“All’s fair in love and war, but not in business.” (Modern twist on the old proverb)

Your business is flying after years of hard work and personal sacrifice. Suddenly, your most trusted employees resign and set up in direct opposition to you. The speed with which they do so makes you realise there’s something fishy going on.

Sure enough, they are brazenly using your confidential knowledge, resources and client relationships against you.

A recent High Court decision provides a perfect illustration of how our law can and will protect you from that sort of unfair competition.

A new business and software in 11 days? Something’s fishy

This unhappy saga starts with a company in the niche business of measuring and analysing diesel engine emissions. Monitoring these emissions is important in several industries, most notably the underground mining industry. It’s the first and only such business in South Africa thanks largely to two factors: firstly, its exclusive Africa-wide distribution agreement with a German supplier of specialised equipment, and secondly, its founder’s development of custom software.  

All went well until two of the company’s senior managers resigned from their positions. Just 11 days later they had set up their own business in direct opposition to their erstwhile employer. One can only imagine his distress and anger when he realised that they were using the fruits of his technical expertise and hard work to try to poach his clients from him.

He lost no time in taking legal steps, and when the managers refused point blank to stop trading, he asked the High Court for an order forcing them to do so.

What is springboarding?

“Springboarding”, as the Court put it, “entails not starting at the beginning at developing a technique, process, piece of equipment or product, but using as a starting point the fruits of someone else’s labour.”

Competition and entrepreneurship are of course healthy and to be encouraged, but only if they are lawful. Springboarding grounded in unlawful conduct is prohibited.

From springboarder to belly flopper

The evidence of unlawful conduct in this case was overwhelming. For example, one of the managers had months previously been suspended under suspicion of planning a competing business after a budget for a new venture, including a provision to buy the specialised German equipment, was found on his laptop. In due course their new company duly bought the equipment, despite them having full knowledge of the distribution agreement in favour of their employer (they couldn’t deny knowledge, having actually signed the agreement on behalf of the employer).

The Court was also sceptical of the new company’s claim to have developed its own independent software in a matter of weeks, especially in light of evidence that, shortly before resigning, one of the managers had emailed his employer’s software to himself.

The final nail in the managers’ coffin was that their marketing presentations to two of the employer’s clients were sufficiently similar to the employer’s presentations for the Court to conclude that they were using its business model, methodology, equipment and software against it.

As regards their terms of employment, only one of the employees had signed a contract (it included a confidentiality clause). But what mattered was not their contracts, but that as employees they had a general fiduciary duty to act in good faith and in their employer’s best interests.

Referring to the abundant evidence of their misuse of confidential information gained during their employment, the Court slammed the managers and their new company with a series of orders that will presumably cripple their new venture, at least for now.

They and their new company are prohibited from unlawfully competing with the original business for eighteen months, they must return all confidential information and documentation (deleting electronic copies), and cannot disclose the information to anyone else. What’s more, the Court ordered them to pay costs on the punitive attorney and client cost scale.

A checklist to protect your business from springboarding

The employer is victorious, but it’s taken him almost a year to get here, and inevitably his business (and he personally) will have suffered.

With prevention always being a great deal better than cure, you can protect your business from going through all the delay, cost, trauma and business risk of a court fight with this checklist:

• Watertight contracts. Your employment contracts, particularly those relating to senior staff with access to vital confidential information, should contain strong confidentiality, non-disclosure, good faith, conflict of interest and restraint of trade clauses. This employer was able to rely on a breach of his employees’ general fiduciary duties, but his position would have been that much stronger had both senior managers been bound contractually as well.
• Widen the net. Looking beyond employees, consider also other business partners like suppliers and contractors who might gain access to confidential information, and structure your agreements with them accordingly.
• Quantify your worth. Identify and list all your confidential information: intellectual property, technical know-how, client and other business relationships, pricing strategies, business strategies, trade secrets and any other sensitive information.
• Be prepared. Check that everything is held securely, that access is limited on a need-to-know basis to trusted personnel, and that access is recorded. This way, if you are stabbed in the back by an employee, you’ll be able to prove misconduct and breach of fiduciary duty.
• No stone unturned. When staff leave, remind them (in writing) of their duties in regard to confidential information, and recover all company documentation, laptops etc before they leave.
• Be vigilant. Monitor for “information leaks” and for any other possible misuse of confidential information. Increase your monitoring when staff resign. Keep an eye on your competition for any signs of them using information leaked from within your ranks.

Perhaps most importantly, act decisively at the first hint of a springboarding attempt. A robust lawyer’s letter will often be enough to nip the problem in the bud.

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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“Things do not go away. They go somewhere.” (Annie Dillard)

Many trustees assume that a dormant trust can be safely forgotten. No income, no assets, no transactions … No problem.

SARS has made it clear that this assumption may be an expensive one.

In recent months, SARS has intensified its focus on trust compliance, targeting trusts that have failed to submit annual income tax returns. What many trustees may not realise is that inactivity does not remove a trust’s tax obligations.

A trust that has been sitting dormant for years is still required to submit annual income tax returns. Failure to do so can now result in administrative penalties, even where the trust has conducted little or no activity.

Dormant does not mean exempt

One of the most common misconceptions among trustees is that a trust only has compliance obligations if it earns income, owns assets, or actively conducts transactions.

That is not how SARS views the issue.

According to SARS, all registered trusts, whether economically active or passive, are required to submit annual income tax returns. The obligation exists even where the trust has little or no economic activity.

Why SARS is paying closer attention

Since May 2026, the revenue authority has been issuing administrative penalty assessments to trusts with outstanding returns following earlier final demands for compliance. Trustees who received those demands were given an opportunity to correct the non-compliance before penalties were imposed.

Depending on a trust’s assessed taxable income, monthly administrative penalties can range from R250 to R16,000 and may continue accruing if the non-compliance is not remedied.

This reflects a broader shift in SARS’ approach to trusts. What was once viewed by many as a relatively passive area of administration is increasingly becoming an area of active oversight and enforcement.

Thinking about winding up a trust?

Many trustees only discover outstanding compliance issues when they begin taking steps to terminate a trust’s affairs. By that stage, years of outstanding returns, incomplete records, or unresolved SARS obligations may need to be addressed before the process can move forward.

Importantly, a trust that has effectively ceased operating is not automatically regarded by SARS as deregistered for tax. Trustees remain responsible for ensuring that trust information is maintained, updated, and, where appropriate, formally deregistered through the correct processes. Failure to do so may expose the trust, and potentially its trustees in their capacity as representative taxpayers, to penalties and other consequences under the Tax Administration Act.

Winding up a trust and deregistering it with SARS are not the same thing. A trust that trustees regard as dormant, inactive, or terminated is still regarded by SARS as a registered taxpayer with ongoing filing obligations until it has been properly deregistered.

The position can become particularly costly where penalties have been accumulating in the background.

As SARS continues to invest in data capabilities and automated enforcement mechanisms, historic compliance issues are becoming easier to identify and harder to overlook. In some cases, trusts that trustees believed were inactive for years are now being drawn back into the compliance net.

The lesson is straightforward: before assuming that a dormant trust requires no further attention, trustees should ensure that all filing obligations have been met and that the trust’s SARS records are up to date. A trust may be dormant in practice, but that does not mean it has disappeared from SARS’ radar.

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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“The buyer needs a hundred eyes, the seller not one.” (George Herbert)

A Marina Da Gama property. A collapsed wooden deck. A purchase price of R1.55 million and repair costs claimed of just over R100 000. The facts are not complicated. But the legal battle that followed lasted more than a decade.

What happened

The buyers purchased a residential property in October 2013 after the estate agent described it as being in stunning condition. They took occupation in January 2014. Seven months later, the upper wooden deck collapsed. Expert evidence subsequently confirmed that the decks had been constructed without approved plans and were not built to National Building Regulations standards. The defects were latent, meaning they were not visible to a layperson on inspection.

The buyers pursued the estate agent, his close corporation, and the seller across eight separate claims. At the close of the buyers’ case, the defendants asked the court to dismiss the matter on the basis that insufficient evidence had been presented against them. The court agreed and dismissed all the claims.

“Stunning” is not a structural warranty

The buyers argued that the estate agent’s description of the property as being in “stunning” or “beautiful” condition amounted to an actionable misrepresentation. The court disagreed.

Descriptive sales language of that kind is puffery. It reflects aesthetic opinion, not structural fact. It does not amount to a representation about the integrity of the building, compliance with approved plans, or the absence of latent defects. To cross from puffery into misrepresentation, a statement must assert a verifiable fact. Words like “stunning” do not do that.

The estate agent’s duty of disclosure, under the legislation applicable at the time, extended to material facts within his personal knowledge. It did not require him to conduct engineering or technical investigations to uncover hidden structural defects. The defects would not have been visible to a layperson. They were not within his knowledge. No actionable misrepresentation was established.

The voetstoots clause held

The sale agreement contained a voetstoots (as it stands) clause. To defeat it, the buyers were required to prove two things: that the seller had actual knowledge of the latent defect, and that he deliberately concealed it with the intention to defraud.

Neither was established. The buyers’ own evidence undermined the claim. Both buyers described the seller as a decent, honest person. One stated plainly that the seller did not know about the defects. Quick-fix repairs noted by the experts did not change that conclusion. Repairs may reflect ordinary maintenance. They do not, on their own, establish knowledge of a structural defect or an intention to deceive. Fraud is not lightly inferred.

Getting the damages calculation wrong

Even if the buyers had established liability, their damages claim faced a separate problem. The actio quanti minoris, a claim for a reduction in the purchase price, entitles a buyer to compensation for the property’s reduced value caused by the defect. The reasonable cost to repair may serve as evidence of that reduction, but no more. The buyers simply claimed replacement costs, which was entirely the wrong way of going about it.

In plain terms

Puffery is not a promise – in fact, it’s to be expected in real estate listings. A voetstoots clause is not easily defeated. And the burden of investigating a property before signing rests firmly on the buyer.

Nine court days. Twelve years. Presumably substantial legal costs. Every claim dismissed. Get advice before you sign, not after the deck collapses.

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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“I can’t afford to die; I’d lose too much money.” (George Burns, comedian)

At the heart of any estate plan lies your will. Pair it with a file containing all the information and documents that your executor and heirs will need to wind up your estate, and you’ve laid a solid foundation for protecting your loved ones when you’re no longer around to do so.

Hopefully, most of us have already crossed those two essentials off our “to do” list. But there’s a third step which doesn’t always receive the attention it requires: planning for the costs your estate will have to pay, including a number of taxes.

As with all things to do with SARS and tax, there are many detailed requirements and grey areas involved, so what follows is a general guide only. It’s no substitute for specific professional advice.

The big costs you should plan for

• Costs: Central to your estate planning will be understanding just how much each of your heirs will actually receive from your estate after costs, the most significant of which are usually executor’s fees and government taxes.
• Taxes: There are two main taxes to consider: estate duty, and capital gains tax (CGT). In this article, we’ll focus on the CGT aspect for the simple reason that it’s often forgotten about, and even more often misunderstood.

CGT: The ambush tax lurking in the wings

CGT is one of those low-profile taxes that lurks around unobtrusively in the wings, being ignored and forgotten about until it suddenly pops out of the woodwork.

In this case, the “popping out of the woodwork” will happen when you’re no longer around to be ambushed by it. That’s because CGT is triggered by a taxpayer’s death, which is a “deemed disposal” tax event. In other words, your assets are deemed to have been sold at market value on the day you died. And that triggers a tax liability for your estate on the asset’s growth in value since you acquired it – the capital gain.

Before we get into the nitty-gritty of putting figures to that liability, let’s share a smidgen of good news.

The good news: 3 big exclusions, boosted by Budget 2026

Note firstly that no CGT at all is payable on “personal-use assets”, retirement fund benefits and most mainstream life policies.

Secondly, there’s “spousal rollover relief”: liability for CGT on assets left to your spouse is “rolled over” so that it’s payable not by your estate but later on by your spouse (on sale) or by their estate (on death). That, of course, can make a tremendous practical difference in ensuring that your spouse will be okay financially.

Thirdly, the annual exclusion in year of death, the primary residence exclusion and the small business disposal exclusion can all reduce CGT substantially. And as we note below, Budget 2026 has boosted them all. Good news indeed!

1. Annual exclusion in year of death: If you sell assets during your lifetime, your CGT liability is reduced by an annual exclusion of R50,000 (up from R40,000). In the year of your death, this exclusion is boosted to R440,000 (previously R300,000).
2. The primary residence exclusion: This is a big one for property owners in respect of their “primary residence” (the home you ordinarily live in), with the exclusion increased from R2,000,000 to R3,000,000.
3. The small business asset disposal exclusion: If you leave a small business with a market value of up to R15,000,000 (previously R10,000,000), your estate may qualify for a R2,700,000 exclusion (was R1,800,000) on the assets of the business, which are deemed to have been disposed of on your death. Many small businesses will also qualify for wear-and-tear on assets used in the business. Quantifying this requires professional assistance.

How to calculate CGT

Now for the actual CGT calculation, which will give you a rough idea of the final liability so you can plan for it:

1. Include all your assets (except those mentioned above as not being subject to CGT) at their current market value.
2. Deduct the base cost of each asset; that is what you bought the asset for plus allowable costs such as costs of acquisition and the cost of subsequent capital improvements.
3. Calculate the capital gain or loss by subtracting the base cost from the market value.
4. Deduct all exclusions from the capital gain to calculate the net gain.
5. Multiply the net gain by the 40% inclusion rate to give you the taxable capital gain.
6. Finally, apply your marginal tax rate to that taxable capital gain to give you the final CGT liability.

Putting together a comprehensive estate plan, anchored by your will, is essential to ensure that your loved ones are properly catered for after you’re gone. You know who to call if you need any help!

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

“A creature with a big enough head to make a contract should have the sense to make one it can keep.” (Barbara Kingsolver)

A R1.725 million deposit. A bank guarantee that never arrived. A property that ultimately sold for significantly less than the original price. What happens to the deposit money?

A sale that fell apart

The seller agreed to sell an agricultural property in Kyalami for R17.25 million. The purchaser paid a deposit of R1.725 million into the estate agent’s trust account. The balance of the purchase price was to be secured by a bank guarantee on request.

The seller called for the guarantee and gave 14 days to comply. When it was not provided, a further notice gave five business days to remedy the breach. The guarantee was still not furnished. The seller cancelled the agreement and claimed the full deposit.

The purchaser attempted to recover it, but the claim failed.

Rouwkoop or penalty clause?

A true rouwkoop clause – from the Dutch for “regret-purchase” – allows a party to withdraw from a sale by paying a fixed amount. It is an agreed exit mechanism, not a consequence of breach. A forfeiture clause operates differently. It is triggered by breach and is subject to the Conventional Penalties Act. The clause in this case fell into the latter category. The purchaser’s only remaining recourse was section 3 of the Act, which allows a court to reduce a penalty if it is out of proportion to the prejudice suffered.

Why the deadline mattered

The purchaser argued that the word “timeously” meant within a reasonable time, not strictly within the five-day notice period. The court rejected that argument.

Read in context, the agreement created a clear notice-and-remedy mechanism. The five-day period was the operative timeframe. “Timeously” did not introduce flexibility. It referred back to the period expressly stipulated in the contract.

Once the guarantee was not provided within that period, the seller’s right to cancel arose. What the purchaser might have done after the deadline was irrelevant.

Can the court step in?

The purchaser invoked section 3 of the Conventional Penalties Act. That argument did not succeed.

The court looked beyond the arithmetic. It considered the broader consequences of the failed transaction, including the collapse of an onward purchase, the loss of a prior offer, bridging finance, and extended holding costs.

On that evidence, the seller’s prejudice was substantial. The forfeited deposit bore a reasonable relationship to that prejudice. There was no basis for interference.

The real lesson

Deadlines in property transactions are not flexible unless the agreement says so. A deposit is not a placeholder and sellers don’t have to play nice. The bottom line? Get advice before you sign.

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

“Justice cannot be for one side alone, but must be for both.” (Eleanor Roosevelt)

Under the antenuptial contract alone, she would have had no claim on his estate. The court found otherwise. A woman who spent three decades running a home, raising her husband’s children, supporting his career, and making financial contributions to joint expenses received 40% of his estate. The parties were married out of community of property without the accrual system. The antenuptial contract said their estates were separate. Contribution told a different story.

What changed and why it matters

Until recently, redistribution orders under section 7(3) of the Divorce Act were only available to couples married before 1 November 1984. Couples who married after that date and excluded the accrual system in their antenuptial contract had no access to this remedy.

The Constitutional Court changed that, declaring the limitation constitutionally invalid. It found the limitation to be unconstitutional, constituting unfair discrimination that disproportionately affected women, who more often sacrifice financial independence for the benefit of the marriage. The redistribution remedy is now available to couples married out of community of property without accrual, regardless of when they married.

What the law requires

A redistribution order is not automatic. The court must be satisfied that the claimant contributed directly or indirectly to the maintenance or increase of the other spouse’s estate during the marriage. The court then considers the means and obligations of each party, any donations made during the marriage, and any other relevant circumstances, before determining what transfer is just and equitable.

Ordinary spousal duties can be enough. A claimant does not need to show contributions beyond what a spouse would ordinarily do. Managing a household, caring for children, supporting a partner’s pursuits: all of these count. The remedy is nonetheless discretionary. Each case turns on its own facts and the burden of proof rests on the party seeking redistribution.

What the court found

The parties had been together for thirty years, six of them as cohabitees before their marriage in 1999. The wife worked in her husband’s legal practice, cared for his children from a previous marriage, managed both their homes, and made direct financial contributions to municipal accounts for two properties. She received modest remuneration, had no savings, no pension, and no formal qualifications beyond standard eight.

The husband, by contrast, built a successful legal practice, invested in several businesses, accumulated properties, gold coins, artworks, and a family trust. He retired comfortably. She left the marriage at 58 with jewellery worth R45 800 and a broken-down vehicle.

The court accepted that the pre-marital cohabitation period was a relevant supporting factor in the redistribution assessment. Where parties live together as husband and wife and pool their resources, that period can constitute a universal partnership, and here it extended the effective duration of their shared life to thirty years rather than twenty-three.

The court also noted that the husband had not made full disclosure of assets held through the family trust, a factor that informed the court’s overall assessment of his estate. The clean break principle was applied. Rather than granting permanent maintenance, the court ordered redistribution of 40% of the husband’s net estate, together with twelve months of rehabilitative maintenance at R20 000 per month.

What this means in practice

An antenuptial contract excluding accrual is not a guarantee that estates will remain separate at divorce. Where one spouse has contributed, directly or indirectly, to the growth of the other’s estate, a court has the power to order a transfer of assets, notwithstanding the contract.

Generally speaking, the longer the marriage lasts and the greater the disparity between estates, the more likely the Court is to order a transfer of assets. But the outcome is never certain. Courts assess these cases on their individual facts.

Got any questions about your ANC? Ask 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

“Good rules make good neighbours.” (Old proverb, updated)

The many benefits of living in a residential complex come, naturally enough, with obligations as well as rights.

With its innate potential for conflict between competing rights, community living requires a fine balancing act between the individual rights of owners and residents, and the rights of the community as a whole.

Good rules make good neighbours

Which is of course where a complex’s rules and regulations come into play. Rules provide a structured framework to regulate issues of common concern. Management rules concentrate on administrative and financial issues, while conduct rules (which we’ll focus on in this article) address issues such as noise, pets, parking, use of common property and so on. They are essential not only for protecting everyone’s individual and communal rights, but also to minimise disputes, ensure long-term sustainability and maintain property values.

A well-managed complex benefits everyone – residents, investors, landlords etc.

The sight-impaired owner and his washing machine

Of course, conduct rules are meaningless without enforcement, and that exposes everyone concerned to another balancing act: consistent enforcement versus over-rigid and unconstitutional enforcement.

A recent Supreme Court of Appeal (SCA) decision highlighted this in the case of a complex with a communal washing area.

Before buying his unit in a complex in Gauteng, a visually-impaired man was assured by the estate agent – incorrectly as it turned out – that he would be entitled to modify the washing area directly outside his unit. He duly, without body corporate authority, moved his washing machine into the area and installed piping and a tap, with a security gate and plastic roof sheeting to protect it from the elements. All this, he said, was necessary both to ensure his safety (he cited the danger of slipping in water leaks which he wouldn’t be able to see) and security for his washing machine and clothes.

The body corporate was having none of that and removed the gate and plastic sheeting, citing its conduct rules which prohibit any owner from making alterations to the common washing area. It refused his request for an exemption from the rules on account of his visual impairment, a mediation attempt failed, and eventually his appeal against a CSOS (Community Schemes Ombud Service) ruling found its way to the SCA.

What came out in the wash

The end result? The body corporate is ordered to allow the owner exclusive use of a portion of the common washing area for his washing machine, plus he can install a protective cover over it at his own expense. He must maintain both in good repair, cannot damage the common area wall, has to pay a contribution levy, and must make good all changes when he leaves. 

The Court’s reasoning gives us a clear roadmap to our rights, both as bodies corporate and HOAs trying to enforce rules and regulations, and as owners feeling prejudiced by unjustifiably rigid enforcement of them:

• The duty to reasonably accommodate persons with disabilities: Our Constitution prohibits unfair discrimination and enshrines a right to dignity and equality as per the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) which prohibits any failure to take steps to reasonably accommodate persons with disabilities.
• When rigid enforcement of rules isn’t justified: The body corporate’s refusal to accommodate the owner in this case didn’t take into account that his modifications were necessary for safety reasons, they were proportionate, tailored for his disability, and confined to what he considered essential to prevent harm to himself. They caused no undue inconvenience or hardship to other members of the scheme, nor any expense for the body corporate. Its rigid attitude in enforcing its conduct rules was not justified, and its failure to give him its conduct rules electronically or in Braille was unjust.
• What does “reasonable accommodation” entail? Perhaps the most critical of the Court’s findings is this: “To achieve the objective of equality, I find that reasonable accommodation in a case like this may include allowing structural modifications, granting exclusive rights or exempting disabled residents from burdensome rules.”
• The “minimum hardship to members” principle: At the same time, a body corporate must, in establishing what is and isn’t reasonable in the circumstances, “espouse the principle of minimum hardship to its members”. Witness the strict limits imposed by the Court in this case on the unit owner’s rights of usage.

Thin end of the wedge or just a balancing act?

There may be some concern amongst bodies corporate and HOAs that this is the “thin end of the wedge” when it comes to effective enforcement of rules and regulations. When faced with individual requests which go against the rules and regulations, where should bodies corporate and HOAs draw the line?

Ultimately, the safest course is probably to keep on performing that delicate balancing act we mentioned above, plotting a careful course between individual and communal rights fairly, impartially and reasonably. Common sense isn’t as common as it should be.

Whether you’re an owner, body corporate or HOA, we’re here to help you plot that course!

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

“To avoid criticism, do nothing, say nothing, be nothing.” (Elbert Hubbard)

An unpleasant boss. A strained working relationship. A manager whose style leaves much to be desired. Sound familiar? For many employees, the line between a miserable workplace and an unlawful one is frustratingly blurry. A 2023 Labour Court judgment helps draw that line more clearly. And the verdict may surprise some employees who’ve been banking on a harassment claim.

A senior official takes her employer to court

A Deputy Director-General at the Department of Justice and Constitutional Development referred a claim of unfair discrimination to the Labour Court. She alleged that she had been harassed on arbitrary grounds (as opposed to listed grounds like “race” or “gender”) in contravention of the Employment Equity Act (EEA).

Her complaints were wide-ranging: inadequate administrative support and resources, the removal of some of her work functions and reportees, what she viewed as selective disciplinary sanctions, a precautionary transfer she experienced as a demotion, being denied international travel and refused leave requests, plus a failure by the Department to consider her grievances.

The Court dismissed her claim in full.

What does “harassment” actually mean in law?

The Court was at pains to distinguish between exercising ordinary managerial authority and conduct that crosses into unlawful harassment. The two are easily confused, and employees sometimes interpret unwelcome management decisions as harassment simply because the consequences are unpleasant.

For conduct to constitute harassment under the EEA, it must meet an objective test. It must:

• Impair the employee’s dignity. Feeling sidelined or unhappy is not enough. The conduct must cause demonstrable harm to dignity.
• Create a hostile or intimidating work environment. Tension and friction are regrettably common in workplaces. The bar is higher than mere discomfort.
• Be linked to a prohibited or arbitrary ground. This is the element that catches many claimants off guard. An “arbitrary ground” is an unlisted personal characteristic, but it must be inherent to the person, form the basis for the ill-treatment, and result in substantial harm comparable to listed grounds like race or gender. Generalised management decisions, however unwelcome, do not qualify.

Crucially, the test is objective, not subjective. What matters is not solely how the employee experienced the conduct, but how a reasonable person would assess it in context.

Where the DDG’s case fell short

The Court found that, objectively assessed, her complaints amounted to the unpleasant consequences of management decisions rather than harassment in the legal sense. Significantly, she was unable to explain why the treatment she experienced amounted to unfair discrimination. A bald allegation is not sufficient. Employees must clearly establish the link between the conduct and a dignity-impairing ground.

What employers and employees should take from this

Employers may take some comfort here. Issuing instructions, reallocating duties, managing performance, declining travel requests, and initiating investigations are ordinary management functions. Provided those decisions are rational, grounded in legitimate operational reasons, consistently applied, and properly documented, they will not automatically expose employers to harassment claims.

That said, the Court was clear that managerial discretion has its limits. Decisions must be fair, transparent, and free from personalisation or arbitrary whim. When they are not, they may give rise to legal challenge.

Employees should be aware that the EEA is not a catch-all for general workplace dissatisfaction. If your complaint relates to a transfer, disciplinary steps, or benefits, the proper route is likely the Labour Relations Act’s unfair labour practice framework, not an EEA harassment claim.

The distinction between a difficult manager and a workplace bully matters enormously, both legally and practically. If you are uncertain which side of the line your situation falls on, come and talk 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

“The big print giveth and the fine print taketh away.” (Tom Waits)

You have almost certainly signed a disclaimer at some point. A waiver before a trail run, an indemnity form before a bungee jump, a clause buried in a brochure. Businesses rely on these documents to limit their exposure when things go wrong. A 2026 Supreme Court of Appeal judgment is a sharp reminder that a disclaimer is only as good as the process behind it, and that courts will not lightly allow a company to escape liability on the strength of fine print that was never properly agreed to.

A birthday surprise that ended in serious injury

An Australian tourist was travelling in a converted safari truck in Botswana as part of a Southern African tour arranged by a safari business. The trip had been booked by her life partner as a birthday surprise, without her knowledge. While the truck was moving, she stood up to access her locker, which the tour operator actively promoted as accessible while the vehicle was in motion. She lost her balance and lurched against a window which fell out of its frame. She fell through the opening onto the tar road and sustained serious injuries.

When she sued for damages, the company relied on two disclaimers. The courts were not persuaded.

When does a disclaimer actually bind you?

The party relying on a disclaimer bears the onus of proving that a binding agreement was concluded. That requires more than paperwork. Our law requires the following:

• Personal consent. A disclaimer binds a person only if they have personally agreed to it, or if someone signing on their behalf had proper authority to do so. A life partner, family member, or friend cannot sign away your legal rights without your knowledge and express authorisation.
• Adequate notice. The disclaimer must be displayed with sufficient prominence to reasonably come to the attention of the person against whom it is enforced. Burying a liability exclusion under an “Insurance” heading does not meet that standard.
• Specific and unambiguous wording. Disclaimers are interpreted restrictively. General wording will not exclude liability for negligence unless it does so clearly and unequivocally. Ambiguity counts against the party that drafted the clause.
• Consumer Protection Act compliance. Where serious injury or death is a risk, sections 49 and 58 of the CPA require that the risk be specifically drawn to the consumer’s attention in plain language and in a conspicuous manner before the activity commences.

Two disclaimers, two failures

Both disclaimers relied on by the business failed these requirements. The first, buried in a brochure under an insurance heading, was too general to clearly exclude liability for the negligence alleged and had not been adequately brought to the victim’s attention. The second was an indemnity form signed by her partner without her knowledge. The SCA found no credible evidence that she was even aware of its existence. The business had only itself to blame. It had failed to ensure that each participant had personally concluded a binding indemnity.

The Court further indicated that having actively promoted the conduct that caused the injury, any disclaimer purporting to exclude liability for it would likely have been contrary to public policy and thus unenforceable.

What this means for businesses and consumers

Businesses operating in high-risk environments cannot afford to treat indemnity documentation as a formality. A disclaimer is not a substitute for safe practices and proper risk management. Consent cannot be assumed, and general wording will not suffice.

For consumers, your right to bodily safety is not easily signed away, especially by someone else on your behalf.

The lesson is straightforward. A disclaimer must be clearly communicated, properly understood and formally agreed to. It will not protect a business where consent is absent, notice is inadequate, or the wording does not clearly cover the risk.

If your indemnity documentation needs reviewing, or you are unsure of your rights as a consumer, ask 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.

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“One of the greatest disservices you can do a man is to lend him money that he can’t pay back.” (Jesse H. Jones, entrepreneur)

A recent High Court decision provides yet another cautionary tale for lenders. The stakes are high: get this wrong, and you could lose everything.

Two big risks for lenders

Before you lend, be aware of two major risks that you need to manage. Both are imposed by the National Credit Act (NCA):

1. Not registering as a credit provider: If you lend money without registering when you were required to do so, your agreement will be invalid and unenforceable. You will lose everything unless you can convince a court to make a “just and equitable” order allowing you at least a partial recovery. This is by no means guaranteed, so a risk not worth taking.

   As a general guideline, if your loan is made at “arm’s length” you will probably have to register. In contrast, loans not made at arm’s length – such as informal loans between family and friends, or between related companies in a group – may be excluded. But the rules are complex and our courts have had to wrestle with several borderline cases over the definition of “arm’s length”. There is no substitute for advice specific to your situation.

   Note that even a single qualifying loan, of any size, can trigger the requirement. The thresholds that previously limited it to commercial lenders and to larger loans fell away in 2014 and 2016 respectively.

2. Reckless lending: Let’s turn now to the second risk, which applies whether you are properly registered as a credit provider or not. We’ll illustrate it with a recent High Court decision in which a family trust’s lending was held to be reckless and therefore irrecoverable.

A family trust lends R430k to a heavily indebted couple

A SAPS employee and her husband, heavily indebted to a range of creditors, approached a debt consolidation business for help in 2012.

Having carried out its version of the credit assessment required by the NCA, the debt consolidator organised a lifeline for the couple in the form of a R430,000 loan from an investor (a family trust) to pay off their debts. The loan was secured primarily by a bond over the couple’s house in Kraaifontein. A secondary security in the form of a sale agreement by the couple to the trust was to be held in reserve and activated only in need. The idea was that, after a short period of financial rehabilitation, the borrowers would refinance the loan through a bank, but that never happened.

When the borrowers defaulted on their repayments, the trust sued for R430,000 plus interest (a lot of money at 17.1% p.a. for 10 years), and an order allowing it to sell the couple’s bonded house to satisfy the debt.

The Court declared the credit agreement “reckless credit” and set it aside. The trust must now write off the balance of its loan and interest, cancel its bond over the couple’s house, and pay all the legal costs. Its only consolation is that the Court, in exercising its discretion to structure a just and equitable solution between the parties, allowed the trust to keep the R251,325 already paid to it.

What went wrong?

Why did the lender lose so badly? In a nutshell, the affordability assessment performed by the debt consolidator was flawed. Instead of asking whether the couple could afford this loan based on their existing financial means (as required by the NCA), the assessment relied on “a risky potential of future funding”, i.e., the speculative prospect of a mainstream bank granting a further loan in the future. The borrowers had always been over-indebted, this new loan made their situation even worse, and therefore the lending was reckless.

Lenders: How to avoid a “reckless lending” declaration

NCA regulations in force since 2015 set out in detail the various technical criteria and formulae to be used in assessments. This is just an overview of what you need to cover:

• Perform a proper credit assessment: This is make-or-break. It is a specific and fundamental requirement of the NCA that you carry out a proper assessment before granting credit, and you must be able to prove that you did so with documentary backup if challenged.
• Confirm affordability: Assess income, expenses, and existing debt, verifying everything with proper salary slips, bank statements, etc. As we saw in the case above, affordability must be assessed on the borrower’s current “financial means, prospects and obligations”, not future hopes or prospects. You must establish the borrower’s “discretionary income” by subtracting from total income all monthly deductions, living expenses and the like, with reference to a table of “norms” set out in the regulations.
• Check repayment history: You must take into account the borrower’s debt repayment history under other credit agreements.
• Explain everything fully to the borrower: Make sure the borrower fully understands the structure of the loan, the total costs, obligations, and risks. Use plain, non-technical language to avoid any claims of confusion or deception.
• Avoid over-indebtedness: You must be able to show that the repayment plan is realistic and affordable to avoid a finding of over-indebtedness.

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