REJ - 2021

All the frill’s don’t make it a marriage – 10 September 2021

Botha v Steyn (13326/2014) [2021] ZAKZDHC 23 (2 August 2021)
A and B, both South African citizens, got married in a splendid ceremony hosted at a hotel in London, or so A thought. The ceremony could not constitute a valid marriage because the UK marriage laws were not complied with, a fact that the evidence suggests they were both aware of at the time…

Big Brother’s (unrestrained) watch has ended – 28 May 2021

In February 2021 the Constitutional Court handed down a Judgement that made notorious whistle-blower Edward Snowden tweet: “wow”.
Privacy and the protection thereof has become an increasingly hot topic of late, with the spotlight shining on the practices of social media giants, governments, and the like…

Body corporate cannot sit back after sequestrating defaulters – 28 May 2021

FirstRand Bank Limited v Master of the High Court (Pretoria) and Others (1120/19) [2021] ZASCA 33 (7 April 2021)
When an insolvent company or individual’s assets are sold to pay its debts, and it becomes apparent that the value of the assets is not enough to settle the administration costs of the insolvent estate, thus creating a shortfall in the estate, the creditors of that insolvent estate who proved claims against the estate will be held liable to contribute to the administration costs of the estate, pro rata according to the value of their claims…

BUILDING PLANS ARE MORE THAN JUST PAPERWORK – 21 January 2021

Camps Bay & Clifton Ratepayers Association and Others v Al Khalifa Family Trust and Another (11256/2019) [2020] ZAWCHC 181 (15 December 2020)

In this matter, a homeowner not only deviated from its approved building plans and subsequent rider plans, but also continued building before the outcome of departure applications (which were never granted)

Cancelling a lease: The devil is in the detail, every time – 23 September 2021

Acire Property Holdings (Pty) Ltd v Banzi Trade 31 (Pty) Ltd t/a Brick-It (7889/2021) [2021] ZAGPPHC 542 (25 August 2021)
To the naked eye, the following would probably appear to constitute a proper cancellation of a month-to month lease: “ … hereby give you notice of termination of the lease agreement with immediate effect…

Caravan Homes on Agricultural land: Important prerequisites – 20 July 2021

Leppan N.O and Others v King (2471/2020) [2021] ZAECGHC 67 (20 July 2021)

Many people feel a little envious of others’ semi-permanent caravan homes, situated on a far-off piece of farmland away from city life, in respect of which they have somehow managed to secure a long term entitlement to use…

COMPANY DEREGISTERED: WHO GETS THE OWNERLESS PROPERTY? – 19 February 2021

Matjhabeng Local Municipality v McDonald and Others (4075/2020; 4077/2020; 4078/2020) [2021] ZAFSHC 34 (19 February 2021)
Deregistration of companies failing to comply with statutory requirements has become the order of the day, and the consequences of bona vacantia (ownerless property devolving to the State) is real…

Courts will hold you to a promise to pay – 26 August 2021

The parties in this judgment used to be married. After their divorce in 2002, they kept close ties, Mrs J allowing her ex husband to use money owing to her in terms of the divorce (upon the sale of their joint properties), to purchase a new property…

DESPERATE TIMES, DESPERATE MEASURES FAIL – 8 February 2021

Motsima and Another v Kopa and Others (2122/2019) [2021] ZAFSHC 21 (8 February 2021)
A cash-strapped homeowner, fearing the bank will repossess his property, searched on Google for assistance. He found the assistance by way of the offer of a sale of his property and then a re-purchase thereof, within a certain period. ..

Digital signatures – Latest case law concerning sale of land – 15 June 2021

Never before in our country’s history, have we seen a concerted effort in the property industry as we did, during levels 5 and 4 of lockdown, for estate agents; attorneys; sellers and purchasers to find “alternative methods” to sign sale agreements for land, when they had no access to printers and could not meet face to face as we are all accustomed to…

Financially struggling unit owner: May trustees agree on settlement amount? – 22 October 2021

Zikalala v Body Corporate of Selma Court and Another (AR255/2020) [2021] ZAKZPHC 81 (23 September 2021)
This judgment is very important for trustees and managing agents. It explains why trustees and managing agents, whether or not out of goodwill, will fall foul of their statutory responsibilities if they accept, without more, a settlement amount from an owner who is unable to pay the full outstanding levy debt…

Forum shopping in sectional title disputes: Court or CSOS? – 5 August 2021

Heathrow Property Holdings No 33 CC and Others v Manhattan Place Body Corporate and Others (7235/2017) [2021] ZAWCHC 109 (1 June 2021)

The judgment deals with disgruntled sectional title owners who sought to resolve a dispute regarding a management rule of the scheme, in court. The court emphasised that there are significant differences between its jurisdiction and powers and those of the Community Schemes Ombud…

Guarantee as required by local authority really means only that – 13 August 2021

Tramore Property Group (Pty) Ltd v Vosloorus Square CC (235/2020) [2021] ZASCA 41 (13 April 2021)
This judgment teaches a valuable lesson. The seller of land to be developed cancelled the agreement due to the alleged non-compliance by the purchaser with the requirement to provide a guarantee relating to internal services and bulk provisions to the development…

Hard lockdown and commercial tenant-landlord obligations – 10 September 2021

Freestone Property Investment (Pty) Ltd vs Remake Consultants CC and Another (2020/29927) [2021] ZAGPJHC 150 (25 August 2021)
Hard lockdown hit commercial tenants and their landlords without discriminating between the two. The court here was asked to find that a commercial landlord’s cancellation of the lease was unlawful, the tenant arguing that due to the supervening impossibility caused by lockdown, it could not be obliged to pay rentals…

Illegal use of property: Bite the bullet and pay the penalties – 29 October 2021

City of Johannesburg Metropolitan Municipality v Zibi and Another (234/2020) [2021] ZASCA 97; [2021] 3 All SA 667 (SCA) (9 July 2021)
The property owners in this matter rented out rooms in their home to students and young professionals, rendering the property a “commune” for purposes of the relevant municipal zoning. They did not bother to comply with the zoning provisions and apply for permission or stop the letting business…

Offering alternative housing in hard cases not necessarily enough to get the eviction order – 22 July 2021

Grobler v Phillips and Others (446/2020) [2021] ZASCA 100 (14 July 2021)

The judgment highlights many aspects that commonly arise in eviction orders. Specifically of interest here was the court’s finding that although the owner offered alternative secure housing to the occupier, who was 84 years old and had lived on the property since she was 11, an eviction order would not be just and equitable in these circumstances, even though she was an unlawful occupier (as this term is defined in the PIE Act)…

Property Law Update | Transfer and Bond Void: Chilling Thoughts – 2July 2021

K2013046547/07 (South Africa) (Pty) Ltd and Others v Hyde Construction CC and Another (513/2020) [2021] ZASCA 82 (17 June 2021)

To protect creditors, our law has very strict rules for such instances and, in a property trader context, may result in a declaration that a property sale and resulting registration of transfer and new bond, be declared void…

Purchaser’s spouse gets the bond: Does the sale agreement stand? – 5 August 2021

Makepeace v San Lameer Villa 3212 CC and Others (52533/2020) [2021] ZAGPJHC 23 (5 March 2021)
It is in the nature of a marriage relationship that the spouses’ affairs become intertwined to some extent. Here, the husband successfully bought a property at an auction but later, when the bond approval was negotiated by his wife and granted to her in principle, the question arose who was the purchaser…

Relying on an agreement with a previous land owner to drive over a property – 23 September 2021

Legemaat N.O and Others v Arplorox (Pty) Ltd and Others (60278/2019) [2021] ZAGPPHC 569 (30 August 2021)
In an almost wild disregard for a farm owner’s rights, the mining company in this matter used a dirt road on a farm to stockpile and transport coal to a siding, knowingly without consent from the owner. The owner’s efforts to manage the dispute came to nil and it was ultimately forced to apply to court…

Remission of rent due to Covid: Remedy available for sub-tenant? – 19 November 2021

Trustees for the time being of the Bymyam Trust v Butcher Shop and Grill CC (11877/2020) [2021] ZAWCHC 240 (19 November 2021)
In our law, in specific instances, a tenant may claim remission of rental, in whole or in part, due to vis maior. However, would the lessee’s claim for a remission succeed where it has sub-let the leased premises?…

Sale subject to ‘obtaining funds from’ an inheritance – 22 October 2021

Patrinos (N.O) v Theresa (883/2021) [2021] ZAFSHC 226 (17 September 2021)
In property sale transactions that do not follow the usual pattern – facilitated by an estate agent with funding obtained from a bank – it is important for sellers and buyers to pay very special attention to details. In this matter, the parties included a suspensive condition rendering the sale subject to the purchaser “obtaining funds” from a deceased estate…

Sectional Schemes: When old and new rules clash – 1 June 2021

Royal Palm Body Corporate v Vahlati Investments (Pty) Ltd and Another (7214/2020P) [2021] ZAKZPHC 28 (1 June 2021)

When the Sectional Title Schemes Management Act came into force in 2016, it changed large parts of the existing Sectional Titles Act. It brought with it, amongst other things, new sets of rules that apply to schemes…

SELLING THAT WHICH YOU DO NOT YET HAVE – 19 March 2021

Tomlinson and Another v Tomlinson N.O and Others (11764/2015) [2021] ZAKZDHC 8 (19 March 2021)
If A sells B’s property to C, the resultant legal position is that A is obliged to make B’s property available to C. He will therefore attempt to obtain it…

SIGNING THE SALE AS EXECUTOR: WATCH OUT – 9 December 2021

Bluegrass Trading 1112 CC t/a Rawson Properties v Ramsern and Another (39592/2019) [2021] ZAGPJHC 753 (30 November 2021)

Married persons often appoint their spouses as executors in their deceased estates. When acting in that capacity, the executor must be careful to note this capacity when signing agreements relating to the spouse’s assets…

THE TRUSTEES ARE NOT DOING THEIR JOB – 6 February 2021

Haitas v Froneman and Others (1158/2019) [2021] ZASCA 1 (6 February 2021)
Our courts are often called upon to adjudicate in matters relating to a trust’s management. The present judgment is another, dealing with a request by the sole beneficiary for removal of trustees because they are not ’doing their job’…

THE TRUSTEES ARE NOT DOING THEIR JOB – 6 February 2021

Haitas v Froneman and Others (1158/2019) [2021] ZASCA 1 (6 February 2021)
Our courts are often called upon to adjudicate in matters relating to a trust’s management. The present judgment is another, dealing with a request by the sole beneficiary for removal of trustees because they are not ’doing their job’…

THREE SHADES OF SPOLIATION – 11 February 2021

Wilrus Trading CC and Another v Dey Street Properties (Pty) Ltd and Others (1750/2021) [2021] ZAGPPHC 42 (9 February 2021)

Spoliation is sometimes perceived as an odd remedy: how can the fact of possession of, for example, premises or access to electricity, be ‘protected’ by the law despite the fact that the person in possession is ‘in the wrong’?…