SecuBond

02/09/2026

Dodgy Deck: When a Property Defect is Your Problem, Not the Seller’s

Article done by Conradie Inc. Attorneys

“The buyer needs a hundred eyes, the seller not one.” (George Herbert)

A Marina Da Gama property. A collapsed wooden deck. A purchase price of R1.55 million and repair costs claimed of just over R100 000. The facts are not complicated. But the legal battle that followed lasted more than a decade.

What happened
The buyers purchased a residential property in October 2013 after the estate agent described it as being in stunning condition. They took occupation in January 2014. Seven months later, the upper wooden deck collapsed. Expert evidence subsequently confirmed that the decks had been constructed without approved plans and were not built to National Building Regulations standards. The defects were latent, meaning they were not visible to a layperson on inspection.

The buyers pursued the estate agent, his close corporation, and the seller across eight separate claims. At the close of the buyers’ case, the defendants asked the court to dismiss the matter on the basis that insufficient evidence had been presented against them. The court agreed and dismissed all the claims.

“Stunning” is not a structural warranty
The buyers argued that the estate agent’s description of the property as being in “stunning” or “beautiful” condition amounted to an actionable misrepresentation. The court disagreed.

Descriptive sales language of that kind is puffery. It reflects aesthetic opinion, not structural fact. It does not amount to a representation about the integrity of the building, compliance with approved plans, or the absence of latent defects. To cross from puffery into misrepresentation, a statement must assert a verifiable fact. Words like “stunning” do not do that.

The estate agent’s duty of disclosure, under the legislation applicable at the time, extended to material facts within his personal knowledge. It did not require him to conduct engineering or technical investigations to uncover hidden structural defects. The defects would not have been visible to a layperson. They were not within his knowledge. No actionable misrepresentation was established.

The voetstoots clause held
The sale agreement contained a voetstoots (as it stands) clause. To defeat it, the buyers were required to prove two things: that the seller had actual knowledge of the latent defect, and that he deliberately concealed it with the intention to defraud.

Neither was established. The buyers’ own evidence undermined the claim. Both buyers described the seller as a decent, honest person. One stated plainly that the seller did not know about the defects. Quick-fix repairs noted by the experts did not change that conclusion. Repairs may reflect ordinary maintenance. They do not, on their own, establish knowledge of a structural defect or an intention to deceive. Fraud is not lightly inferred.

Getting the damages calculation wrong
Even if the buyers had established liability, their damages claim faced a separate problem. The actio quanti minoris, a claim for a reduction in the purchase price, entitles a buyer to compensation for the property’s reduced value caused by the defect. The reasonable cost to repair may serve as evidence of that reduction, but no more. The buyers simply claimed replacement costs, which was entirely the wrong way of going about it.

In plain terms
Puffery is not a promise – in fact, it’s to be expected in real estate listings. A voetstoots clause is not easily defeated. And the burden of investigating a property before signing rests firmly on the buyer.

Nine court days. Twelve years. Presumably substantial legal costs. Every claim dismissed. Get advice before you sign, not after the deck collapses.

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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23/07/2026

One Bad Letter and Your Eviction Falls Apart

Article done by Conradie Inc. Attorneys

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.

01/07/2026

One Bad Letter and Your Eviction Falls Apart

article done by Conradie Inc. Attorneys

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.

18/06/2026

Reckless Lending: You Could Lose Everything

Article done by Conradie Inc. Attorneys

A recent High Court decision provides yet another cautionary tale for lenders. The stakes are high: get this wrong, and you could lose everything.

Two big risks for lenders
Before you lend, be aware of two major risks that you need to manage. Both are imposed by the National Credit Act (NCA):

Not registering as a credit provider: If you lend money without registering when you were required to do so, your agreement will be invalid and unenforceable. You will lose everything unless you can convince a court to make a “just and equitable” order allowing you at least a partial recovery. This is by no means guaranteed, so a risk not worth taking.

As a general guideline, if your loan is made at “arm’s length” you will probably have to register. In contrast, loans not made at arm’s length – such as informal loans between family and friends, or between related companies in a group – may be excluded. But the rules are complex and our courts have had to wrestle with several borderline cases over the definition of “arm’s length”. There is no substitute for advice specific to your situation.

Note that even a single qualifying loan, of any size, can trigger the requirement. The thresholds that previously limited it to commercial lenders and to larger loans fell away in 2014 and 2016 respectively.

Reckless lending: Let’s turn now to the second risk, which applies whether you are properly registered as a credit provider or not. We’ll illustrate it with a recent High Court decision in which a family trust’s lending was held to be reckless and therefore irrecoverable.
A family trust lends R430k to a heavily indebted couple
A SAPS employee and her husband, heavily indebted to a range of creditors, approached a debt consolidation business for help in 2012.

Having carried out its version of the credit assessment required by the NCA, the debt consolidator organized a lifeline for the couple in the form of a R430,000 loan from an investor (a family trust) to pay off their debts. The loan was secured primarily by a bond over the couple’s house in Kraaifontein. A secondary security in the form of a sale agreement by the couple to the trust was to be held in reserve and activated only in need. The idea was that, after a short period of financial rehabilitation, the borrowers would refinance the loan through a bank, but that never happened.

When the borrowers defaulted on their repayments, the trust sued for R430,000 plus interest (a lot of money at 17.1% p.a. for 10 years), and an order allowing it to sell the couple’s bonded house to satisfy the debt.

The Court declared the credit agreement “reckless credit” and set it aside. The trust must now write off the balance of its loan and interest, cancel its bond over the couple’s house, and pay all the legal costs. Its only consolation is that the Court, in exercising its discretion to structure a just and equitable solution between the parties, allowed the trust to keep the R251,325 already paid to it.

What went wrong?
Why did the lender lose so badly? In a nutshell, the affordability assessment performed by the debt consolidator was flawed. Instead of asking whether the couple could afford this loan based on their existing financial means (as required by the NCA), the assessment relied on “a risky potential of future funding”, i.e., the speculative prospect of a mainstream bank granting a further loan in the future. The borrowers had always been over-indebted, this new loan made their situation even worse, and therefore the lending was reckless.

Lenders: How to avoid a “reckless lending” declaration
NCA regulations in force since 2015 set out in detail the various technical criteria and formulae to be used in assessments. This is just an overview of what you need to cover:

Perform a proper credit assessment: This is make-or-break. It is a specific and fundamental requirement of the NCA that you carry out a proper assessment before granting credit, and you must be able to prove that you did so with documentary backup if challenged.
Confirm affordability: Assess income, expenses, and existing debt, verifying everything with proper salary slips, bank statements, etc. As we saw in the case above, affordability must be assessed on the borrower’s current “financial means, prospects and obligations”, not future hopes or prospects. You must establish the borrower’s “discretionary income” by subtracting from total income all monthly deductions, living expenses and the like, with reference to a table of “norms” set out in the regulations.
Check repayment history: You must take into account the borrower’s debt repayment history under other credit agreements.
Explain everything fully to the borrower: Make sure the borrower fully understands the structure of the loan, the total costs, obligations, and risks. Use plain, non-technical language to avoid any claims of confusion or deception.
Avoid over-indebtedness: You must be able to show that the repayment plan is realistic and affordable to avoid a finding of over-indebtedness.
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.

01/06/2026

LATENT DEFECTS, MISREPRESENTATION, SILENCE AND THE LIMITS OF THE VOETSTOOTS CLAUSE IN RESIDENTIAL PROPERTY

Article done by Rauch and Gertenbach Conradie Inc. Attorneys

Purchasing a residential property is often the most significant financial investment a person will make. Yet even after taking occupation, a buyer may discover defects that were not apparent during inspection.

Common latent defects include a leaking roof, unstable foundations, faulty wiring, plumbing that fails under pressure, hidden termite or pest damage, and non-compliant or unsafe structural work. Statutory defects, such as non-permitted building additions, lack of compliance with municipal building regulations, or failure to obtain occupation certificates, also fall within this category, as these may only become apparent during a municipal/expert inspection. These defects are not visible or discoverable upon reasonable inspection at the time of sale, and they can have serious financial and safety implications.

While the voetstoots ("as is") clause generally protects sellers against liability for such defects, this protection is not absolute. If a seller knew of a defect and deliberately remained silent, or actively misrepresented the property's condition, courts have held that the voetstoots clause offers no defence.

Voetstoots and Its Boundaries

The voetstoots clause means that the purchaser accepts the property with all its defects, both patent (visible to the naked eye) and latent (hidden and not easily discoverable). Purchasers are always responsible for patent defects unless the contract provides otherwise.

However, the protection afforded to sellers is not unlimited. In Speight v Glass and Another 1961 (1) SA 778 (D) at 782A, Fannin J held that:

"A seller who knows of the existence of defects in the thing sold, but deliberately refrains from disclosing them to the buyer, is guilty of fraud."

It was further held in Van der Merwe v Meades 1991 (2) SA 1 (A) that a seller loses the protection of the voetstoots clause if:

1. They were aware of the defect at the time of sale; and

2. They intentionally concealed it with the aim of misleading or defrauding the purchaser.

This is a high threshold, as the purchaser must show both knowledge and intent. Historically, many sellers avoided liability by denying fraudulent intent.

Silence as Fraud:

In Odendaal v Ferraris 2009 (4) SA 313 (SCA), the court held:

"Where a seller recklessly tells a half-truth or knows the facts but does not reveal them because he or she has not bothered to consider their significance, this may also amount to fraud."

Thus, where a seller knows of defects and deliberately remains silent, that silence may be fraudulent. Liability arises not only where a seller actively misrepresents facts, but also where they "craftily refrain" from informing the purchaser of defects, knowing the purchaser is ignorant of them.

The principle is simple: a seller who remains silent about a defect they know of, in circumstances where a reasonable person would speak up, is acting dishonestly. Under such circumstances, the voetstoots clause provides no shield.

Aedilitian Remedies: Protection for Purchasers

Where latent defects exist, the purchaser is not without recourse. Depending on the circumstances, the following aedilitian(common law) remedies may be available:

Actio Empti (Damages)

Purchasers may claim damages if the seller breached a warranty, acted fraudulently, or knowingly concealed defects.

Actio Redhibitoria (Repayment and Cancellation)

Where defects are so serious that the property is unfit for its purpose, the purchaser may rescind the contract and claim repayment of the purchase price plus interest.

Actio Quanti Minoris (Price Reduction)

If cancellation is not justified, the purchaser may claim a reduction in the purchase price. This requires expert valuation to show the difference between the actual value of the property and the price paid.

Conclusion

The voetstoots clause does not provide blanket immunity to sellers. South African courts have made it clear that where a seller knows of latent defects and either misrepresents the condition of the property or deliberately remains silent, they act fraudulently. In such cases, purchasers may claim damages, a price reduction, or even cancellation of the contract.

The law thus balances fairness: while buyers must beware and conduct inspections, sellers cannot hide behind dishonesty or silence. Fraud unravels all.

Article by: RUBEN MARITZ (LLB) Attorney
For more information contact Ruben at 044 6019900 or [email protected]

05/05/2026

Buying a House: What Costs Will You Pay, and When?

Article done by Conradie Inc. Attorneys

“It is a comfortable feeling to know that you stand on your own ground. Land is about the only thing that can’t fly away.” (English novelist Anthony Trollope)

With interest and home loan rates at their lowest since 2022, it’s no surprise that South Africa’s property market confidence level at the end of 2025 was sitting at a record high of 87%. That will have been boosted by the country’s positive economic outlook following Budget 2026, and by Budget 2026’s 50% increase in the primary residence exclusion (which should stimulate sales by reducing the CGT payable by sellers).

If you are a buyer about to put in an offer on a house, remember to budget for the various costs you’ll face over and above the purchase price. In all the excitement of your purchase (particularly if it’s your first house!) it’s easy to underbudget. But you really don’t want to risk any unpleasant financial surprises. If you do breach a term of the sale agreement by not paying something on time, you could even face cancellation of the sale and a damages claim.

Only with a proper budget and cash flow forecast can you be confident both that you really can afford to offer for the house you’ve fallen in love with, and that you’ll be able to pay everything you need to, when you need to.

Have a look at the list we’ve put together below and use it to prepare your own detailed cash flow forecast. Ignore anything that doesn’t apply to you and bear in mind that every buyer’s situation will be unique, so this is no more than a generalised checklist.

Costs payable before transfer
The deposit: Most sale agreements – often titled as an “Offer to Purchase” (OTP) until it’s accepted by the seller – require you to pay a deposit, usually 5% or 10% of the purchase price.
Bond/home loan initiation fee: This fee normally incorporates a valuation fee and is added to your loan, but check with whichever bank you use.
Homeowner’s insurance policy and life cover policy (if required by the bank): Be sure to provide for payment of the first premiums before bond registration.
Balance of the purchase price: If the deposit you paid and the bond you took out don’t cover the full price, you’ll need to pay the balance before transfer.
Transfer duty: Unless VAT applies to the sale, transfer duty is payable. This is a government tax payable via SARS before transfer. It applies to all property sales over R1,210,000, on a sliding scale linked to the sale price. This can be a substantial cost!
Transfer fees: The transferring attorney (conveyancer) charges fees based on a sliding scale linked to the sale price. Added to the account will be charges for F**A verification, deeds searches, postages and petties, other disbursements and the like.
Bond registration fees: If you take out a bond, the bank appoints an attorney to register it, with the fees calculated on the size of the loan and including the attorney’s fees, F**A charges and a prescribed Deeds Office registration fee.
Deeds Office fees: These are government charges for both transfer and bond registration.
Rates clearance: Your local municipality will require advance pro-rata payment of municipal rates before it issues the necessary clearance certificate.
Levy clearance: Similarly, if you are buying into a complex, the sectional title’s body corporate or Homeowners’ Association (HOA) will require pro-rata levy payments before issuing a clearance certificate.
Occupational interest (if applicable): If you take occupation before transfer, you need to budget for whatever occupational interest is provided for in the sale agreement.
Utility deposits: If required by your local municipality when opening up water and electricity accounts.
Moving costs: Don’t overlook these when budgeting!
Some of these costs are easily overlooked, but they can add up alarmingly. So, plan for them all before you put in your offer to purchase.

Ongoing monthly costs after transfer
Include bond instalments, municipal rates and taxes, levy payments (if you buy in a sectional title or HOA), utility charges, insurance premiums for the property and the contents, and so on.

One-off costs after transfer
If you plan to do alterations or repairs, redecoration, garden revamps, furniture replacement or anything similar, add these costs to your budgeting so you don’t suddenly run out of money and have to postpone them. For long-term planning, set aside a budget for ongoing home maintenance.

As always, we are here to assist, so let us know if you have any questions, need any further information, or would like help in creating a cash-flow projection specific to your purchase.

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.

21/04/2026

26/03/2026

Transfer of property to Heirs

Article done by Rauch Gertenbach attorneys

Part 1:

When a person passes away, their estate, which includes all their assets and liabilities, must be distributed in accordance with their will and relevant legislation. Immovable property, such as a house, sectional title unit, farm or plot of land, may form part of the estate assets. This article will unpack the legal aspects involved in transferring such property from the deceased estate to the rightful heirs. Understanding the legislative principles can help executors and beneficiaries navigate the process with greater confidence and fewer delays.

The heir/s to whom immovable property must be transferred will be determined by the Will of the deceased or, if the deceased did not have a will, by the provisions of the Intestate Succession Act 81 of 1987. It's important to note that heirs do not automatically acquire ownership of immovable property upon the death of the deceased. Ownership is only transferred upon the registration of the property in the Deeds Office, facilitated by the executor and a conveyancer.

The estate administration process is regulated by the Administration of Estates Act 66 of 1965 and starts with reporting the death and the estate to the Master of the High Court, who then appoints an executor to manage the estate's administration. An executor will have been nominated by the Will of the deceased or by a nomination form signed by the intestate heirs in the absence of a Will.

Section 13 of the Administration of Estates Act provides that no person shall liquidate or distribute any assets in the estate of any deceased person except under letters of executorship granted by the Master. The nominated executor therefore has no authority to alienate or distribute any assets in a deceased estate before they have been appointed by the Master by virtue of Letters of Authority or Letters of Executorship.

The executor, once appointed, is responsible for:

Identifying and gathering all assets of the deceased, including immovable property.

Settling any debts and liabilities of the estate.

Preparing and submitting a Liquidation and Distribution (L&D) Account to the Master for approval.

Distributing the remaining assets to the rightful heirs in accordance with the will or the provisions of the Intestate Succession Act.

The liquidation and distribution account is sent to the Master's office for approval and must lay open for inspection at the Master's office, after the Master has examined it. The executor shall place a notice that the account will be so open for inspection by advertisement in the Government Gazette and in a newspaper circulating the district in which the deceased was ordinarily resident at the time of his death.

Section 42(1) of the Administration of Estates Act provides that the Conveyancer will need to lodge a certificate with the Registrar of Deeds, confirming that the transfer is in accordance with the liquidation and distribution account, which account has laid for inspection and that no objections thereto has been received. A transfer therefore cannot take place before the prescribed inspection period for the L&D has passed.

The Conveyancer's fees for attending to the transfer, costs for obtaining any required clearance certificates, and any additional applications that needs to be brought, shall be borne by the estate. If there is a cash shortfall in the estate, the heirs may elect to settle the shortfall or to sell the property. There is no transfer duty payable where immoveable property is transferred from the estate to heirs as these transactions are exempt from transfer duty.

Although any person can be nominated as the executor of a deceased estate, only a Conveyancer can attend to the registration of immovable property in the Deeds office. Rauch Gertenbach attends to the transfers of property in deceased estates where the firm is the nominated executor as well as in estates where the transfers are referred to us by independent executors.

Contact us at [email protected] or 044 601 9900 for any queries relating to deceased estate transfers or the administration of deceased estates. www.rgprok.com

Article by: Aleida Kraamwinkel

Attorney & Conveyancer / Prokureur & Aktebesorger

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