September 2026 | Property
“Words are loaded pistols.” (Jean-Paul Sartre)
In June 2018 a couple agreed to buy a house for R1.95 million. The sale was subject to two conditions: that they sell another property within ninety days and obtain a bond for the full purchase price.
The other property was sold, but the bank approved a bond for less than the amount required. The agreement allowed the seller to accept the lower bond and regard the condition as fulfilled. It was common cause that both conditions had been met and that the sale was unconditional.
The transfer then ran into trouble. While the documents were being prepared, the Deeds Office established that one of the buyers was an unrehabilitated insolvent. The bank withdrew the bond.
The seller did not cancel at that point. She agreed to a memorandum giving the buyers several ways to resolve the problem. They could apply for the buyer’s rehabilitation, seek a bond in the other buyer’s name, or wait until the end of May 2019, when he would have been rehabilitated. None of these options were pursued.
In April 2019 one of the buyers emailed the conveyancer. He said there was no point applying for another bond until an alleged defect had been addressed. He wanted the seller to repair it or agree to a lower price, after which the buyers would apply for the bond. If she would not consider this, they would have to look at other options.
The seller treated the email as a repudiation, accepted it, and cancelled the sale.
Asking is allowed. Insisting is the problem
Repudiation occurs when one party, without lawful grounds, shows through words or conduct that they no longer intend to perform the contract. The other party may then insist that the contract be honoured or accept the repudiation and cancel.
The buyers were entitled to ask whether the seller would repair the alleged defect or consider a lower price. She was equally entitled to refuse. Unless both sides agreed to an amendment, the signed agreement remained binding.
This email went further than a request. It made the bond application dependent on the seller repairing the defect or accepting a lower price. The buyers were not offering to proceed under the existing agreement while discussing a possible change. They were saying that they would proceed only on different terms.
The Court accepted that the buyers may still have wanted the property. That did not decide the matter because repudiation is judged objectively. The question was how a reasonable person in the seller’s position would understand the email, not what its writer privately intended.
A reasonable reader would have understood that the buyers were no longer prepared to perform under the agreement as it stood. The High Court therefore found that the seller had validly cancelled the sale.
What did the cancellation cost the buyers?
The agreement allowed the seller to keep the money already paid if the sale was cancelled in these circumstances. This is sometimes referred to as rouwkoop. The Magistrates’ Court had ordered that the money be returned, but the High Court reversed that order.
The buyers also became liable under the estate agent’s commission clause because the sale had been cancelled due to their conduct. A further financial judgment was granted against them, together with interest and legal costs.
One email had therefore cost the buyers the sale, the money already paid, and a substantial additional amount (almost R150,000.00).
How can you ask for a change safely?
Make it clear that you are proposing an amendment rather than refusing to honour the existing agreement.
Asking, “Would the seller consider reducing the price?” opens a negotiation. Saying, “We will not proceed unless the price is reduced,” may allow the seller to cancel. No particular wording guarantees safety because the communication will be read as a whole and in the context of the parties’ conduct.
Deal with the price, finance, defects, and other material terms before signing wherever possible. If a problem arises after the agreement becomes binding, obtain legal advice before sending a message that could be understood as a refusal to perform.
Buying or selling property, or stuck in a transfer that has gone wrong? Speak to us before you put anything in writing.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.
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September 2026 | Property
“Force is not a remedy.” (John Bright)
The facts
The owner had two properties in a residential estate in Midrand, one of which she leased to tenants. A dispute had arisen between her and the association over levies and other charges.
The association had already sued her in the Magistrates’ Court for the amounts it claimed were outstanding. She disputed both her liability and the amount claimed. While that case was still pending, the association disabled fingerprint and facial recognition access for her and her tenants, forcing them to use the visitors’ lane.
The owner then approached the High Court to have their biometric access restored. The levy claim remained before the Magistrates’ Court.
Can an estate use access to enforce payment?
The association pointed to its Memorandum of Incorporation, which allowed it to withhold biometric access where a member was in breach, including by failing to pay an amount due. But the alleged default was already the subject of the separate Magistrates’ Court dispute. The owner denied that she owed what the association claimed.
The High Court held that the association could not decide for itself that she was in default. Claiming a breach while the dispute remained unresolved was premature, and by cutting off access on that basis the association was itself in breach of the relationship it was purporting to enforce.
It also left the association occupying three roles at once:
- the judge of whether a debt existed
- the judge of what should follow
- the party that carried out the sentence
That is the kind of self-help the law does not permit.
Is biometric access part of possessing your home?
The owner relied on the mandament van spolie, a remedy that restores the previous position without first deciding who is right in the underlying dispute.
The Court held that biometric access was linked to possession of the property. Unlike a separately supplied service such as electricity, it existed to facilitate entry to a home the residents already possessed. Removing it therefore interfered with their possession.
But they could still get home
The association argued that nobody had actually been locked out. The owner and her tenants could still enter through the visitors’ lane.
The Court rejected this argument. What had been taken away was the particular method of access the residents had previously exercised. Once biometric access was recognised as an incident of possession of the property, the fact that they could still use the visitors’ lane was irrelevant.
What about the gym and other amenities?
The Court drew a line between access to the property and access to recreational facilities.
Access to the gym, tennis courts, squash courts, and clubhouse was separate from access to the owner’s property, so it could not be restored using the same remedy. The Court nevertheless indicated that removing access to those amenities while the court process was pending and without a court order was prima facie unlawful. It was simply the wrong remedy for that part of the complaint.
The association was ordered to immediately restore fingerprint and facial recognition access for the owner and her tenants, and to pay the costs of the application, including legal costs.
The judgment does not allow homeowners to ignore levies they lawfully owe. It does, however, confirm that an association cannot disable access to a resident’s property to force payment of a disputed debt.
Embroiled in a levies dispute? Speak to us about your rights and the appropriate legal remedy.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.
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August 2026 | Property
“Good fences make good neighbours.” (Robert Frost)
The neighbours, in the affluent suburb of Bakoven, had been locked in an acrimonious dispute for almost two decades when CCTV cameras became the latest point of contention.
The cameras installed at one property had a clear line of sight into parts of the neighbouring property, including a courtyard, part of a swimming pool and entertainment area and, according to the neighbour, the interior of a bedroom. The cameras also had 24-hour surveillance and recording capability.
Security has limits
The camera owners argued that the system had been installed for legitimate security reasons, including concerns about crime and protecting their property.
The Court recognised the importance of security. The question was whether monitoring the neighbouring property was a reasonable and justifiable way of achieving that objective.
On the evidence, however, the Court was not persuaded that security was the primary concern. It concluded that the security concerns were secondary to a grievance about structures on the neighbouring property.
The evidence also showed that significant portions of the cameras’ viewing angles were directed at the neighbouring property, including areas the Court regarded as intimate and private.
Privacy does not stop at the boundary wall
Section 14 of the Constitution protects the right to privacy. As interpreted by the Constitutional Court, that protection includes a sphere of intimacy and autonomy that should be protected from intrusion.
The Court found that areas such as a private swimming pool, entertainment area and courtyard are places where people can reasonably expect to conduct their personal and family lives without being subjected to systematic surveillance.
The fact that part of a neighbouring property may be visible from elsewhere does not mean it can be placed under permanent camera monitoring. Privacy is not limited to areas of complete physical seclusion.
Could the intrusion have been avoided?
The camera installer did not deny that alternative locations were available that could protect the owners’ property without intruding on their neighbour’s privacy.
The Court also pointed to less restrictive security measures, including electric fencing, burglar bars and a security system with motion detector beams. The camera owners therefore failed to show that the limitation of their neighbour’s privacy was justified.
The Court also upheld the finding that the persistent surveillance amounted to an actionable nuisance. Continuous monitoring was materially different from a neighbour occasionally looking over a boundary wall: the neighbour, his family and guests were subjected to permanent and invasive scrutiny.
The cameras had to move
The appeal was dismissed, leaving in place an order requiring the cameras to be removed and repositioned so that they had no line of sight into the neighbouring property.
Importantly, the order went further. The camera owners were also prohibited from installing future cameras or recording devices with a direct line of sight into the neighbour’s private property.
The Court also ordered the camera owners to pay legal costs on the higher attorney and client scale. The Court said this was justified by the way the litigation and appeal had been conducted, including the inclusion of extensive irrelevant material and an unsuccessful attempt to introduce further evidence. It also described the conduct of the camera owners’ legal representatives as objectionable and vexatious. The judgment does not prevent homeowners from using CCTV for security. It does make clear that security measures must be proportionate and should not unnecessarily place a neighbour’s private spaces under surveillance.
Installing CCTV, or concerned that a neighbour’s cameras are monitoring your property? Speak to us.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.
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July 2026 | Property
“You do not mend a broken vase by handing over a new one.” (Anonymous)
When a property sale is cancelled, most people picture a straightforward reset. The seller keeps the property, the purchaser gets the money back, and everyone walks away as if the deal never happened.
The law calls this restitutio in integrum, and a recent Gauteng High Court decision shows that putting the parties back where they started can be a far more exact exercise than simply reversing the transaction.
Restitution is not a reset button
The dispute followed the cancellation of a sale involving a smallholding in Kyalami. The purchaser had taken occupation of parts of the property, including a restaurant and farm stall. Transfer had not yet taken place because the financing and other conditions attached to the sale had not been finalised.
In December 2017, while the purchaser was still in occupation, an arsonist set fire to the restaurant. Neither party had caused the fire, but the sale agreement placed the risk of damage on the purchaser. The financing arrangements and other conditions remained unresolved, and the purchaser cancelled the agreement in May 2018 without transfer ever having taken place. He was entitled to repayment of R2,15 million, less the fair and reasonable cost of repairing the fire damage. The court had already decided that the repair costs must be deducted from the purchaser’s refund, but the amount of that deduction was only determined in 2026.
The principle of restitutio in integrum requires the parties to be restored, as far as reasonably possible, to the positions they held before the agreement.
That sounds simple in theory. In practice, years may pass between occupation and cancellation, and the property itself rarely stays the same. A building can be damaged, deteriorate, or simply age. When that happens, restitution has to account for the difference between what was handed over and what is being handed back.
Old does not come back new
The court had to assess the fair and reasonable cost of remedying the fire damage to the restaurant and farm stall, taking into account the condition of the structures when the purchaser took occupation. Parts of the restaurant and farm stall were already in poor condition, and some earlier work had been badly done.
Restitution could not be used to turn an aged or poorly built structure into a new one at the purchaser’s expense. Where a proposed repair would leave the seller with something materially better than what existed before, the court reduced the amount allowed.
The purpose is to restore what was lost, not improve what was already there. The question was not what it would cost to replace the structures with new ones, but what it would fairly cost to restore what had actually been damaged.
You can’t deduct the same problem twice
The purchaser argued that, after the court had calculated the cost of each repair, the overall figure should be reduced again to reflect the property’s poor condition before the fire.
The court rejected this argument. It had already reduced the relevant repair amounts to reflect the structures’ age, poor condition, and substandard workmanship. A further general reduction for the property’s overall condition would therefore have deducted for those same problems twice.
The court fixed the fair and reasonable cost of restoration at about R1.36 million. After this was deducted from the R2.15 million repayable to the purchaser, the seller still owed him about R799k.
Record the condition, or argue about it later
The judgment also shows why you should record a property’s condition when occupation changes hands.
Where there is no clear record of what a property looked like at handover, parties may be left arguing years later about whether a structure was sound, dilapidated, damaged, or badly built before the purchaser arrived.
Photographs, walk-through videos, inspection reports, inventories, and records of existing defects can matter far more than memory if a sale later collapses and restoration becomes disputed.
In this matter, the condition of the restaurant and farm stall when the purchaser took occupation formed part of the court’s assessment of what fair restoration required.
Why the date of cancellation matters
The passage of time did not postpone the financial consequences until the date of judgment.
The sale agreement was cancelled on 31 May 2018. The parties had agreed that interest on any amount ultimately found owing would run from that date, and the court had already made an order to that effect.
By the time the restoration dispute was finally decided in 2026, more than R613k in interest had accrued on the outstanding amount.
Bottom line
Buying or selling property and handing over occupation before the deal is complete? Speak to your attorney about recording the property’s condition and making sure the agreement clearly deals with risk.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.
© LawDotNews
July 2026 | Property
“It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.” (attributed to Mark Twain)
A married couple moved to Australia and rented out their South African family home while they tested the waters Down Under. Years later, once they had decided to remain abroad, they sold the property and gave their tenant notice under a clause that allowed them to cancel the lease on three months’ written notice.
The tenant argued that the lease was protected by the Consumer Protection Act (CPA) and could only be cancelled if he had materially breached it.
A recent Supreme Court of Appeal decision explains why the tenant’s CPA argument failed, but also why the landlords could not require him to vacate without following the proper eviction process.
Not every landlord is in the letting business
For a residential lease to fall within the CPA’s definition of a rental, the letting must take place in the ordinary course of business.
The court found that the couple were not in the business of letting property. They had let out their own home as a temporary measure while deciding whether their move abroad was permanent, not as part of an ongoing letting business.
They were not continually marketing rental services and were therefore not suppliers as contemplated by the Act. Their tenant, in turn, did not qualify as a consumer. On this basis alone, his reliance on the Act failed.
Where the line actually falls
Whether a lease falls within the CPA depends on its factual setting. What matters is whether letting property forms part of the landlord’s ordinary, continuing business activity.
A court must look at what business the landlord actually carries on and how that business operates. The fact that rent is being paid does not settle the question on its own.
A valid cancellation does not authorise an eviction
The High Court upheld the cancellation of the lease and ordered the tenant to leave by a fixed date.
The Supreme Court of Appeal set that order aside. Requiring the tenant to leave was, in effect, an eviction order, but the process required under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) had not been followed.
Under PIE, a court must decide whether eviction is just and equitable and determine an appropriate date for the tenant to leave.
A landlord therefore cannot treat cancellation of a lease as an automatic eviction. Cancelling the lease and evicting the tenant are two separate legal steps.
Two questions, not one
For landlords and tenants alike, the lesson is to keep these questions separate. First ask whether the lease falls within the CPA by looking at the nature of the landlord’s letting activity. Then, if the lease has ended and the tenant remains in occupation, the eviction process must still be dealt with under PIE.
A cancelled lease ends the contract, but it does not remove the tenant.
Not sure whether the CPA applies to your lease or whether the correct eviction process has been followed? Speak to us before taking the next step.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.
© LawDotNews
June 2026 | Property
“The single biggest problem in communication is the illusion that it has taken place.” (George Bernard Shaw)
Many landlords assume that once a tenant stops paying rent, an eviction order will inevitably follow. A recent Western Cape High Court judgment shows how wrong that assumption can be. Despite rental arrears of more than R46,000 and an apparently legitimate grievance, a landlord’s eviction application failed because of a problem many people overlook: the cancellation letter.
The dispute arose after tenants allegedly fell behind on their rental payments. The landlord sought to terminate the lease and evict the occupants. Although the alleged arrears were not seriously disputed, the case ultimately turned on a different question: whether the lease had been validly terminated in the first place.
The court didn’t even consider whether the eviction itself would have been justified. Instead, the application failed because of defects in the cancellation process.
Why the cancellation failed
The letter sent to the tenants purported to cancel the lease immediately because of the rental arrears. At the same time, it gave the tenants a future date by which they had to vacate the property and demanded payment of the outstanding amounts.
The difficulty was that the letter appeared to communicate several different and potentially contradictory things at once. Had the lease already been cancelled? Were the tenants being given an opportunity to remedy the breach? Would payment of the arrears change anything? The notice did not provide clear answers.
The court confirmed an important principle of South African law: a notice terminating a lease must be clear, unconditional and unequivocal. If a notice leaves uncertainty about the parties’ rights and obligations, it may be invalid.
In this case, the court found that the cancellation notice was ambiguous. Because the lease had not been validly terminated, the landlord could not establish that the occupants were unlawfully occupying the property. Without unlawful occupation, the eviction application could not succeed.
A costly lesson for landlords
For landlords, the lesson is straightforward. Even where a tenant owes substantial rental arrears, a defective cancellation process can derail an otherwise strong case. Before launching eviction proceedings, it is essential to ensure that all notices have been properly drafted and served, and that all requirements for a valid termination have been satisfied.
For tenants, the case demonstrates that the outcome of an eviction application is not determined solely by whether rent is owing. A landlord must also show that the lease was lawfully terminated before a court will consider whether an eviction order should be granted.
The judgment is a reminder that legal disputes are not won on the facts alone. Even where a landlord has a legitimate grievance, a defective notice can bring an eviction application to a halt before a court ever considers the merits of the case.
The lesson extends beyond landlord-tenant disputes. Small drafting errors in legal notices can have significant consequences, particularly where rights and obligations depend on clear communication.
A properly drafted notice can prevent costly litigation. If you are considering cancelling a lease or pursuing an eviction, obtaining legal advice before taking formal steps may help avoid costly delays and unnecessary disputes.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.
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