“I have heard that in war, haste can be folly, but have never seen delay that was wise.” (Sun Tzu, The Art of War)
Collecting debt from a recalcitrant debtor can feel very much like going to war, particularly if you have to slog through the trenches of a series of increasingly costly court battles.
Which is where Sun Tzu’s warning against delay comes into play, because not starting collection in time could defeat your claim entirely. The reason of course is that debts – with only a few exceptions – prescribe (become unenforceable) after three years. Although that sounds like a long time, it can race by all too quickly!
Indeed, our law reports are full of cases where creditors have lost large amounts of money through procrastination, so it’s essential to start the process as soon as you think you may have a claim against someone.
It’s important to note however that the “prescription” defence has its limits, as a recent Supreme Court of Appeal (SCA) decision illustrates.
A Trust sued the sole member of a close corporation (CC) on the basis of allegations (hotly denied by her) that she, her CC, and her bookkeeper husband (since deceased, apparently by suicide) had defrauded a company in a sophisticated six-year scheme. Her husband, as the bookkeeper/accountant of both the Trust and the company, had allegedly made fraudulent payments totalling R21.8m to her CC through a series of fictitious transactions.
The Trust came into the picture when it took over the company in question. It identified suspicious transactions and commissioned auditors and forensic investigators to investigate. Critically, however, it was only during the inquiry held subsequently in her deceased husband’s insolvent estate that the member admitted receiving monies from the CC, and produced the bank statements which came to underpin the claims.
After some R12m was repaid, the Trust sued the member for the balance of R9.8m on two grounds:
Before defending the claims directly, she raised the prescription defence, saying the claims were more than three years old and thus unenforceable. The High Court agreed with her, but the Trust appealed and the SCA held that the claims had not prescribed and that the trial could continue.
Let’s see why, and what lessons we can extract from that outcome.
This statutory claim for recklessness or fraud, held the Court, isn’t a “debt” for the purposes of prescription, which only begins to run when a court actually declares a member personally liable. That hasn’t happened, so prescription hasn’t yet started running.
Turning to the damages claim, the Court confirmed that “a debt is not considered due until the creditor knows the identity of the debtor and the relevant facts behind the debt. A creditor is assumed to have such knowledge if he could have exercised reasonable care to obtain it” – only then does the three years start running.
In this case, the Court held that although the forensic report had raised suspicion against the member, the Trust only acquired enough knowledge of the facts to actually sue her after the insolvency inquiry. The Trust then avoided prescription by issuing Summons within three years of that inquiry.
The Trust can now breathe a sigh of relief and return to the main trial in the High Court to prove its claims.
If you are unfortunate enough to fall victim to a sophisticated fraud, it may not be easy to identify the culprit and establish your claim immediately. But the sooner you call in the forensic investigators and ask us to advise on your best course of action, the less likely you are to have to fight your way through the courts (as this Trust has had to do just to retain its right to continue with its claim).
“Landlords grow rich in their sleep.” (John Stuart Mill, economist)
If you are thinking of buying (or already own) a house or apartment in a residential complex with the idea of renting it out as an Airbnb (whether permanently or on an “I can make a fortune this Christmas” basis), tread carefully.
A recent High Court decision has signalled confirmation that your body corporate or homeowners’ association (HOA) can, within limits, regulate your right to do so.
The setting for this dispute is a large residential scheme in the Silver Lakes area of Pretoria, envisioned by its developers as “a family orientated lifestyle estate where families enjoy the various amenities which include the outdoors, beach and water activities in a safe and secure environment.”
However, many of the owners don’t reside in the complex permanently but rather let their units out on a short-term letting (“STL”) basis as holiday accommodation, usually for one to three days at a time.
That, says the Homeowners’ Association (HOA), has become a major problem for residents, because holidaymakers renting the units don’t always adhere to the rules and family ethos which it tries to maintain and preserve. The short-term tenants are, it says, there only to party and have a good time, which predictably has led to endless complaints from residents relating to noise, overcrowding, traffic congestion, raucous behaviour, security risks and so on.
As its original conduct rules proved inadequate in addressing these concerns, the HOA adopted new, stricter short-term letting rules. Among other restrictions, owners were now prohibited from letting out their units for periods shorter than three months without the HOA’s prior consent. Contraventions of this rule attracted a penalty of 90% of the monthly levy.
These rules were originally approved by the Community Schemes Ombud Service (CSOS) but were later challenged by a group of owners who wanted to keep the short-term-letting party going. The CSOS adjudicator set the rules aside as invalid and unreasonable, characterising the estate as “a leisure holiday resort lifestyle estate in which the presence of non-permanent residence is the norm”.
The HOA appealed this order to the High Court, which has issued an interim order suspending the part of the CSOS order setting aside the rules. Effectively, the Court has allowed the stricter rules to remain in force until the appeal is finalised.
The Court’s order is only an interim one pending the final outcome of the appeal – but the fact that it didn’t set aside the rules at this stage does suggest at least a provisional confirmation of the right of HOAs and bodies corporate to regulate short-term letting in this way.
We’ll have to wait for the final outcome of the appeal for more clarity, and it is likely that every case will be decided on its own facts and merits. But our courts have previously upheld similar conduct rules and it seems logical that they will continue to do so in appropriate cases.
Here are some thoughts on how you should address this thorny issue in the meantime. To be on the safe side:
The High Court’s ruling is interim, with the final outcome of the HOA’s appeal still to come. But it does signal a strong likelihood that our courts will continue to uphold restrictions on STL that are fair, reasonable, and correctly instituted and enforced. Regardless, transparency and communication will always help to avoid dispute and conflict.
A recent Supreme Court of Appeal (SCA) ruling has confirmed that, despite previous court rulings suggesting that community scheme disputes must always be referred firstly to the CSOS in the absence of “exceptional circumstances”, you do in fact have a choice – either the CSOS or the High Court can hear your matter direct.
Going direct to court would certainly save you from having to fight your way through two sets of proceedings (as the parties in this case have had to do, with no final resolution yet in sight) but be careful. Not only is the CSOS’s dispute resolution service likely to be a lot quicker, more affordable, and less formal than going to court, if a court feels that you weren’t justified in approaching it direct, it could well punish you with some form of punitive costs order. Choose wisely!
Bottom line: there are plenty of grey areas and difficult decisions here, so don’t hesitate to ask us for advice specific to your situation.
A property’s “title deed” (more formally, “deed of transfer”) is the legal document that proves ownership of immovable property (land, house, sectional title unit etc). It’s issued by the local Deeds Office, and contains detailed information about the property – owner/s, size and description, purchase details, mortgage bonds, servitudes etc.
You’ll need your property’s original title deed when you come to sell or get a home loan, so keep track of it. If your property is bonded, the bank will have it. Otherwise it’s up to you to keep it safe! It’s possible to replace a lost title deed, but that will cause unnecessary delay in the transfer process.
“Forewarned is forearmed.” (Wise old proverb)
Government keeps assuring us that the long-delayed AARTO (Administrative Adjudication of Road Traffic Offences) system will finally begin its full national rollout on 1 December 2025.
There have been so many false starts to AARTO over the last fifteen years that many of us will no doubt take the attitude “I’ll believe it when I see it” … Particularly with all the speculation that the implementation could be delayed, varied or even blocked again by legal and other challenges.
But let’s not be caught unawares here – this time, the first phase really could be shooting out of the starting blocks on time, so it seems a good idea to start prepping for the changes. Particularly now that the annual holiday season, with its surge in year-end travel, speed trapping and roadblocks, is almost upon us.
In a nutshell, the way traffic fines work is about to change for millions of drivers, including private motorists, fleet operators, delivery drivers, taxi operators, owners etc.
Here’s what you need to know on a practical level.
Sensational, click bait headlines and fake news reports notwithstanding, the “driver demerit points” system, with its licence suspensions and cancellations for repeat offenders, is only scheduled to kick in on 1 September 2026.
If your vehicle is registered in, or if you drive in, any of the 69 major municipalities and metros countrywide scheduled for commencement on 1 December 2025, you’ll be subject to these new rules from day one, with the other 144 areas set to commence on 1 April 2026:
Note that although Johannesburg and Tshwane motorists have already lived with AARTO’s pilot fine system for years, from 1 December 2025 they will move onto the amended national AARTO framework and can expect stricter electronic service, updated fine tariffs, stronger enforcement order blocks on licence renewals, and new proxy nomination duties.
Bottom line: if you need our help with anything, please get in touch immediately!
“A family name holds the music of generations – it’s the first inheritance we receive.” (Attributed to Irish poet-philosopher John O’Donohue)
The Constitutional Court has just confirmed (with some significant adjustments) last year’s High Court ruling that both partners in a marriage have equal rights to choose their surname.
Previously, a woman – and only a woman – could choose when marrying to take her spouse’s surname, or to retain her own surname, or to assume a double-barrelled surname (her own surname with her husband’s surname).
However, if a man wanted to do the same (to adopt his wife’s surname or a double-barrelled surname) he had to apply formally to the Department of Home Affairs (DHA) and provide “good and sufficient reason” for wanting to change. The problem with that is that the reason had to be related to “a change in the marital status of a woman” – an impossible ask for men.
The Constitutional Court, and the High Court before it, grappled with this issue via applications from two couples whose attempts to depart from the “only women can choose” rule had been thwarted by the existing wording of the Births and Deaths Registration Act.
The couples’ reasons for wanting to depart from the norm will ring a bell with many. One couple wanted their new family to bear the wife’s maiden name as it symbolized her connection to her parents, who had died when she was young. The other wanted both spouses to use a combined (double-barrelled) name so that the wife’s maiden name, which is important to her, was not lost.
Our apex court has now confirmed that this unequal treatment was unconstitutional because it discriminated on the basis of gender, infringing on their rights to equality and dignity.
In a nutshell, the Court’s order employs gender-neutral language to ensure that everyone, regardless of gender or type of marriage, now has the same automatic rights when it comes to assuming a new surname.
Although the declaration of invalidity is suspended for 24 months to enable Parliament to either amend existing legislation or to pass new legislation, the Court’s ruling includes the provision that in the interim everyone can, as of right and without needing DHA authority:
Any other surname changes (including changes to your children’s surnames) still require application to DHA.
To avoid any confusion, it’s a good idea to tell the marriage officer before you marry what names you’ve chosen so the correct choices appear in the marriage register and on your marriage certificate.
Give us a call if we can help with anything.
“Raising kids is part joy and part guerilla warfare.” (Ed Asner, actor with a great sense of humour!)
A game-changing judgment from our Constitutional Court sets out new rules for parental leave.
The birth of a couple’s first child presented them with both a bundle of joy and a practical dilemma. Dad wanted to be the baby’s primary caregiver while his wife carried on running her two businesses, so he asked his employer for four months’ parental leave. “Sorry,” said his boss, “the law only allows you ten days”. In the end he had to take six months’ unpaid leave – which came with some unhappy financial and career consequences.
Off to the High Court he went. That Court’s declaration of invalidity of the relevant provisions in the Basic Conditions of Employment Act (BCEA) and Unemployment Insurance Fund (UIF) Act has now been confirmed by the Constitutional Court – with some important modifications.
Let’s start with a quick look at how the current wording of the two Acts creates an inherent inequality between parents.
In the far off “bad old days”, many expectant mothers had no job security or entitlement to maternity leave. That gradually changed for the better over many years, but even after a general entitlement to maternity leave was introduced it was, as the name suggests, available to women only. Then in 2020 came the brand-new and widely welcomed concept of “parental leave”, which brought fathers (and other non-birth parents) into the fold.
It was ground-breaking at the time but still not perfect, in that while biological birth mothers were entitled to “maternity leave” of at least four consecutive months, fathers (and other non-birth parents) got “parental leave” of only ten consecutive days. Adoptive leave and commissioning (surrogacy) leave was ten weeks for one parent but only ten days for the other. The UIF Act inevitably mirrored these inequalities.
The High Court found these discrepancies to be unconstitutional, and the Constitutional Court has now agreed. It’s given Parliament thirty six months to sort out the invalid provisions (new legislation is reportedly already in the pipeline), and in the interim the following changes apply:
Although you now have extended job security protection, you are still not entitled to paid parental leave unless your employment contract provides for it (common in larger corporates), or if a company policy or a collective agreement provides for it.
Better news is that the UIF allows you to claim for maternity and parental leave benefits, but currently still with restrictions mirroring the BCEA’s. The Court declared the relevant sections of the UIF Act invalid but again left it to Parliament to sort out, so it seems that nothing changes there for now.
Review all your employment contracts, company policies and procedures to ensure compliance with these new rules. Communicate them to your employees to ensure there are no misunderstandings and no unrealistic expectations – not all the media reports and online articles on this new development are accurate!
“In the summertime, when the weather is high, you can stretch right up and touch the sky.” (Mungo Jerry)
Summer’s here with its blue skies, happy holidaymakers from around the country and the world, and, as always, an upsurge in demand for houses. If you’re going to capitalise on this seasonal upswing, start planning your sales strategy now with our simple, practical Seller’s Checklist below.
Follow these 10 steps for a successful sale:
The first step is to outline your strategy, starting with your end goal. Of course, all sellers want to get the best price and to get paid out as quickly as possible, but brainstorm the specifics. What price do you actually want to achieve? Define your perfect buyers (a critical and much-overlooked step) and think about how you’ll find them. Which estate agent should you employ? And so on…
It pays to bring us in from the start. Not only can we help you find the right agent for the job, but we’ll also tell you what prices are being achieved in your area and share our thoughts on how to avoid the over-pricing trap – a common mistake which can taint a property for months, or even years.
We’ll also outline the whole sales and transfer process for you from a legal perspective, highlighting both the potential pitfalls to watch out for, and the many ways in which you can help make the whole process as smooth, quick and hassle-free as possible.
If you have a home loan, remember that some banks will charge an early settlement penalty unless you give them 90 days’ written notice.
Get your finances ready to cover all your selling costs, including:
Pretend you’re a house hunter seeing your property for the first time:
To speed up the transfer process when you do sell, and in case potential buyers ask to see them before offering, make a start now on putting these basics together:
Find out what compliance certificates you will need early so you have time to fix any issues:
You’ll need to sign a mandatory disclosure form in which you must list all defects or issues you know about, such as damp, leaks, structural issues, boundary disputes, unapproved alterations and the like.
Most importantly, when you do get an acceptable offer, don’t sign anything until we’ve checked it all out for you. The terms and conditions in the sale agreement (often titled “offer to purchase”) become binding as soon as you sign. There’s no going back and many a seller has regretted “signing blind”. Even “standard” clauses may come back to bite you because every sale’s different, and every seller has their own areas of risk.
It’s your right as seller to choose the conveyancer, so don’t let anyone convince you otherwise.
Remain in constant touch with your agent, with us, and with the buyer. Quick responses to requests for documents or signatures can save days or even weeks in the transfer timeline.
Selling a property doesn’t have to be stressful. Work through this checklist step by step and keep us constantly in the loop to avoid delays, disputes, and unwelcome surprises.
“Abuse of Process”
“Abuse of process” is the use of our court system to improperly delay, harass, or obstruct another party. Some examples: repeatedly litigating on the same matter without justification, launching meritless cases for ulterior motives, taking unnecessary legal steps purely to frustrate the other side, or dishonestly using a legal process merely as a tactic to block or delay lawful action by another party.
To deter such behaviour and keep our legal system fair and efficient, courts can impose punitive costs orders or even declare offenders “vexatious litigants”, thereby limiting their ability to launch further proceedings without court permission.
“If you suspect deceit, hit delete!” (Online cybersecurity slogan)
October is Cybersecurity Awareness Month, a good time to note that as cybercrime continues to grow, more and more businesses and individuals are falling victim to the dreaded “BEC” or “Business Email Compromise” fraud.
The million-dollar question: Who takes the hit?
Typically in a BEC fraud, email or other electronic communications between a creditor and debtor (often a seller and buyer, or service provider and client) are hacked by criminals, who con the debtor into paying what they owe into the fraudster’s bank account. By the time the parties realise they’ve been had, the criminals are long gone, and all that remains is the million-dollar (sometimes quite literally!) question: “Which one of us takes the hit?”
Until now we have been faced with conflicting High Court decisions on this point, but now the SCA (Supreme Court of Appeal) has settled it: The risk is the deb
tor’s.
A car dealership must pay twice over
It was a classic case of BEC: A dealership bought two Hyundai Nissan NP200 vehicles from another dealership for R145,000 each. The seller issued invoices showing its banking details. The buyer paid by EFT and sent proof of payment to the seller, which happily (without checking that the funds had actually landed in its account) delivered the vehicles to the buyer.
As always with these cases, one can imagine the sinking feeling that greeted the parties’ realisation that the seller’s emails and the attached invoices had been intercepted, and the banking details subtly altered. As a result, the buyer had paid the full R290,000 to the criminals’ bank account.
Long story short, a real seesaw of a legal battle ensued. The buyer said, “I’ve already paid you”. The seller retorted, “No you haven’t, you paid the criminals,” and sued the buyer for the R290k. The seller won in the Regional Court, lost on appeal to the High Court, but then turned the tables again and celebrated victory in a further appeal to the SCA.
Verify, verify, verify
The SCA’s findings amount to this:
Bottom line, the buyer in this case should have verified the banking details given in the emailed invoices before paying. It didn’t, so it couldn’t prove that it had paid into an account authorised by the seller.
It must pay the seller the R290k, with interest and doubtless substantial legal costs.
Don’t make the same mistake
These scams grow more sophisticated by the day, fuelled now by AI-perfected deep fakes, cloned websites and social engineering. Treat all emails, all electronic messages, and all electronic invoices with great suspicion — even if they appear to come from businesses you have known and trusted for decades. Verify bank account details (preferably by speaking to the creditor directly on a number you know to be correct) before paying a cent.
Property sales are particularly vulnerable
Be especially vigilant when buying or selling property because these high-value sales are a particular focus for cybercriminals worldwide. There are rich pickings in the offing, and the opportunities for baddies to intercept and falsify emails is multiplied by the range of trusted role players involved — typically several sets of attorneys, estate agents, and banks as well as the buyers and sellers themselves.
A final note on online security
Let’s end off with a note to everyone: Keep reminding your whole team (not just your accounts department) that securing your computer and email systems against bad-actor compromise is no longer a nice-to-have, it’s essential. This whole unhappy saga could all have been avoided if everyone involved had followed basic security protocols. Prevention is always better than cure.
Give us a call if you need any help.
“This [the Stalingrad Strategy] is a strategy of wearing down the plaintiff by tenaciously fighting anything the plaintiff presents by whatever means possible and appealing every ruling favourable to the plaintiff. Here, the defendant does not present a meritorious case. This tactic or strategy is named for the Russian city besieged by the Germans in World War II.” (Judges Matter website)
Divorce disputes are of course intensely personal and emotionally charged affairs — and when feelings run high the resultant fallout can mean protracted, bitter, and costly litigation.
If you are being subjected to a barrage of such litigation, take heart. In balancing our constitutional right to access the courts against the need to prevent people from abusing court processes with endless and meritless litigation, our law provides for “vexatious litigants” to be stopped dead in their tracks.
A recent pair of High Court decisions (featuring the same parties and the same divorce dispute, but in two different battles) provides a textbook example.
A saga of litigation, complaints, threats, and blackmail
This 11-year saga dates from the start of divorce proceedings in 2014, with the financial aspects of the divorce being finalised only in 2020. The ex-wife was awarded a total of R16.8m in accrual, maintenance, and costs. The ex-husband’s property-owning trust was held to be his alter ego, and that opened the door for the house held by the trust (a valuable property in an upmarket Cape Town golf estate) to be sold as his asset.
He responded with a concerted campaign of unrelenting litigation, complaints, and threats — all aimed, the Courts have now determined, at overturning the divorce order.
The list of his serial litigation and intimidation tactics is both long and extraordinary, but suffice it to say that a flood of applications of all sorts to a wide variety of courts (all the way up to the Constitutional Court) is just the tip of the iceberg. He has also lodged professional complaints against all the attorneys and advocates involved in this matter (including his own legal team) and against the Divorce Court Judge. Not even his own financial expert escaped a formal complaint. Allegations of perjury, fraud and collusion abound. He has threatened massive lawsuits (for R210m and R190m to date) against various legal representatives. He was even found to have resorted to blackmail.
Neither his singular failure to reap anything but defeat from any of these endeavours (barring a few minor skirmish successes, and noting that some of the more recent matters remain pending), nor the slew of costs orders made against him (at least one of them on the punitive attorney and client scale), seem to have deterred him in the slightest.
His latest rearguard action, a failed attempt to postpone the auction sale of his house, has earned him yet another defeat and another costs order, with the cherry on top being his being declared a “vexatious litigant”. He can now no longer launch legal proceedings without specific High Court authority to do so.
All’s fair in love and lawfare? Not so fast
As the Court put it: “A fundamental doctrine in our law is, there must be an end to litigation … nobody should be permitted to harass another with second litigation on the same subject as such litigation can be viewed as an abuse of process.” Our courts accordingly have the power to declare such a person a “vexatious litigant”, thus restricting them from launching any new legal proceedings without specific court authority.
To have your opponent declared vexatious, you will need to prove that the person “has persistently and without any reasonable ground instituted legal proceedings in any court or in any inferior court, whether against the same person or against different persons.” There are two legs to that, and note that you can’t stop anyone from pursuing normal appeal and review processes — there must be some abuse of judicial process.
You may also be able to get an order that your opponent provide security for your costs. Although, in this particular matter, the ex-wife was unable to convince the Court to grant her such an order.