PROPERTY
Trends
• Much has been and will be said about our property price trends; visualisation is just so much better (graph by Codera):
• You will note that the Cape Town prices substantially outperform those in the balance of our country. The semi-gration tide seems to be shifting back to Johannesburg, as remote work is reined in by businesses.
• Speaking of which: BusinessTech ran a recent article on remote work being trimmed, stating that commercial property vacancy rates are decreasing with those rental rates rising (having said this, new leases are often at a lower rate than expiring contracts). The recent Rode Report holds that office rentals have marginally surpassed pre-pandemic levels for the first time.
News
- Sectional titles:
– A De Rebus article deals with a recurring problem: the poor/uneducated owning lower-end sectional property with such schemes suffering “mismanagement”. I don’t believe that there is an elegant solution to this: https://www.derebus.org.za/mismanagement-and-poverty-in-sectional-title-schemes-a-call-for-legal-reform/
Paddock has weighed in on the topic with proposals that he lists: https://www.paddocks.co.za/paddocks-press-newsletter/distressed-sectional-title-schemes-and-urban-decay/
-How do CSOS remedies compare to common law, when dealing with damage caused by neighbours: https://www.paddocks.co.za/paddocks-press-newsletter/addressing-damage-caused-by-neighbours-in-community-schemes/
-The following article may be helpful in dealing with communal property disputes: https://www.cliffedekkerhofmeyr.com/en/news/publications/2025/Practice/Real-Estate-Law/real-estate-law-alert-18-february-2025-transparency-and-co-operation-should-be-the-first-steps-in-resolving-real-estate-disputes
- Municipal dysfunction:
– Most of our municipalities have been mismanaged to the point where the supply of services is breaking down. The Citizen ran an article in which it notes that Eskom intends to disconnect 15 Free State towns by 17 April if their electricity arrears are not dealt with. A sad reality.
-The City of Tshwane reportedly owes a developer R40m for rates unlawfully levied and this is not the only such incident.
– NSFAS slums? Student accommodation appears to be preyed on by slum lords providing overcrowded, non-compliant residences which, in turn, leads to ordinary residents vacating the area, which, in turn, deprives municipalities of income and leads to urban decay.
- Estate agents:
-Which agent? Try https://www.hoom.co.za/
-A recent article by STBB, dealing with property scams, reports that the estate agents’ regulatory authority having cautioned the public to treat dealings with estate agents with caution; as one should deal only with accredited agents in possession of a Fidelity Fund certificate: https://theppra.org.za/agent_agency_search
-Agents commission? See: https://www.millers.co.za/OurInsights/ArticleDetail.aspx?ArticleID=7091&utm_source=mail_from_02/12/2025&utm_
Property ownership:
– Counter-spoliation is lawful: https://businesstech.co.za/news/government/782128/major-win-for-property-rights-and-fight-against-land-invasion-in-south-africa/
-The family of our evergreen newsmaker, ‘Nummawan’ has succeeded in having a 2005 decision by the Regional Land Claims Commissioner set aside and will seek to have the land (forming part of the Hilton College premises in KZN) returned or compensated for.
– A case on how peripheral municipal properties should be dealt with, in this case, sale as opposed to development for (poor) social housing, came before our Constitutional Court. The question appears to be whether there is a legal obligation on a municipality to provide social housing at a specified location and consult with government.
-The recent publicity, given Mr Trump’s immigration offer to Afrikaners, has led to heated discussion on the topic of land, ownership, and restitution. Heck, the instigators of this topic may well be tried for treason – which is quite a long shot. I ventured into the debate by asking my colleagues who would send me conveyancing if I relocated to the US of A: being a Rockspider, my intent to immigrate was taken seriously to the point where some of my colleagues offered my staff jobs! Fun.
-Zimbali (one of our premier KZN estate) hotel owners will be taking the developer of that scheme to court, having allegedly been misled by false promises.
-The yellow press reports that the Western Province Rugby Union is set to lose its ownership of Nuweland, owing to debts due to a bondholder not having been paid.
-In a JJS newsletter I found a snippet regarding the origin of the term “mortgage”: Derived from French “mort” and “gage” (literally “dead pledge” because it “dies” when settled), a mortgage secures a creditor’s claim and enables it to sell the bonded property if the debtor defaults in repaying the debt.
Legal stuff:
- -If not au fait with the new Housing Consumer Rights, you might wish to take a look at this article: https://www.werksmans.com/legal-updates-and-opinions/housing-consumer-rights-headed-in-the-right-direction/
- -Tax and promises
- -New conveyancing registration costs will take effect on one April: these were published in GG Volume 716 dated 28 February number 52191. In addition to the expected increase, a lodgement fee for each jacket lodged will be levied. If you wish a copy of this – ask me.
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-Does this poster ring a bell?
The fact is that the promise of digital property registration, by the end of this month, was made and published extensively: I may be proved wrong but I shall be very surprised if this promise is followed up in any fashion – except perhaps by way of an explanation why this development has become a ‘challenge’.
- -Raising fees: the Cape Town Tax Court recently delivered a judgement (IT 76795) in which it found that raising fees (for loans) are tax-deductible for the borrower. This decision is not in agreement with the SARS’s position, and you should be cautious. Ex Bowmans, Ms Pinch.
- -Selling a property with defects – latent and patent defects: https://cilreyn.co.za/2025/01/22/selling-an-property-with-defects-what-you-need-to-know/
- I chanced upon a note by H Gouws in LinkedIn which deserves a dust-off: penalty clauses are typically imposed by the withholding of a deposit, if the prospective purchaser does not follow through on his promises. Broadly speaking, these are not necessarily enforceable, as the Conventional Penalties Act, 1962 authorises a court to reduce the penalties to such extent as may be equitable in the circumstances. The case quoted by him may be found at https://www.saflii.org/za/cases/ZASCA/2006/55.html
Practice
News:
• RAF
– Yawn. The Discovery/RAF medical expenses dispute continues.
– The conduct of the RAF was criticised by Judge Hassim (Pretoria) for wasting time and resources in not participating meaningfully in court cases. The headline of the article suggests an RAF implosion.
• Lawyers misbehaving:
-Our past PP, Ms Mkhwebane’s campaign to have members of the committee, which found that she was unfit to hold office, removed, was described by the SCA as “unmeritorious”, stating that a competent and disinterested lawyer would have advised her not to pursue this avenue. One is tempted to assume that those involved were not acting pro amico?
– 400 practitioners have been disbarred by the LPC in the past six years out of 121,000: 0.33%. I had not known that they were that many of us!
• Egalitarianism on the rise? The Citizen ran a note on two husbands having asked the Concourt to declare parts of the Births and Deaths Registration Act unconstitutional, for them to adopt the surname of their female partners.
• Law students learn that law is created by custom/practice and legislation. A Codera graph shows the dramatic increase in legislation-driven law:
• The Law Reform Commission published a discussion paper on ADR: https://www.justice.gov.za/salrc/dpapers/DP168-Mediation-Jan2025.pdf
• AI –
-has had a bad legal rap here, in that those who used this system to argue, have repeatedly been caught out as the system does not necessarily use South African authorities. As predictor of the outcome of legal process, AI might well be an aid worth noting: https://www.israel21c.org/ai-software-predicts-if-a-legal-case-a-winner-or-no-hoper/ and
-in business certainly has a role: https://www.werksmans.com/legal-updates-and-opinions/technology-ai-in-the-workplace-and-beyond/
• NPA
-As Batohi nears the end of her term, as head of the NPA, the appointment process of her replacement is under discussion. Batohi was appointed, involving public interviews (after a campaign by the Right2Know grouping), but this is not a requirement of the NPA act. It will be interesting to see how finding her replacement plays out, given the perception of political interference in past appointments.
-An almost first: a costs order against the NPA was made in the Magistrate’s Court Mamelodi, after private prosecution stepped in to fill a non-prosecution by the NPA and the magistrate was not sympathetic to the NPA’s failure to prosecute.
– Mistakes all round! The NPA says that the judge who discharged the case against the Guptas, two years ago (fancy that) and who described the State’s investigation as a “comedy of errors”, had made eight mistakes of law and wants the SCA to order a retrial.
-The trending news topic is treason charges by the NPA against Solidarity/Afriforum; may one criticise the government by spreading misleading information? Whichever way this goes, the debate is sure to become heated.
• CGT and tiered trusts: this note is worth reading as it deals with taxation of CGT as opposed to the conduit principle, applied to income tax: https://www.derebus.org.za/the-law-reports-march-2025/
• Does one need separate wills for different territories?
• The effect of fraud on guarantees: https://www.werksmans.com/legal-updates-and-opinions/the-law-on-guarantees-revisited-and-confirmed/
• How does an employer calculate the minimum wage for employees not paid by the hour: https://www.webberwentzel.com/News/Pages/atypical-remuneration-structures-how-does-the-minimum-wage-apply-to-workers-not-remunerated-by-the-hour.aspx
• Lock-Box mechanism: don’t bother reading if you don’t know what this means: https://www.werksmans.com/legal-updates-and-opinions/understanding-the-concept-of-the-lock-box-locked-box-mechanism-in-the-mergers-and-acquisitions-space/
• The draft amendments to the regulation governing public-private partnerships are discussed: https://www.fluxmans.com/article/amendments-ppp-regulations-ian-jacobsberg
Hard News:
• Eviction following on the lapse of a lease: https://lawlibrary.org.za/akn/za-wc/judgment/zawchc/2025/34/eng@2025-03-04
• Are post-commencement creditors, creditors, for the purpose of business rescue? https://stbb.co.za/pulse-business-rescue-update-watershed-sca-judgment-confirms-that-creditor-includes-post-commencement-creditors/
• May one dismiss an older employee at any stage after that employee has reached the agreed/normal retirement age? https://stbb.co.za/pulse-the-case-of-the-post-retirement-dismissals-con-court-fails-to-reach-consensus-in-crucial-employment-law-matter/
• The validity of unsigned wills, published previously in Tech4Law: https://www.tech4law.co.za/news-in-brief/case-law-reports/court-case-on-unsigned-will/ and https://www.saflii.org/za/cases/ZAGPPHC/2025/145
• An interim award issued by an arbitrator, following a settlement agreement, is a valid cause of action for enforcing the obligations under the settlement: https://bowmanslaw.com/insights/south-africa-sca-confirms-the-enforceability-of-interim-arbitration-awards/
• To enforce a restraint of trade, the claimant needs to show that it/he has a legitimate protectable interest. In this case, the question was whether the customers and suppliers of the claimant, constituted a protectable interest: https://www.saflii.org/za/cases/ZALAC/2025/5.pdf
Conveyancing:
• Practitioners are recommended to read the legal section it under the Property heading above.
• The conveyancing tariff, which kicks in on one April, has been published. New fees have been created, particularly a lodgement fee. This was dealt with in CRC 2 of 2025. There are issues with this circular, primarily with how upfront fees are to be dealt with. In this respect, refer to in clause 3 of the CRC. Ask me for a copy.
• Online estate advertisements are now permitted. I confess not to be entirely clear on how this will work; especially when advertisements are/were intended to be regionally available. https://stbb.co.za/wp-content/uploads/2025/02/Newsflash_Chief-Master-Directive.pdf
• Can one challenge a certificate of balance when sued under a standard loan/bond agreement? See: https://blog.jjsinc.co.za/2025/02/25/mortgage-bond-arrears-can-you-challenge-a-certificate-of-balance/
Comment
I had taken a two-week break, prompted by a discount offer and SWMBO’s Blue Train bucket list.
Different, luxurious with mostly foreigners on board. Interesting company.
I was quite taken aback by the obvious neglect of the line network –
-most smaller stations were bare of anything;
-larger stations were obviously neglected, with rusted beams and peeling paint everywhere; and
-the line itself had comprised two tracks, the second is dysfunctional to the extent that it has virtually disappeared, necessitating long waits on sidings for opposing trains to pass.
My impression is (think discounted frantic last-minute searches for customers) that this South African icon will not be with us very long.
Tax is a hot topic today; this is how we compare to other territories (sourced from Codera):
Written by: Daan Steenkamp
https://www.daansteenkampattorneys.co.za/
Still looking for your dream home, or wanting to sell? Feel free to give one of our developers a call today.
Tom Eastwick – The Gates, Hilton and Garlington, Hilton | 072 297 2699 | tom@devdirect.co.za
Janet Channing – Waterford Residential Estate, Howick | 082 570 5834 | janet@devdirect.co.za