REJ - 2020

AN ESCAPE FROM CONTRACTUAL OBLIGATIONS BECAUSE THEY ARE UNFAIR? – BEADICA 231 CC AND OTHERS V TRUSTEES FOR THE TIME BEING OF THE OREGON TRUST AND OTHERS (CCT109 /19) [2020] ZACC 13 (17 JUNE) – 10 July 2020

In recent times, there has been increasing debate and court judgment dealing with the question whether an agreement between two reasonable business persons is at risk of being invalidated by invoking unreasonableness, unfairness and public policy considerations, viewed against the background of legal certainty and pacta sunt servanda (the principle that contracts freely entered into between parties must be honoured and, if necessary, enforced by the courts)…

ANOTHER DEMOLITION OF ENCROACHING BUILDING ORDERED – 16 January 2020

We have often before reported on case law where owners were ordered to demolish buildings built without municipal approval. This matter deals with a related scenario where demolition is sought of an encroaching building that was built without municipal building plan approval…

CAN A MORTGAGE BOND EMBODY A SALE? – 19 November 2020

Elmo-York N.O v Van Dyk and Another (67219/2019) [2020] ZAGPPHC 570 (22 September 2020)
In this matter the court was asked to declare that a mortgage bond document, in addition to constituting the security for a loan, also embodies a sale agreement…

CONSENT TO SUBDIVIDE AGRICULTURAL LAND: NO EASY HURDLE – 4 March 2020

Many agricultural land owners know of the limitations imposed on development of their land by virtue of the Subdivision of Agricultural Land Act. This judgment illustrates the difficulties such owners face and highlights what facts must be shown to appeal the Minister’s refusal of an application to subdivide…

Funds transferred to wrong account – can you keep it? – 18 May 2020

In the case of NISSAN SOUTH AFRICA (PTY) LTD v MARNITZ NO AND OTHERS (STAND 186 AEROPORT (PTY) LTD INTERVENING) 2005 (1) SA 441 (SCA), an amount of R12,767,468.22 was paid into the wrong bank account due a clerical error by the bank, making this dream come true for Maple Freight CC (“Maple”)…

I AM ACTING FOR OUR FAMILY TRUST: WARNING BELLS – 16 April 2020

What powers do you have to defend and raise actions in a court as trustee of a family trust, or of any other trust? Trustees should be mindful to follow the trust deed in all regards; and where the deed is silent on this aspect, trustees must act in unison…

MUSLIM MARRIAGES: NOW AND THE YEAR 2022 – 18 December 2020

President of the RSA and Another v Womens Legal Centre Trust and Others; Minister of Justice and Constitutional Development v Faro and Others; and Minister of Justice and Constitutional Development v Esau and Others (612/19) [2020] ZASCA 177 (18 December 2020)

In an important judgment handed down by the Supreme Court of Appeal in December 2020, it was acknowledged that our law’s treatment of the religious marriages concluded in terms of Shariah law has many negative consequences for spouses and children in those marriages

ONE MESSY TRIO: SELLER’S SARS WOES; DOUBLE SALE; 1ST PURCHASER REFUSING TO VACATE – 23 April 2020

Narainsamy and Others v Nel and Another (15281/2014) [2020] ZAKZPHC 5 (28 February 2020)
Living in an upmarket unit in central Cape Town almost for free for approximately six years due to the seller’s inability to procure SARS clearance for the transfer, this judgment deals with the purchaser’s resistance to an eviction when the property was subsequently sold and transferred to a third party…

ORAL MANDATES VALID BUT RISKY – 29 May 2020

The protracted skirmishes between a seller and estate agent evidenced in this judgment illustrate the difficulties that
arise when a mandate is not reduced to writing, confirmed via email or text message, or recorded in any other way.
Pather v Wakefields Real Estate (Pty) Limited (AR82/2016) [2020] ZAKZPHC 16 (29 May 2020)…

PURCHASER’S REMEDY WHERE PARKING BAY NOT CEDED ON TRANSFER OF UNIT – 25 June 2020

It happens from time to time that, due to oversight, a formal cession of an exclusive use area does not accompany the registration of transfer of ownership of the unit to the new purchaser. The Sectional Titles Act states that in such an instance the exclusive use area “vests” in the body corporate. Is the purchaser who paid the purchase price and transfer duty on the acquisition of both without a simple remedy?
LE ROUX V DUNROBIN BODY CORPORATE AND OTHERS (10268/2019)[2020] ZAWCHC 53 (9 JUNE 2020)…

SOMETIMES PRUDENT TO AWAKEN SLEEPING DOGS – 17 July 2020

SONTSELE V 140 MAIN STREET PROPERTIES CC AND ANOTHER (328/2019) [2020] ZASCA 85 (6 JULY 2020) A 10 year lease agreement included an option to renew, subject to agreement regarding adjusted rental. At the end of the initial lease period and after indicating that it wanted to exercise the option to renew the lease, the tenant stayed on in the premises for a further 12 months, increasing the rental payment by its own doing in accordance with what it estimated was a market-related adjustment…

THE LATERAL SUPPORT REQUIREMENT: A RECENT WIN – 2 June 2020

Your neighbour’s building activities, conducted in terms of approved plans, causes subsidence on your property and damage to your home. Is there a legal duty on landowners to provide lateral support in built-up urban areas? Must negligence be proved? In the matter: Petropulos & Another v Dias (Case no 1055/2018) [2020] ZASCA 53 (21 May 2020)…

WARNING BELLS FOR HOME BUILDERS AND THEIR CLIENTS – 12 November 2020

Rabe Bouers CC v Chaya (2328/2015) [2020] ZALMPPHC 83 (30 October 2020)
The Housing Consumers Protection Measures Act has a double-edged sword. If the home builder is not registered with the NHBRC, has not paid the fees and enrolled the homes that he’s building for a housing consumer(his client), then the builder may not demand payment from him…

WE WERE IN A PARTNERSHIP, DID YOU NOT KNOW THIS? – 25 February 2020

This judgment deals with a dispute between two persons regarding their shares in wealth generated whilst they cohabited over a period of 22 years. It highlights the very difficult position for such partners to have to search back in their personal and joint histories to be able to convince a court, so many years later, that they created a partnership and agreed on a shareholding, not in words but in deeds done (tacitly)…

YOUR AGREEMENT v YOUR INTENTIONS AT THE TIME – 25 March 2020

It happens so often that parties conclude a written agreement, stating that the content thereof embodies the full extent of their obligations, and then afterwards, when problems arise, they seek to introduce details that they thought were common cause…