not improve what was already there. The question was not what it would cost to replace the structures with new ones, but what it would fairly cost to restore what had actually been damaged.

You can’t deduct the same problem twice

The purchaser argued that, after the court had calculated the cost of each repair, the overall figure should be reduced again to reflect the property’s poor condition before the fire.

The court rejected this argument. It had already reduced the relevant repair amounts to reflect the structures’ age, poor condition, and substandard workmanship. A further general reduction for the property’s overall condition would therefore have deducted for those same problems twice.

The court fixed the fair and reasonable cost of restoration at about R1.36 million. After this was deducted from the R2.15 million repayable to the purchaser, the seller still owed him about R799k.

Record the condition, or argue about it later

The judgment also shows why you should record a property’s condition when occupation changes hands.

Where there is no clear record of what a property looked like at handover, parties may be left arguing years later about whether a structure was sound, dilapidated, damaged, or badly built before the purchaser arrived.

Photographs, walk-through videos, inspection reports, inventories, and records of existing defects can matter far more than memory if a sale later collapses and restoration becomes disputed.

In this matter, the condition of the restaurant and farm stall when the purchaser took occupation formed part of the court’s assessment of what fair restoration required.

Why the date of cancellation matters

The passage of time did not postpone the financial consequences until the date of judgment.

The sale agreement was cancelled on 31 May 2018. The parties had agreed that interest on any amount ultimately found owing would run from that date, and the court had already made an order to that effect.

By the time the restoration dispute was finally decided in 2026, more than R613k in interest had accrued on the outstanding amount.

Bottom line

Buying or selling property and handing over occupation before the deal is complete? Speak to your attorney about recording the property’s condition and making sure the agreement clearly deals with risk.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

© LawDotNews

“The palest ink is better than the best memory.” (Chinese proverb)

A founder dies and the family disagrees about what should happen to the assets. Then some beneficiaries produce emails proving they know what he wanted to happen. Surely the court can step in and wind up the trust?

Not so fast. A recent Supreme Court of Appeal decision shows that a founder’s later wishes do not, without a formal amendment, override the terms of the trust deed.

In black and white

The trust at the centre of the dispute had been created decades earlier as a discretionary trust, holding business interests and assets worth more than R100 million. The trust deed gave the trustees wide discretion, including the sole power to decide when, if ever, to fix a “vesting date” and distribute the trust’s capital.

In his final years, the founder became seriously ill and had a series of conversations with his family about what should happen to the trust after his death. He wanted the capital shared equally, without selling the businesses to achieve it. Those wishes were recorded in emails and memoranda, but the trust deed itself was never formally changed to reflect them.

After he died, the family split. Some beneficiaries wanted the trustees to fix a vesting date and distribute the assets. The majority of the trustees refused, relying on the discretion the deed gave them.

Wishes are not amendments

The dispute reached the Supreme Court of Appeal under section 13 of the Trust Property Control Act. This allows a court to vary or terminate a trust provision, but only where the provision produces consequences the founder did not foresee, and only then if it also hampers the trust’s objectives, prejudices beneficiaries, or conflicts with the public interest. If the first requirement is not met, the court’s power under the section is not triggered at all.

The beneficiaries argued that the founder never intended the trustees to delay distribution indefinitely, and that his later wishes showed exactly that.

The court disagreed. The founder’s intention had to be determined from the trust deed, not from wishes expressed years later. The deed gave the trustees sole discretion to decide whether and when a vesting date should be fixed and did not tie the trust’s end to a specific date or event. Those were the terms the founder had created and remained bound by. His later wishes did not change them, and he never took formal steps to limit the trustees’ discretion or alter the deed.

No queue jumping

Because the deed gave that power to the trustees rather than the beneficiaries, none of the family members pressing for distribution had any right to insist that a vesting date be fixed. The court found nothing in the deed’s structure that the founder had not foreseen or intended.

The unhappiness in the family, the court found, came from the trust’s financial position and the beneficiaries’ conflicting demands, not from anything the trust deed itself had done wrong. One beneficiary wanted cash, another wanted specific assets, and the trust’s finances could not satisfy both. That left the trustees unable to satisfy everyone’s demands, while still acting within the discretion the deed gave them.

Read the fine print

For founders, trustees, and beneficiaries alike, the lesson is to start with the trust deed. Verbal assurances and family understandings, however genuinely meant, do not amend the deed or simply displace its terms.

A trust deed left unreviewed for decades can quietly drift away from what a founder actually intends. Reviewing the deed regularly – and amending it if necessary – will greatly reduce the chances of a dispute.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

© LawDotNews

“It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.” (attributed to Mark Twain)

A married couple moved to Australia and rented out their South African family home while they tested the waters Down Under. Years later, once they had decided to remain abroad, they sold the property and gave their tenant notice under a clause that allowed them to cancel the lease on three months’ written notice.

The tenant argued that the lease was protected by the Consumer Protection Act (CPA) and could only be cancelled if he had materially breached it.

A recent Supreme Court of Appeal decision explains why the tenant’s CPA argument failed, but also why the landlords could not require him to vacate without following the proper eviction process.

Not every landlord is in the letting business

For a residential lease to fall within the CPA’s definition of a rental, the letting must take place in the ordinary course of business.

The court found that the couple were not in the business of letting property. They had let out their own home as a temporary measure while deciding whether their move abroad was permanent, not as part of an ongoing letting business.

They were not continually marketing rental services and were therefore not suppliers as contemplated by the Act. Their tenant, in turn, did not qualify as a consumer. On this basis alone, his reliance on the Act failed.

Where the line actually falls

Whether a lease falls within the CPA depends on its factual setting. What matters is whether letting property forms part of the landlord’s ordinary, continuing business activity.

A court must look at what business the landlord actually carries on and how that business operates. The fact that rent is being paid does not settle the question on its own.

A valid cancellation does not authorise an eviction

The High Court upheld the cancellation of the lease and ordered the tenant to leave by a fixed date.

The Supreme Court of Appeal set that order aside. Requiring the tenant to leave was, in effect, an eviction order, but the process required under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) had not been followed.

Under PIE, a court must decide whether eviction is just and equitable and determine an appropriate date for the tenant to leave.

A landlord therefore cannot treat cancellation of a lease as an automatic eviction. Cancelling the lease and evicting the tenant are two separate legal steps.

Two questions, not one

For landlords and tenants alike, the lesson is to keep these questions separate. First ask whether the lease falls within the CPA by looking at the nature of the landlord’s letting activity. Then, if the lease has ended and the tenant remains in occupation, the eviction process must still be dealt with under PIE.

A cancelled lease ends the contract, but it does not remove the tenant.

Not sure whether the CPA applies to your lease or whether the correct eviction process has been followed? Speak to us before taking the next step.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

© LawDotNews

“…the threat of disciplinary action can be held as a sword of Damocles over the heads of employees …” (Supreme Court of Appeal)

The Labour Court’s recent reinstatement of a dismissed whistleblower has confirmed that our laws will robustly protect anyone who reports wrongdoing in the workplace.

“The Whistleblower’s Act” removes the Sword of Damocles

The Protected Disclosures Act (“PDA”) – commonly referred to as the “Whistleblower’s Act” – protects employees, independent contractors, consultants, agents and workers employed by labour brokers from retaliation after reporting unlawful or improper conduct.

Without that protection, as our courts have pointed out, “the threat of disciplinary action can be held as a sword of Damocles over the heads of employees to prevent them from expressing honestly held opinions to those entitled to know of those opinions. A culture of silence rather than one of openness would prevail.”

The Act is complex, and its application is full of grey areas, so specific advice is essential. But in a nutshell:

• The PDA applies to both public and private sector employers.
• Employers must have in place “internal procedures for receiving and dealing with information about improprieties”.
• Any form of reprisal against a whistleblower – not just dismissal but any type of “occupational detriment” (disciplinary action, demotion, suspension, harassment, intimidation, compulsory transfer and the like) – will expose an employer to harsh penalties.
• If the reprisal takes the form of a dismissal, it is “automatically unfair” and could result in reinstatement with retrospective back pay, compensation of up to 24 months’ remuneration if reinstatement is inappropriate, payment of actual damages and other appropriate relief. Occupational detriments other than dismissal are deemed to be an “unfair labour practice” with a similarly wide range of remedies.
• Any disclosure is protected if made in good faith and with a reasonable belief that it is substantially true, not for personal gain, and in circumstances where it is reasonable to make the disclosure. Employees should be careful here: groundless speculation is not enough, and a whistleblower acting maliciously or recklessly in disclosing false information risks criminal prosecution. Acting in good faith and reasonably is the key.
• Once the employee presents evidence to show that the protected disclosure was the reason, or just one of the reasons, for the disciplinary action, the employer must show that it disciplined the employee for a fair reason such as misconduct unrelated to the disclosure.

Dismissed for breaching policy or for talking to the SIU?

In the case in question, a Facilities Manager accused his employer (the National Student Financial Aid Scheme, a public sector organisation) of unfairly dismissing him.

He had become seriously concerned when a tender specification for new office space was approved without being signed off either by him or by his immediate line manager. That, he said, was a fundamental procedural irregularity because he was effectively the “end user” representative in procurement processes related to lease agreements.

Worse still, the employer went ahead and accepted a lease option that was both more expensive (we’re talking big money here, with rental to the tune of R2 million per month) and less practical (it needed extensive fitting-out before occupation) than another, more affordable option. A proposed five-year extension of the lease reinforced the manager’s belief that irregular and wasteful expenditure was being incurred.

He did everything he could to alert senior management to his concerns, exhausting all the internal reporting mechanisms available to him – but to no effect.

Then came a break, when the Special Investigating Unit (SIU) was called in by the President to investigate irregularities at the organisation. The manager, on the advice of his employer’s internal audit lead, told SIU investigators about the serious procurement irregularities he had identified.

To support his disclosures, and out of fear of victimisation and to preserve evidence, he emailed relevant emails and other documents to his private email address, forwarding them to the SIU.

When these disclosures were leaked into the public domain, his employer launched an investigation into the source of the leaked information. It identified the manager as the informant and dismissed him for contravening its ICT (Information and Communication Technology) policies by forwarding work emails to his personal email address.

The Court however accepted the manager’s contention that his dismissal was not genuinely about a breach of policy but was instead a pretext for retaliation. His contraventions of company policy were an integral part of the disclosure process, his disclosures were protected, and his dismissal was automatically unfair.

His employer must reinstate him with full back pay, and, to rub salt into its wounds, it must also pay all his legal costs on the punitive attorney and own client scale.

Tips for employees

Make sure that your disclosures will pass all the tests we set out above and follow the correct procedures in making them. As we said above, good faith and reasonableness are your watchwords here.

Tips for employers

Put a whistleblower policy in place and tell all your employees about it. It’s not just a legal requirement: your business can only benefit from uncovering any improper or criminal conduct going on behind your back.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

© LawDotNews

“The single biggest problem in communication is the illusion that it has taken place.” (George Bernard Shaw)

Many landlords assume that once a tenant stops paying rent, an eviction order will inevitably follow. A recent Western Cape High Court judgment shows how wrong that assumption can be. Despite rental arrears of more than R46,000 and an apparently legitimate grievance, a landlord’s eviction application failed because of a problem many people overlook: the cancellation letter.

The dispute arose after tenants allegedly fell behind on their rental payments. The landlord sought to terminate the lease and evict the occupants. Although the alleged arrears were not seriously disputed, the case ultimately turned on a different question: whether the lease had been validly terminated in the first place.

The court didn’t even consider whether the eviction itself would have been justified. Instead, the application failed because of defects in the cancellation process.

Why the cancellation failed

The letter sent to the tenants purported to cancel the lease immediately because of the rental arrears. At the same time, it gave the tenants a future date by which they had to vacate the property and demanded payment of the outstanding amounts.

The difficulty was that the letter appeared to communicate several different and potentially contradictory things at once. Had the lease already been cancelled? Were the tenants being given an opportunity to remedy the breach? Would payment of the arrears change anything? The notice did not provide clear answers.

The court confirmed an important principle of South African law: a notice terminating a lease must be clear, unconditional and unequivocal. If a notice leaves uncertainty about the parties’ rights and obligations, it may be invalid.

In this case, the court found that the cancellation notice was ambiguous. Because the lease had not been validly terminated, the landlord could not establish that the occupants were unlawfully occupying the property. Without unlawful occupation, the eviction application could not succeed.

A costly lesson for landlords

For landlords, the lesson is straightforward. Even where a tenant owes substantial rental arrears, a defective cancellation process can derail an otherwise strong case. Before launching eviction proceedings, it is essential to ensure that all notices have been properly drafted and served, and that all requirements for a valid termination have been satisfied.

For tenants, the case demonstrates that the outcome of an eviction application is not determined solely by whether rent is owing. A landlord must also show that the lease was lawfully terminated before a court will consider whether an eviction order should be granted.

The judgment is a reminder that legal disputes are not won on the facts alone. Even where a landlord has a legitimate grievance, a defective notice can bring an eviction application to a halt before a court ever considers the merits of the case.

The lesson extends beyond landlord-tenant disputes. Small drafting errors in legal notices can have significant consequences, particularly where rights and obligations depend on clear communication.

A properly drafted notice can prevent costly litigation. If you are considering cancelling a lease or pursuing an eviction, obtaining legal advice before taking formal steps may help avoid costly delays and unnecessary disputes.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

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“By failing to prepare, you are preparing to fail.” (Benjamin Franklin)

A dementia diagnosis affects far more than memory. As the condition progresses, it can impair a person’s ability to manage finances, make legal decisions, sign contracts, or deal with property and investments.

For many families, the legal implications only emerge when practical problems arise. A bank account needs accessing, a property needs selling, or financial decisions must be made for someone who can no longer act independently.

At that point, many assume a Power of Attorney will help. South African law says otherwise.

The Power of Attorney myth

A Power of Attorney allows one person to act on another’s behalf. It is commonly used when someone is travelling, unavailable, or needs assistance with specific transactions.

What many people do not realise is that a Power of Attorney is only valid while the person who granted it still has legal capacity. In simple terms, they must be able to understand the nature and consequences of their decisions.

Once a person loses that capacity through dementia, Alzheimer’s disease, a stroke, or another condition affecting cognitive function, the Power of Attorney falls away. South Africa does not currently recognise enduring powers of attorney that remain valid after a person becomes mentally incapacitated.

This can create practical difficulties. For example, if a property is sold after the owner has lost legal capacity, a Power of Attorney that was previously valid may no longer authorise the transaction. That can create legal uncertainty at a time when families are already under pressure.

Let’s look at three other options.

1. Curatorship: The traditional route

Where a person can no longer manage their own affairs, the High Court may appoint a curator bonis to take control of their financial affairs.

A curator manages assets, pays expenses, and protects the person’s financial interests. In some circumstances, a separate curator may also be appointed to deal with personal matters such as medical and care decisions.

Curatorship provides important protection, but it can be a lengthy and costly process. The application requires medical evidence, court involvement, and ongoing oversight by the Master of the High Court. For larger or more complex estates, however, it may be the most appropriate option.

2. Administration: A lesser-known alternative

In some cases, a simpler option may be available.

The Mental Health Care Act allows the Master of the High Court to appoint an administrator to manage the property and financial affairs of a person who is unable to manage their own affairs because of a mental illness or severe intellectual disability.

Unlike curatorship, this process does not require a High Court application, making it generally quicker and less expensive.

However, it is only available in specific circumstances and is generally intended for smaller estates. An administrator’s powers are limited to financial and property matters and remain subject to the supervision of the Master.

Professional advice is essential to determine whether this option is available in a particular case.

3. Special trusts: Planning before capacity is lost

Where dementia is diagnosed at an early stage and the person still has legal capacity, a special trust may be worth considering.

Unlike curatorship and administration, which are generally implemented after capacity has been lost, a special trust allows arrangements to be put in place while the individual can still participate in decisions about their future affairs.

Special trusts may also offer tax advantages in certain circumstances and can provide a structured way of managing assets for the benefit of a person who later becomes unable to manage their own financial affairs. Professional advice is essential to determine whether a special trust is appropriate and how it should be structured.

Act sooner rather than later

Dementia presents families with both emotional and practical challenges. The earlier legal planning begins, the more options are available.

A common thread running through curatorship, administration, and trust planning is timing. Once legal capacity has been lost, choices become more limited, and the available solutions often become more complex and costly.

Dementia cannot always be anticipated, but its legal consequences can. Understanding the available options before a crisis develops can help families protect both the dignity and financial wellbeing of a loved one during an already difficult time.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

© LawDotNews