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Snippet 15-2025

by | Oct 20, 2025 | Uncategorized | 0 comments

Practice

News

  • Lawyers misbehaving:
    • Our former Public Protector, Adv. Mkhwebane is to stand trial for perjury in February.
    • A report, out this morning and, on the face of it, true, is a Facebook note on the outgoing frontrunner of the R NPA, Batohi, having described her term as a horror movie and naming her work there as The New Dawn of the Dead. If remotely correct, this underscores the dismal state of our prosecuting authority. I suspect that the difficulty in the NPA, having been packed with ‘correct’ appointments, occurs in many of our (semi- and) state institutions, and reminds me, whilst I am in the throes of looking back, of a note stuck on the door of an examiner, which read: ‘How can I soar like an eagle when I work with turkeys?’
    • The so-called Stalingrad tactics, employed by Nummawan, and, may I say this, aided and abetted by his lawyers, may well come to an end – if this gentleman does not appeal! The NPA will seek a court ruling to force Nummawan to abandon the challenges to his now 18-year old pending corruption trial. Incidentally, is all fair in love and war, i.e. Should one employ Stalingrad tactics? Perhaps not: https://blog.jjsinc.co.za/2025/09/25/divorce-lawfare-the-serial-litigant-and-his-stalingrad-strategy/

Whilst on the topic of Nummawan, his R28.9k legal bill is still outstanding and Mz Zille has called for his pension to be attached to pay this. In fact, this gentleman cannot be impecunious as he must have eye-watering legal bills, which he must have serviced (or had serviced) in some way, otherwise the Stalingrad tactics would never have succeeded.

  • And, speaking of lawyers of sorts, the RAF:
    • An overhaul of the RAF, in an attempt to reduce a decades-old backlog, together with a new bill which will alter the fund’s financial model, is on the cards.
    • Whatever, it was reported that the Fund’s board is speeding up the payment of outstanding claims. Amen!
    • The security arrangements for the Fund’s now suspended CEO, cost the RAF R1.8m a year. It is now alleged that the board was bypassed in this decision. That this gentleman managed to stay at the head of that organisation until now, is truly remarkable (or, given the state of our political leadership, possibly unsurprising).
    • But wait, there’s more! The Scopa investigation revealed systemic breaches of fiduciary duties, procurement irregularities, and so on, to the tune of billions of rand. In fact, that entity is alleged to have held millions of Rand in unspecified and un-authorised investment accounts whilst delaying payments to car accident victims.
    • The Fidelity Guarantee Fund has received 116 claims against the now defunct Chueu Attorneys, valued at R82.7m. What bothers me is that I don’t read of goal-time being meted out to the perpetrators.
  • LPC news:
    • The LPC has published professional entry exam dates for next year: what interested me, was that the notarial examination is sandwiched between the two papers of the conveyancing exam, which first and last dates are within a week of each other. It also published the curricula for these.
    • The Chief Justice has issued norms and standards for the performance of judicial functions which are available from the LPC. Ask me for a copy.
    • Yawn – robing in the lower courts is up for discussion – again!
    • The JSC has been criticised by Judgesmatter, on the issue of Concourt appointments, saying “The fact that such a simple process can take so long, speaks to systemic weaknesses that need to be urgently addressed”.
    • Reading the note on those interviewed for positions in the KZN High Court, it appears that one candidate had debt issues, another had been suspended by the Council five years ago, and so on. Hardly inspiring track records for those potentially destined to lead.
  • SARS has been criticised by our Tax Ombud for offering victims of e-Filing hijacking, “limited support”. When I was a young attorney Mrs Pazzard, my employer Mr H Nel, of Jones on Conveyancing fame’s secretary, and a particularly crusty boss-girl, would come to me and say ‘Mr. Steenkamp, your secretary is not wearing any support!’ Same problem; hung out to dry.
  • The Prez has lost a bid to halt a R168m damages case brought by families of freedom fighters who were murdered during the apartheid era, accusing the government of delaying prosecutions. Ironic that the accuser has become the accused, isn’t it?
  • And the cause of the above unpleasantness is reflected in the latest spat between the NPA and the Hawks over the Free State premier’s delayed corruption case. One or both of these institutions are not doing its work – nothing new.
  • Busa has joined the court challenge against the BEE regulations for companies employing more than 50 people. On a similar note Sakeliga has launched a court case to reverse BEE in respect of international air services, operating in South Africa. One might have sympathy, but does this really fall into the applicant’s involvement in South African affairs?
  • The parental leave decision by our Concourt (the state was given 36 months to allow Parliament to amend the BCEA and UIF act, to remove the discrimination between parents as to leave lengths and UIF benefits) will cause a shake-up which will affect all businesses: https://businesstech.co.za/news/business/839056/what-employers-need-to-know-about-south-africas-new-parental-leave-laws/ , and

https://bowmanslaw.com/insights/south-africa-constitutional-court-reshapes-parental-leave-legal-landscape-what-employers-and-employees-should-know/

  • To what extent is a board liable for bad decisions?
    • Our Johannesburg High Court has ordered three former SABC board members to repay R11.5m which was paid to former SABC CEO Motsoeneng as a ‘success fee’; following on their unlawful decision.
    • An article in the De Rebus on the holding directors responsible for the reduction in share value is worth looking at: https://www.derebus.org.za/can-shareholders-hold-directors-responsible-for-a-reduction-in-their-share-value/
  • One has to love our politicians: Mr Malema boasts of his guilty verdict as a ‘badge of honour’ but, paradoxically, appealed against it! Frankly, if this gentleman gets jail time, I should be surprised but overjoyed!
  • Personal liability for reckless trading, under section 64 of the CC act, is not a debt and does therefore not prescribe: https://stbb.co.za/pulse-assessing-section-64-liability-the-sca-dismisses-prescription-defence-in-trust-fraud-dispute/
  • Several reports on Buy Now, Pay Later practices, have highlighted that such credit practices fall into a regulatory grey area and needs to be addressed.
  • Marital status: two relatively recent judgements have impacted severely on what parties might have assumed, on previously correct legal advice, to be their financial status within a marriage. In the first place, a judgement that offenders should not be sacrificed on the altar of rigid contracts (courts being able to override financial arrangements made in matrimonial contracts) and an older judgement, declaring all customary marriages to be in community of property. Objectively, such decisions are fair but imagine, especially the situation of a black man who had imagined his property to be his alone, to find that he is now married in community of property! West published one case on the latter judgement, which is not yet available on Saflli i.e. Sithole in which the Concourt approved of the judgement that section 21 (2) (a) of the Matrimonial Property Act is unconstitutional.
  • Spoliation; well-known to most of us but possibly worth a re-look: https://chrisfick.co.za/what-is-spoliation/
  • A note on the ex-Prasa boss’ tax affairs, I found quite unsettling: SARS threatened to disclose the tax information of Mr Montano unless he withdraws fraud allegations made against that service. I have not checked and will not, but my lifelong understanding of SARS’ position, is that the tax information of an individual is confidential. This was upheld when information regarding Nummawan was asked from that entity and, one would assume that what was good for the goose would be good for the gander?
  • A new Business Licensing Bill will be presented soon – good, if this is applied to all, especially informal, traders serving the public, we would, presumably (and if, of course, those tasked with the job of enforcement actually do the work) not have many of the scandals we have had recently.
  • Whilst on SARS: that entity has instituted a R4.8bn lawsuit against Sasfin – will a bank be held liable for its customers’ tax misconduct, of which the bank knows?
  • Chief Justice Zondo found that Gwede Mantashe received free-of-charge security upgrades from Bosasa. Mr Mantashe wished to sue Zondo but failed to obtain the permission of the SCA to sue and the Concourt threw out his application on this basis. Lawyers!
  • A ruling by the Pension Funds Adjudicator was reported on, on Thursday: in essence, a wife, technically a legal dependent, who does not prove financial dependency after her husband’s death, does not need to be benefited by a pension fund.

Harder news

  • Force majeure in agri-contracts: https://www.webberwentzel.com/News/Pages/supply-chain-disruptions-tailoring-the-force-majeure-clause-to-agricultural-realities.aspx
  • What is required to declare a director delinquent, in terms of section 162 of the Companies Act? www.cliffedekkerhofmeyr.com/export/sites/cdh/news/publications/2025/Sectors/Corporate-Debt/Downloads/Combined-Corporate-Debt-Turnaround-Restructuring-and-Corporate-Commercial-Alert-8-October-2025.pdf
  • CDH has been quite busy:
    • May you terminate a fixed-term contract? https://www.cliffedekkerhofmeyr.com/news/publications/2025/Practice/Employment-Law/Employment-law-alert-22-Sept-Fixed-term-contracts-Is-early-termination-on-notice-lawful
    • A director has a fiduciary duty to the company, served by him, to disclose personal financial interests in terms of section 75 of the Companies Act – what are these? www.cliffedekkerhofmeyr.com/export/sites/cdh/news/publications/2025/Practice/Corporate-Commercial/Downloads/Corporate-Commercial-Alert-10-September-2025.pdf
    • Employee share ownership in companies: www.cliffedekkerhofmeyr.com/export/sites/cdh/news/publications/2025/Practice/Corporate-Commercial/Downloads/Combined-Corporate-Commercial-and-Tax-Exchange-Control-Alert-10-September-2025.pdf
    • ‘On road fees’ charged by motor vehicle finance companies: www.cliffedekkerhofmeyr.com/export/sites/cdh/news/publications/2025/Practice/Corporate-Commercial/Downloads/Corporate-Commercial-Alert-15-October-2025.pdf
    • What to do when an employee does not arrive for his disciplinary enquiry and provides a sick note: www.cliffedekkerhofmeyr.com/export/sites/cdh/news/publications/2025/Practice/Employment-Law/Downloads/Employment-Law-Alert-13-October-2025.pdf
    • This note is worth noting as it has a dramatic effect on how trustees take decisions: www.cliffedekkerhofmeyr.com/export/sites/cdh/news/publications/2025/Practice/Banking-Finance-Projects/Downloads/Banking-Finance-Projects-Alert-16-October-2025.pdf
  • Departure from prescribed procedure in tenders: https://bowmanslaw.com/insights/south-africa-durban-high-court-affirms-important-tender-principle/

From the horse’s mouth:

  • Prescription runs only from the date when a suspensive condition in a contract has been fulfilled: www.saflii.org/za/cases/ZASCA/2025/133.pdf
  • There is a positive duty on the police to act if they have knowledge of wrongs being perpetrated, and failure to do so will render the SAPS liable for damages: www.saflii.org/za/cases/ZAKZDHC/2025/59.pdf
  • Attorney bank accounts, relating to an investment practice in terms of Rule 55, are not trust accounts and do not require audit: www.saflii.org/za/cases/ZASCA/2025/140.pdf
  • A note from the CIPC was made available by West on the information required for the re-reinstatement of the registered company. Ask me for a copy.

Conveyancing

  • What must be lodged in order to prove a customary marriage? https://www.ensafrica.com/news/detail/10757/validation-of-customary-law-marriage-requires See also www.saflii.org/za/cases/ZASCA/2025/131.pdf
  • An old and well-established rule of property practice is derived from the Alienation Of Land Act which holds that any deed of alienation should be in writing.

In F v T SCA 339/2024 (www.saflii.org/za/cases/ZASCA/2025/139.pdf) the SCA declined enforcing an oral contract for the transfer of land. Yet, at the time of writing, I received a copy of a Pretoria High Court judgement, in which such a contract was upheld (Dlomo v de Klerk, Gauteng, Pretoria Case 2023 – 07800); the judge ruled that the prohibition of transfer of residential property in terms of an oral agreement, was inconsistent with the Constitution and invalid. The order declared that section 2(1) of the Alienation Of Land Act be replaced with the following words: “The alienation of land after the commencement of this section, shall include a deed of alienation signed by the parties or by the agents acting on the written authority. The verbal or agreement for the transfer of residential property shall be binding and enforceable.” As is required, this judgement will be subject to the approval of the Concourt.

Speaking for myself – I cannot see the Concourt upholding this judgement as there are very sound historical reasons for requiring writing in contracts for land.

  • The Community Schemes Ombud Service Act does not require an aggrieved party to first exhaust the provisions of that act before approaching a (high) court: https://www.ensafrica.com/news/detail/10829/homeowners-associations-selecting-the-appropr
  • I confess to having lost patience with eDRS: deadlines have been missed but, those interested, would be happy to know that everyone is working hard at it.

Property

Trends

  • Good news: our housing market is steadily recovering, with national house price inflation rising to 4.2% in August – above inflation!

Interestingly, the price-band above R3m posted the strongest growth at 5.5% – possibly because this price range had stood still for some time.

  • Reits have profited dramatically, probably more as a result of a depressed market than actual growth, delivering close to a 30% total return, ‘well beyond that of the ALSI’.

Both Equites and Attaq reported greater interest in their shares. Growthpoint reported increasing retail and office-space sales.

  • Remarkably Limpopo has seen the most economic growth (at 0.9% – hardly shooting the lights out) whilst Gauteng still remains the largest contributor to our economy. As usual, the Western Cape and coastal regions’ property prices in that province. still perform best.
  • Confirming this sentiment, is a report by the Daily Investor that, of a recent luxury redevelopment in Cape Town, half of 62 apartments was sold within a month of opening.
  • What has resulted from the slump in property prices, is a move away from deteriorating nodes (think dysfunctional municipalities) by both investment companies and individuals.
  • The somewhat overblown semigration claims, are mitigating but continues – this trend is said to benefit smaller town and rural regions, amongst others, Underberg.
  • The fact is that virtually only the Western Cape and Midvaal municipalities, are in any kind of shape. Of these, the West Coast District, closely followed by Saldana Bay and Swartland municipalities, have been named the country-wide best-run municipalities last year.

News

  • The recent “expropriation” of land at nil compensation by the Ekurhuleni Metro (a 34-hectare plot of land in Driefontein) has raised eyebrows and will, no doubt, not come to rest soon.
  • Paddocks published an article on how generative AI will affect community scheme management. Interesting, but I would reserve applying this this for the future.
  • Inner-city economic stagnation affects virtually every city in South Africa – except Cape Town. Daily Friend published a note on how to blow life into such areas, following the Cape Town example: the suggestion is that one needs to create walkable urban precincts i.e. mixed-use areas developed hand-in-hand with the private sector.
  • I have mentioned the Bankenveld District City development in Johannesburg before but, its sheer size and cost will make this development, between Sandton and Waterfall, something to look forward to.
  • Estate agents might wish to take a look at this site – a site that lists property rentals for free and sales for R299 for six months; Comment? https://tabalot.com/
  • A note by Seeff attracted my attention – he said that it is becoming ever-harder for young people to buy property. The result, so he says, is densification (see my comments above) and a migration to outlying cheaper areas.
  • And, finally, going for a snip, is the renowned Barrydale emporium, Ronnies S3x Shop: https://www.netwerk24.com/nuus/aktueel/n-dik-rol-note-en-plaas-met-ronnies-sex-shop-is-joune-20251014-1063. I came..and saw, and ate there; interesting!

Legal news

  • The increasing densification of residential land has led to more residential properties being effectively cut off from direct access to the nearest public road. Such access is generally given by way of a “panhandle” which could be either part of the subdivided property or a servitude over the remainder of the property. A short note on how to deal with these may be of interest: https://chrisfick.co.za/panhandle-access-to-properties-the-mistakes-to-avoid/
  • STBB published a note, reminding us that the owners of buildings are used for commercial purposes, needed to comply with energy performance certification by 7 December.
  • A note in the Citizen, dealing with “stolen” state land drew my attention – the fact is that such land will always be recovered as one cannot hide the deeds paperwork that led to the fraudulent transaction being registered. However, the culprit, as in the case dealt with by me, will, by then, have escaped with the money in hand.
  • Airbnb-type letting often causes unpleasantness within communal schemes as the in-out tenants flood communal areas, do not necessarily behave themselves and so on. On the one hand, the scheme management could, if the rules are followed, prohibit such letting; on the other, such prohibition impinges on the right of an owner to do with his property, what he wants (obviously within certain limits). This issue is discussed – in Afrikaans – on the following link: https://open.spotify.com/episode/6XE8IxkWQaERtqHr8NwUUf
  • The following note, on rule changes for estates and complexes, may be useful for complex managers: https://dailyinvestor.com/property/105956/major-rule-changes-for-estates-and-complexes-in-south-africa/

Comment

  • BEE has come in for a lot of criticism of late – primarily owing to the cost thereof and constraint on capacity imposed upon businesses. The latest, born of desperation?.. is buying BEE credits. Theobald commented that, if such a tax replaces the ownership requirement of BEE, it would surely be a bargain. The difficulty, of course, as raised by him, is that imposing a tax and having a good outcome from that are two different things – the latter, under haphazard and corrupt government supervision, has been a bitter experience.
  • Reports are that Karoo fracking will be proceeded with. This, despite the environmental risks, must be applauded. Similarly the oil reserves on our West Coast should be explored, as the positive impact of extracting oil upon our economy, can hardly be overstated.
  • Any industry/business, which appears to generate easy money, attracts interlopers. The property industry has them aplenty. The latest that hove into view is a bunch calling themselves Law For All (https://www.lawforall.co.za/about-us/). They solicit property transactions and promise the parties a fee reduction. They then approach a conveyancer and suggest that they would give him the transaction at the 50% fee reduction. Looking at its website, promises abound; making law more human, innovating justice through strategic corporate partnerships and so on. I did not bother asking what the fee would be for the service but I have no doubt that it’s promises would not be free. ☹

Lighten up:

  • My Airbnb house rules are simple: 1. Don’t throw a party. 2. No pets. 3. Do all the chores. 4. There is no rule 4. Now, for the $300 cleaning fee….