“Words are loaded pistols.” (Jean-Paul Sartre)

In June 2018 a couple agreed to buy a house for R1.95 million. The sale was subject to two conditions: that they sell another property within ninety days and obtain a bond for the full purchase price.

The other property was sold, but the bank approved a bond for less than the amount required. The agreement allowed the seller to accept the lower bond and regard the condition as fulfilled. It was common cause that both conditions had been met and that the sale was unconditional.

The transfer then ran into trouble. While the documents were being prepared, the Deeds Office established that one of the buyers was an unrehabilitated insolvent. The bank withdrew the bond.

The seller did not cancel at that point. She agreed to a memorandum giving the buyers several ways to resolve the problem. They could apply for the buyer’s rehabilitation, seek a bond in the other buyer’s name, or wait until the end of May 2019, when he would have been rehabilitated. None of these options were pursued.

In April 2019 one of the buyers emailed the conveyancer. He said there was no point applying for another bond until an alleged defect had been addressed. He wanted the seller to repair it or agree to a lower price, after which the buyers would apply for the bond. If she would not consider this, they would have to look at other options.

The seller treated the email as a repudiation, accepted it, and cancelled the sale.

Asking is allowed. Insisting is the problem

Repudiation occurs when one party, without lawful grounds, shows through words or conduct that they no longer intend to perform the contract. The other party may then insist that the contract be honoured or accept the repudiation and cancel.

The buyers were entitled to ask whether the seller would repair the alleged defect or consider a lower price. She was equally entitled to refuse. Unless both sides agreed to an amendment, the signed agreement remained binding.

This email went further than a request. It made the bond application dependent on the seller repairing the defect or accepting a lower price. The buyers were not offering to proceed under the existing agreement while discussing a possible change. They were saying that they would proceed only on different terms.

The Court accepted that the buyers may still have wanted the property. That did not decide the matter because repudiation is judged objectively. The question was how a reasonable person in the seller’s position would understand the email, not what its writer privately intended.

A reasonable reader would have understood that the buyers were no longer prepared to perform under the agreement as it stood. The High Court therefore found that the seller had validly cancelled the sale.

What did the cancellation cost the buyers?

The agreement allowed the seller to keep the money already paid if the sale was cancelled in these circumstances. This is sometimes referred to as rouwkoop. The Magistrates’ Court had ordered that the money be returned, but the High Court reversed that order.

The buyers also became liable under the estate agent’s commission clause because the sale had been cancelled due to their conduct. A further financial judgment was granted against them, together with interest and legal costs.

One email had therefore cost the buyers the sale, the money already paid, and a substantial additional amount (almost R150,000.00).

How can you ask for a change safely?

Make it clear that you are proposing an amendment rather than refusing to honour the existing agreement.

Asking, “Would the seller consider reducing the price?” opens a negotiation. Saying, “We will not proceed unless the price is reduced,” may allow the seller to cancel. No particular wording guarantees safety because the communication will be read as a whole and in the context of the parties’ conduct.

Deal with the price, finance, defects, and other material terms before signing wherever possible. If a problem arises after the agreement becomes binding, obtain legal advice before sending a message that could be understood as a refusal to perform.

Buying or selling property, or stuck in a transfer that has gone wrong? Speak to us before you put anything in writing.

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

“Beware the wolf in sheep’s clothing.” (From Aesop’s Fables)

Your relative or friend dies, having at the last minute made a new will leaving everything to a new sole heir. You’re suspicious: the deceased was vulnerable, perhaps dying or suffering from dementia, and you’re convinced that they were taken advantage of by a manipulative fraudster. What can you do about it?

The bad news is that it’s never easy to have a will set aside. Our courts have repeatedly said that they will not do so lightly, and the onus will be on you to prove invalidity. But, as a recent High Court decision illustrates, it can be done.

A sad tale of two wills

This unhappy saga revolves around the two conflicting wills of a Durban man (a “bubbly, talkative social butterfly”) who died on 8 February 2022, just a day short of his 91^st birthday and living in deteriorating mental and physical health in a care home.

In his earlier will, dated 29 September 2020, he had left everything to five charities. But then on 1 February 2022, just seven days before his death, he supposedly signed a second will in which he revoked all previous wills and named as his sole heir a man who claimed to have become a “son” to him.

The charities asked the High Court to declare the second will void, and the new heir fought back with a story that he had become like a son to the deceased after supposedly saving him and his wife from a robbery in 2017. It was, he said, no surprise that the deceased had decided to leave everything to him.

The deathbed will set aside

The Court was faced with conflicting evidence from a long list of witnesses for both sides. Its final conclusion? The charities had successfully produced clear evidence that the second will was invalid on the grounds of undue influence and of fraud relating to the signature on it.

The Court identified a litany of inconsistencies, contradictions and improbabilities in the evidence supporting the new heir’s case, concluding that the entire thread of his evidence bore “the hallmarks of a carefully thought-out plan to take advantage of the vulnerable position of a frail old man who befriended someone at a local department store”.

Specifically, on the day the deceased was supposed to have voluntarily signed the second will, he was clearly at death’s door, severely distressed and frail, breathless, struggling to speak, confused and unable to feed himself. His mental capacity to sign a will was in great doubt, and a nurse had witnessed the new heir kneeling next to the deceased and trying to get him to sign papers, which the deceased refused to do, shaking his head and saying “no”. To top it all, a handwriting expert suspected elements of forgery in the second will’s signature.

No surprise then that the Court declared the deceased’s deathbed will null and void and of no force and effect, leaving the original 2020 will as his last valid will and testament.

What you must prove to have a will nullified

When you challenge the validity of a will the onus will be on you to prove your case, and courts will not lightly set aside a will.  But it can be done, and the Court provided some useful pointers on what you’ll have to prove:

• Competence to make a will must be assessed at the time of signing the will. The test is whether the testator’s “mind and memory were sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will”.
• Undue influence requires proof of “conduct which is akin to coercion or fraud … to make a bequest that [the deceased] would not otherwise have made”.
• Fraud needs to be clearly proved. As the Court put it “the threshold to meet the requisite proof to establish fraud is high”.
• Forgery requires you to prove that the signature on the will isn’t authentic. In this case, there were conflicting conclusions from two different handwriting experts, and although the Court preferred the opinion of the expert who said his examination of the signature had revealed fraud, it weighed both conclusions against the evidence as a whole to assess where the balance of probabilities lay.
• The probabilities supporting the charities’ case played a major role in the declaration of invalidity, with the Court expressing doubt that the deceased would have suddenly decided to disinherit the charities, especially as his 2020 bequest to them traced its roots back to a 2008 will made jointly with his wife. Clearly the charities had been close to the couple’s hearts for many years. What’s more, the charities’ witnesses were not heirs under the earlier will and they had nothing to gain beyond honouring the last wishes of a dying man they were clearly very fond of.

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

“Ignorance of the law excuses no man.” (John Selden)

Government is increasing inspections aimed at employers of undocumented foreign nationals. Businesses may be the most obvious targets, but an ordinary household employing a domestic worker or gardener is also an employer.

The current law prohibits an employer from employing anyone who:

• is unlawfully in South Africa
• whose status does not allow them to work
• or whose documents do not permit the particular work they are doing

Employers must make a good-faith effort to establish that the person is entitled to perform the work for which they are employed.

What should you check?

A passport is not enough. It establishes identity and nationality but does not necessarily give its holder permission to work in South Africa.

Ask for the document on which the person relies for their right to work. Check that it appears genuine, has not expired and authorises the work being performed. Keep a copy and record when it must be checked again.

Permanent residents, recognised refugees, asylum seekers and holders of exemption permits do not all have the same right to work or the same conditions attached to their status. Domestic work and gardening are also not on the critical-skills list, making the ordinary work-visa route difficult in practice.

A person may nevertheless be entitled to work through permanent residence, refugee status, asylum documentation permitting employment or an exemption permit, such as the Zimbabwe Exemption Permit. The important question is whether the particular document authorises the particular work. If in doubt, ask us.

What if the documents do not check out?

There may be no quick administrative solution. Continuing to employ someone who is not entitled to work can expose the employer to criminal liability, but dismissing the person immediately can create a separate employment dispute.

Foreign workers do not lose their employment rights merely because their immigration status is irregular. In a recent case, the High Court set aside the immediate termination of a municipal employee whose work permit had expired. The municipality could not use his immigration status to avoid giving him the notice required by employment law.

If a check reveals a problem, speak to us before continuing or ending the employment relationship. The employer’s immigration obligations and the worker’s employment rights must both be addressed.

What could the Bill change?

The Employment Services Amendment Bill would introduce additional duties when employing foreign nationals. As currently drafted, an employer may have to establish that no suitable South African citizen or permanent resident is available for the vacancy and prepare a plan for transferring skills to South African employees, unless an exemption applies.

The Minister could also set limits on the employment of foreign nationals in particular sectors, occupations or areas. Employers outside the public sector with fewer than ten employees would be excluded from these quota provisions, but not necessarily from the Bill’s other requirements.

The proposed penalties are significant. An initial contravention could attract a fine of up to R100,000, with higher maximum fines for repeated non-compliance.

These fines would not apply only to employing undocumented workers. An employer could employ someone who is legally entitled to work but still contravene the proposed law by failing to conduct the required recruitment check or prepare a skills-transfer plan.

Is the Bill already law?

No. The Bill is before Parliament and may change before it becomes law.

However, employers already have a legal duty to ensure that foreign employees are entitled to work in South Africa and to perform the particular work for which they were hired. Breaching the existing law can already result in criminal penalties. The Bill would add further duties and penalties.

Employ a foreign national at your business or home? Speak to us if you are uncertain about their documents or your obligations.

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

“Force is not a remedy.” (John Bright)

The facts

The owner had two properties in a residential estate in Midrand, one of which she leased to tenants. A dispute had arisen between her and the association over levies and other charges.

The association had already sued her in the Magistrates’ Court for the amounts it claimed were outstanding. She disputed both her liability and the amount claimed. While that case was still pending, the association disabled fingerprint and facial recognition access for her and her tenants, forcing them to use the visitors’ lane.

The owner then approached the High Court to have their biometric access restored. The levy claim remained before the Magistrates’ Court.

Can an estate use access to enforce payment?

The association pointed to its Memorandum of Incorporation, which allowed it to withhold biometric access where a member was in breach, including by failing to pay an amount due. But the alleged default was already the subject of the separate Magistrates’ Court dispute. The owner denied that she owed what the association claimed.

The High Court held that the association could not decide for itself that she was in default. Claiming a breach while the dispute remained unresolved was premature, and by cutting off access on that basis the association was itself in breach of the relationship it was purporting to enforce.

It also left the association occupying three roles at once:

1. the judge of whether a debt existed
2. the judge of what should follow
3. the party that carried out the sentence

That is the kind of self-help the law does not permit.

Is biometric access part of possessing your home?

The owner relied on the mandament van spolie, a remedy that restores the previous position without first deciding who is right in the underlying dispute.

The Court held that biometric access was linked to possession of the property. Unlike a separately supplied service such as electricity, it existed to facilitate entry to a home the residents already possessed. Removing it therefore interfered with their possession.

But they could still get home

The association argued that nobody had actually been locked out. The owner and her tenants could still enter through the visitors’ lane.

The Court rejected this argument. What had been taken away was the particular method of access the residents had previously exercised. Once biometric access was recognised as an incident of possession of the property, the fact that they could still use the visitors’ lane was irrelevant.

What about the gym and other amenities?

The Court drew a line between access to the property and access to recreational facilities.

Access to the gym, tennis courts, squash courts, and clubhouse was separate from access to the owner’s property, so it could not be restored using the same remedy. The Court nevertheless indicated that removing access to those amenities while the court process was pending and without a court order was prima facie unlawful. It was simply the wrong remedy for that part of the complaint.

The association was ordered to immediately restore fingerprint and facial recognition access for the owner and her tenants, and to pay the costs of the application, including legal costs.

The judgment does not allow homeowners to ignore levies they lawfully owe. It does, however, confirm that an association cannot disable access to a resident’s property to force payment of a disputed debt.

Embroiled in a levies dispute? Speak to us about your rights and the appropriate legal remedy.

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

“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.

© LawDotNews

“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.

© LawDotNews

“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