Legislative Guidelines

Conveyancers are keen investigators, they are specialists in their field as they exercise knowledge and skill in all of the transactions. Although every transaction might be different, the principles remain the same.

This article discusses the voetstoots clause. Be careful of what you litigate for and against whom, for you might not always get what you ask for. Do not act in the heat of the moment, without the proper consideration of all the facts. Do your homework and choose your attorneys carefully to apply their minds and the law. This case is a classic example of the consequences of the wrong legal advice and strategy.

Under South African Law, the rights of the landlord/lessor to receive rent from their tenants is adequately protected. If the landlord fulfils his duties according to the lease agreement, there is no reason why a tenant should not pay their rent.

South Africa is a relatively water-scarce country. The regulation and implementation of water use is therefore very important.

November 2021, January 2022, September 2022, and November 2022 were pivotal months for many homeowners in South Africa who were forced to revaluate their financial positions with the interest rate increases.

When does the reporting obligation arise for an accountable or reporting institution?

The Housing Development Schemes for Retired Persons Act 65 of 1988 introduced life rights as a formal form of ownership for retired people in South Africa. This legislation was implemented not only in response to the growth in the retirement village sector but also to provide legal protection to the elderly.

In a long-awaited and groundbreaking decision in the area of family law, the Constitutional Court of South Africa (CC) confirmed the order of constitutional invalidity of the below mentioned Acts, granted by the Supreme Court of Appeal. This decision was confirmed on 28 June 2022.

It’s often the case that a seller would like to sell – and a purchaser would like to buy – a property without approved building plans or an occupation certificate. But what does the law say?  In terms of the…

In this article, we explore the issue of the constitutional validity of section 7(3)(1) of the Divorce Act in respect of marriages entered into after 1 November 1984 and excluding the accrual system.

In March 2022, the Financial Intelligence Center (FIC) published a report dealing with the assessment of the inherent money laundering and terrorist financing (MLTF) risks for legal practitioners.

The constitutional validity of the Administrative Adjudication of Road Traffic Offences (AARTO) Act and the Administrative Adjudication of Traffic Offences Amendment (AARTO Amendment) Act was recently challenged in the matter between the Organisation Undoing Tax Abuse (OUTA) v The Minister of Transport and others.

There is currently no statute in South Africa that regulates the relationships between cohabitees if they are not formally married.

Here’s a look at a recent case which dealt with a dispute between the body corporate and residents in a sectional title scheme.

The case of Nienaber N.O. and van den Berg (the plaintiffs) versus Nelson and Kitching Attorneys (the defendants) highlights the criteria of the duty of care a conveyancer should be aware of when providing services to clients. In this case, the plaintiffs instituted action alleging that the defendants owed them a duty of care as conveyancers and acted negligently and in breach of such duty. Let’s take a closer look.

In the recent case of Potgieter v Village and others, held at the High Court of South Africa, Northern Cape Division, Kimberly, the applicant applied for an urgent interdict to restrain the first and second respondents from passing transfer of a specific property. The application for the interdict was pending action by the applicant to claim transfer of the property. In this case, both parties to the contract were represented by their attorneys.

Formalities are hugely important when it comes to the sale of immovable property, which is governed by the Alienation of Land Act 68 of 1981. The act states that no sale of land is permitted unless it has been put in writing and contained in a deed of sale – also commonly referred to as an Offer to Purchase – signed by all parties involved.

Water use in South Africa is mainly regulated in terms of the National Water Act 36 of 1998 (Water Act). The Water Act clearly states that water is a scarce and unevenly distributed resource and that Government has a responsibility to manage water use and distribution in a sustainable way to the benefit of all users. Water is a natural resource that belongs to all people, and to achieve sustainability and equality, and to protect our water resources, Government must manage the use and distribution thereof.

In terms of section 22(6) of the Black Administrations Act 38 of 1927 (BAA), all black marriages in South Africa were deemed to be out of community of property – and this default position was perpetuated by the Matrimonial Property Act 88 of 1984. In contrast, the default position for all other races in South African matrimonial law was, and continues to be, in community of property.

The validity of customary marriages recently came before the Western Cape High Court in the matter of T Diba vs E Miselo and one other. Central to the case were questions around the validity of the marriage itself as well as whether or not involvement of the family is critical to the recognition of customary marriages.

In an earlier article on the Financial Intelligence Centre Act (FICA), we explained that the main objective of the Act is to combat money laundering and the financing of terrorist activities. In this article, we’ll continue the discussion in terms of the duty of accountable institutions to report suspicious transactions to the Finance Intelligence Centre (FIC).

A stipulatio alteri is a clause that provides rights and benefits to a third party. In case law (Loggenberg NO v Maree (286/17) 2018 ZASCA 24), the typical stipulatio alteri is defined as a contract for the benefit of a third party.

During the apartheid years, several communities, including the Makuleke community, were forcibly removed from their land in order for it to be assimilated into the Greater Kruger National Park.

In South Africa, money laundering describes any activity in which money that originates from illegal activity is concealed. To combat this illegal process, South African law has implemented control measures aimed at assisting in its detection and investigation. 

Disputes or issues around decision making in a company very often involve the question of control – and it’s likely that the decision maker is the one who controls the company.

The Alienation of Land Act (ALA) clearly states that the validity of an Offer to Purchase (OTP) depends on the contract for the sale of immovable property being in writing and signed by the concerned parties or their authorised representatives acting on their written instruction. And the importance of signatures on an agreement of sale has once again been highlighted by a recent decision handed down by the Gauteng Local Division of the High Court in Johannesburg.

In the matter of Fulsome Properties (Pty) Ltd v Selepe and Others held recently at the High Court of South Africa, Gauteng Division, Pretoria, Fulsome Properties (Pty) Ltd (the applicant) requested an urgent interdict to restrain the first and second respondents (Fiona Gontse Selepe and Lentse Investments) from communicating and interfering in any manner whatsoever with the applicant’s tenant(s) residing at the property in question.

In a recent decision of the Appellate Division in Bloemfontein, in the matter of Maxrae Estates (Pty) Ltd v Minister of Agriculture, Forestry and Fisheries and Another (407/2020) [2021] ZASCA 73 (9 June 2021), the court made it clear that the executive must apply its mind prior to making decisions or exercising its legislative discretion.

SPLUMA stands for the Spatial Planning and Land Use Management Act, and SPLUMA certificates are governed by the act together with the by-laws of each local municipality.

The Legal Practice Act, which has replaced the Attorneys Act, has made some changes regarding monies paid into attorney trust accounts and the investment of this money on a client’s instructions.

There are several reasons why a landowner or developer may decide to build a new development in the place of an existing sectional title scheme. For example, the existing scheme may be dated and no longer suited to the area. Or the demand for residential units may be very high but the old development is undesirable.

On 1 July 2021, the Protection Of Personal Information Act 4 of 2013 (POPI Act) comes into full force and effect. While the Act was signed into law on 19 November 2013, the majority of its sections were only implemented on 1 July 2020, with a one-year grace period. Now, with the remaining sections coming into effect on 30 June 2021, the Act becomes enforceable by the Regulator.

The recent judgement in the matter of Tomlinson and Another v Tomlinson N.O and Others (11764/2015) [2021] ZAKZDHC 8 (19 March 2021) in the Kwazulu-Natal High Court, Durban has drawn attention to whether someone is able to sell a property if he or she is not the registered owner.

The Financial Intelligence Centre (FIC) defines money laundering as “the process used by criminals to hide, conceal or disguise the nature, source, location, disposition or movement of the proceeds of unlawful activities or any interest which anyone has in such proceeds.”

In the recently decided case of Magic Vending (Pty) Ltd vs N Tambwe and two other occupants of a rental house in Wynberg, the Western Cape Division of the High Court was asked to rule on a) whether the Consumer Protection Act applied to the case in question and b) whether the enforcement of the forfeiture clause contained in clause 14 of the lease agreement was contrary to public policy.

Non-resident property sellers should be aware of the requirements of section 35A of the Income Tax Act 58 of 1962. The section stipulates that an amount equal to 5% (individuals), 10% (companies) or 15% (trusts) of the proceeds of a sale of immovable property must be withheld and paid over to SARS within 14 days after “the date on which the amount was so withheld” – this is typically the date of registration of transfer. An exception is if the parties agree that the purchase price be paid before registration, in which case the 14 days will be calculated from such payment date.

This article seeks to highlight some aspects of expropriation of land by looking at the current section 25 of the Constitution and the Expropriation Bill 2020, issued by the Department of Public Works and Infrastructure.

When it comes to commercial lending transactions, the lender – usually a commercial or corporate division of a bank – may require confirmation that there are no land claims in process in respect of the property or properties that will form part of the security to be registered in the lending structure.

In the recent decision of Bwanya v The Master of the High Court and others, the court discussed the legal status of heterosexual life partners, specifically the rights of a surviving life partner to the proceeds of a deceased partner’s estate.

A requirement of the previous Companies Act of 1973 was that a private company must restrict the ‘right to transfer’ its shares, by way of the company’s articles of association, however, more recent legislation (Companies Act 71 of 2008) revised this. Now, a Memorandum of Incorporation (MOI) of a private company must restrict the transferability of any company’s ‘securities’ which includes both instruments such as shares as well as debt instruments such as debentures.

Cape Town has approved new legislation that will have a significant impact on how short-term and holiday rentals will operate in the city, enabling property owners to financially benefit from the tourism industry.

One of the fundamental components of being a legal practitioner is acting as a fiduciary of client funds which comes with a duty of care and significant responsibility.

The final step in the property transfer process is registration of the new title deeds in the Deeds Office. With the recent introduction of new legislation (the Electronic Deeds Registration System Act), we take a closer look at what this means for the registration process.

In the recently decided 2019 case of Jurgens and another v Volschenk, the Eastern Cape Division of the High Court made it clear that the utmost care must be taken by attorneys when handling trust money or dealing with a client’s finances, and that failing to do so will have severe consequences.

The Electronic Deeds Registration System Act 2019 and the Property Practitioners Act of 2019 (repealing the Estate Agencies Affairs Act 112 of 1976) were signed into law by his Excellency the State President on 2 October 2019.

The sale of a property and the transfer of ownership along with the transfer of significant funds opens itself up to fraudulent activity which is why it is important to familiarise yourself with the risks surrounding money laundering and how the Financial Intelligence Centre Act aims to protect citizens.

FICA is the Financial Intelligence Centre Act, 2001 as amended by the FIC Amendment Act 1 of 2017 which amendments came into operation on 2 April 2018.

There are several contexts in which it is necessary or desirable to subdivide agricultural land. Commonly, this happens when an individual wishes to leave property to his or her children through a will. While according to South African law, a testator may dispose of their property in any way he or she sees fit, there are certain limitations when it comes to subdividing agricultural land.

Whether it’s about financially benefiting from land which you already own, splitting your assets between your children or simplifying your life by downsizing, there are a number of reasons why subdividing your property might be the right way to go.

A duly incorporated company, as a legal entity, has all the legal powers and capacity of an individual yet it cannot negotiate, enter into contracts and sign documents on its own. For this, an individual needs to be appointed to represent the company.

There are times when a person is no longer able to manage his or her financial affairs or to make well informed decisions. In situations where this is deemed to be the case, South African law makes provision for a curator to take responsibility for the individual’s affairs on his or her behalf to ensure that these are managed effectively.

Many sellers and buyers, particularly those embarking on their first property purchase, may not be entirely clear on what a transfer attorney is or what their role is in the property transfer process. Since a transfer attorney or conveyancer plays such a significant part in the process, we’ve outlined some of the key points that buyers and sellers should be aware of.

While many of us are more familiar with situations where a property is purchased by an individual or individuals (classified as natural persons), it is also possible for a property to be purchased in the name of a legal entity, most commonly a company.

Should an original title deed or bond get lost, here’s the process that needs to be followed as per the latest amendments to Regulation 68 of the Deeds Registries Act 47/1937, published on 25 January 2019.

The process regulating client engagement has been amended in terms of the Legal Practice Act, 28 of 2014 (LPA), effective as of 1 November 2018, to ensure greater transparency.

Prior to the landmark decision in Jordaan and Others v City of Tshwane Metropolitan Municipality and Others [2017] there was some uncertainty around debts incurred by previous owners of a property.

The South African property market’s continued growth in the last 10 years has proved to offer valuable investment opportunities, both for local buyers as well as for foreign investors. However, as with many transactions that reach cross international borders, a property purchase by an individual or company needs to comply with a specific set of regulations.

Municipal property valuations can assist sellers in determining an appropriate asking price for a property, but property owners should also keep an eye on these figures so as to plan their monthly expenses properly…

Putting in a borehole on a property is often an attractive option for owners as it provides a convenient and cost-effective source of water. But before drilling for water, be sure to comply with all relevant regulations to avoid unpleasant penalties.

All title deeds – documents that confirm ownership of immovable property that is land – are registered, processed and stored by the South African Deeds Office. This information is vital as part of property transfers and ensuring accurate data is contained in the Deeds Registry is important for all parties concerned.

Staying up to date on current legislation is essential, not only for legal professional but also for individuals, to ensure all transactions are concluded correctly and in line with all relevant legislation.

There is much written about the sale and transfer of property by individuals in their personal capacity. But transactions involving the purchase by a legal entity such as a company, trust, or close corporation are dealt with slightly differently.

Currently regulated by the Estate Agency Affairs Act, 112 of 1976, the estate agent profession is set to see new legislation come into force in the near future.

South Africa has a diverse and rich history, represented in the buildings that have been built throughout the years. To ensure their lasting value and to preserve this legacy, these buildings are protected through legislation that regulates and restricts renovations and alterations made to buildings classified as historical monuments.

Depending on the reason for a change in name, the Deeds Registries Act may prescribe that the Deeds Office records need to be updated through an endorsement against a property’s title deed to reflect this change.

While South African law has historically catered to those married through a civil union or indigenous customary marriage, Islamic customary marriages have typically not enjoyed the same recognition. However, much has changed in recent years.

There are several potential benefits associated with property subdivisions, but before moving ahead with plans to subdivide a property, owners need to take into account a number of factors.

For many property investors and speculators, time is the key in a successful and profitable property transaction. Here’s what you need to know about Simultaneous Transfers.

With the threat of fraud ever present in large financial transactions, FICA is being effectively implemented by accountable institutions to remove the risk for all concerned…

The various compliance certificates required to transfer a property can contribute to ensure a property is safe, secure and in good condition. Here’s what you need to know.

Tenants in properties that are being sold have the potential to become a headache for buyers wanting to make the property their home, but clear agreements and terms can put that to rest.

The potential impact of unapproved building plans when it comes time to sell.

South African law makes provision for a minor child to own an inherited property with the assistance of their legal guardian.

When considering renovations to a property, there are typically requirements in place that stipulate how far a building must be from a road or a boundary wall.

Working from home is becoming increasingly popular, largely due to the increasing ease of connectivity. While there are many pros and cons that could be argued about making one’s home double up as an office, the tax implications of this decision should also be considered.

Due to a significantly dry winter across the country, and many dams being alarmingly low, severe water restrictions have been implemented in most regions.

Inheritance of assets in a deceased estate, and in particular of immovable property, can be complex.

Who is responsible for providing an Electrical Compliance Certificate?

What is FICA?