B Lubbe & Associates Attorneys B Lubbe - Table View Based Litigation & Divorce Attorneys

“In the summertime, when the weather is high, you can stretch right up and touch the sky.” (Mungo Jerry)

Summer’s here with its blue skies, happy holidaymakers from around the country and the world, and, as always, an upsurge in demand for houses. If you’re going to capitalise on this seasonal upswing, start planning your sales strategy now with our simple, practical Seller’s Checklist below.

Follow these 10 steps for a successful sale:

1. Ask yourself “What’s my goal and how will I get there?”

The first step is to outline your strategy, starting with your end goal. Of course, all sellers want to get the best price and to get paid out as quickly as possible, but brainstorm the specifics. What price do you actually want to achieve? Define your perfect buyers (a critical and much-overlooked step) and think about how you’ll find them. Which estate agent should you employ? And so on…

It pays to bring us in from the start. Not only can we help you find the right agent for the job, but we’ll also tell you what prices are being achieved in your area and share our thoughts on how to avoid the over-pricing trap – a common mistake which can taint a property for months, or even years.

We’ll also outline the whole sales and transfer process for you from a legal perspective, highlighting both the potential pitfalls to watch out for, and the many ways in which you can help make the whole process as smooth, quick and hassle-free as possible.

2. Give notice to your bondholder

If you have a home loan, remember that some banks will charge an early settlement penalty unless you give them 90 days’ written notice.

3. Prepare a cashflow projection

Get your finances ready to cover all your selling costs, including:

Compliance certificates and any repair work needed to get them issued.
Bond cancellation fees (if you have a home loan).
Final municipal accounts (rates, refuse, sewerage, and water) and, if your property is in a sectional title scheme or Homeowners Association complex, outstanding levies.
CGT: Plan for possible Capital Gains Tax on your profit (subject of course to exemption thresholds).
Estate agent’s commission is normally paid out by the conveyancer on transfer – but don’t lose sight of it when you’re dreaming about how to spend the proceeds!

4. Spruce up your property

Pretend you’re a house hunter seeing your property for the first time:

What’s its “kerb appeal”? How about its “front door appeal”? First impressions can make or break a sale, so ask yourself “what will potential buyers see when they first drive up to my property, park, and walk through the garden into my house?” Imagine being greeted by a neat, tidy, colourful garden with a sparkling pool, bright and airy rooms with homely wafts of fresh air and brewing coffee – get this bit right and you could seal the deal in the first few minutes of a viewing.
Declutter and tidy up, both inside and out, particularly on viewing and show days – the hassle is well worth it.
To give your property that all-important feeling of being well maintained, find and fix small issues like leaky taps, peeling paint, dark musty corners, scruffy gardens, murky swimming pools and the like. Deep clean if there’s any risk of doggy smells or stained carpeting spoiling that positive first impression.
And last but not least, we come to a deal breaker of note. Many a sale has been lost purely because of old, unwelcoming bathrooms or kitchens. Spruce them up now: repaint, retile or renovate completely, if necessary.

5. Start getting your paperwork together

To speed up the transfer process when you do sell, and in case potential buyers ask to see them before offering, make a start now on putting these basics together:

Your original title deed (or a copy from your bank if the original is held as security for a bond). If the original has been lost, we’ll be able to get an early start on obtaining a replacement for you.
Your ID (and your spouse’s, if you own the property jointly or are married in community of property).
Approved building plans and any compliance certificates you already have.
A recent municipal rates account showing you’re up to date.

6. Make sure your property is compliant

Find out what compliance certificates you will need early so you have time to fix any issues:

Electrical compliance certificate.
Plumbing/water installation compliance certificate (required in Cape Town – check whether your local authority has any similar provision).
Gas compliance certificate if you have a gas installation.
Electric fence certificate (if applicable).
Beetle clearance certificate where needed.

7. Complete the disclosure form

You’ll need to sign a mandatory disclosure form in which you must list all defects or issues you know about, such as damp, leaks, structural issues, boundary disputes, unapproved alterations and the like.

8. Don’t sign blind

Most importantly, when you do get an acceptable offer, don’t sign anything until we’ve checked it all out for you. The terms and conditions in the sale agreement (often titled “offer to purchase”) become binding as soon as you sign. There’s no going back and many a seller has regretted “signing blind”. Even “standard” clauses may come back to bite you because every sale’s different, and every seller has their own areas of risk.

9. Nominate the conveyancer

It’s your right as seller to choose the conveyancer, so don’t let anyone convince you otherwise.

10. Communication is key!

Remain in constant touch with your agent, with us, and with the buyer. Quick responses to requests for documents or signatures can save days or even weeks in the transfer timeline.

In closing…

Selling a property doesn’t have to be stressful. Work through this checklist step by step and keep us constantly in the loop to avoid delays, disputes, and unwelcome surprises.

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.

“Raising kids is part joy and part guerilla warfare.” (Ed Asner, actor with a great sense of humour!)

A game-changing judgment from our Constitutional Court sets out new rules for parental leave.

The joy of becoming parents, and a father’s leave dilemma

The birth of a couple’s first child presented them with both a bundle of joy and a practical dilemma. Dad wanted to be the baby’s primary caregiver while his wife carried on running her two businesses, so he asked his employer for four months’ parental leave. “Sorry,” said his boss, “the law only allows you ten days”. In the end he had to take six months’ unpaid leave – which came with some unhappy financial and career consequences.

Off to the High Court he went. That Court’s declaration of invalidity of the relevant provisions in the Basic Conditions of Employment Act (BCEA) and Unemployment Insurance Fund (UIF) Act has now been confirmed by the Constitutional Court – with some important modifications.

Let’s start with a quick look at how the current wording of the two Acts creates an inherent inequality between parents.

Out with the old: Different rules for mums and dads

In the far off “bad old days”, many expectant mothers had no job security or entitlement to maternity leave. That gradually changed for the better over many years, but even after a general entitlement to maternity leave was introduced it was, as the name suggests, available to women only. Then in 2020 came the brand-new and widely welcomed concept of “parental leave”, which brought fathers (and other non-birth parents) into the fold.

It was ground-breaking at the time but still not perfect, in that while biological birth mothers were entitled to “maternity leave” of at least four consecutive months, fathers (and other non-birth parents) got “parental leave” of only ten consecutive days. Adoptive leave and commissioning (surrogacy) leave was ten weeks for one parent but only ten days for the other. The UIF Act inevitably mirrored these inequalities.

In with the new: Parity for parents

The High Court found these discrepancies to be unconstitutional, and the Constitutional Court has now agreed. It’s given Parliament thirty six months to sort out the invalid provisions (new legislation is reportedly already in the pipeline), and in the interim the following changes apply:

One parent employed: Where only one parent is employed, or in the case of a single parent, that parent gets the full four consecutive months’ leave. If the parent is an expectant mother, she can start her leave up to 4 weeks pre-birth (or earlier if medically certified). Otherwise, it starts on the day of birth.
Both parents employed: Where both parents are employed, they get a total of four months and ten days of parental leave: the sum of what used to be the mother’s four months and what used to be the father’s ten days. This total can be shared between them as they agree, taking it consecutively (one after the other) or concurrently (together), or a mix of consecutive and concurrent. But however they split it, each must take their portion of leave in one single sequence of days. If they can’t agree on the leave split, it must be as close as possible to 50/50. Shared leave must be completed within the four-month period.
Compulsory periods: There are no changes to the compulsory no-work period for the birth mother – a six-week recovery period after birth during which she may not work unless medically cleared. In the event of either a miscarriage during the third trimester, or a stillbirth, the birth mother must get the same six-week recovery period.
Adoptive leave and commissioning (surrogacy) leave: The same equal splits now apply to all parents – natural, adoptive and commissioning. A provision limiting adoptive leave to children under two years old was declared invalid and unconstitutional, but remains in place for now, with the Court leaving Parliament to decide on an appropriate age limit.
Other “parties to a parental relationship”: Leave in the shared pool applies only to “parties to a parental relationship”, defined as people who have assumed parental rights and responsibilities under the Children’s Act.
Notice to employer: Employed parents must still give their employers at least four weeks’ notice (some sections refer to “one month” just to confuse the issue!) of their intention to take leave. If that’s not practical, notice must be given “as soon as reasonably practicable”.

Are you entitled to paid leave, and what about UIF?

Although you now have extended job security protection, you are still not entitled to paid parental leave unless your employment contract provides for it (common in larger corporates), or if a company policy or a collective agreement provides for it.

Better news is that the UIF allows you to claim for maternity and parental leave benefits, but currently still with restrictions mirroring the BCEA’s. The Court declared the relevant sections of the UIF Act invalid but again left it to Parliament to sort out, so it seems that nothing changes there for now.

An important note for employers

Review all your employment contracts, company policies and procedures to ensure compliance with these new rules. Communicate them to your employees to ensure there are no misunderstandings and no unrealistic expectations – not all the media reports and online articles on this new development are accurate!

“A family name holds the music of generations – it’s the first inheritance we receive.” (Attributed to Irish poet-philosopher John O’Donohue)

The Constitutional Court has just confirmed (with some significant adjustments) last year’s High Court ruling that both partners in a marriage have equal rights to choose their surname.

Previously, a woman – and only a woman – could choose when marrying to take her spouse’s surname, or to retain her own surname, or to assume a double-barrelled surname (her own surname with her husband’s surname).

However, if a man wanted to do the same (to adopt his wife’s surname or a double-barrelled surname) he had to apply formally to the Department of Home Affairs (DHA) and provide “good and sufficient reason” for wanting to change. The problem with that is that the reason had to be related to “a change in the marital status of a woman” – an impossible ask for men.

A tale of two couples

The Constitutional Court, and the High Court before it, grappled with this issue via applications from two couples whose attempts to depart from the “only women can choose” rule had been thwarted by the existing wording of the Births and Deaths Registration Act.

The couples’ reasons for wanting to depart from the norm will ring a bell with many. One couple wanted their new family to bear the wife’s maiden name as it symbolized her connection to her parents, who had died when she was young. The other wanted both spouses to use a combined (double-barrelled) name so that the wife’s maiden name, which is important to her, was not lost.

Our apex court has now confirmed that this unequal treatment was unconstitutional because it discriminated on the basis of gender, infringing on their rights to equality and dignity.

So, what are your choices now?

In a nutshell, the Court’s order employs gender-neutral language to ensure that everyone, regardless of gender or type of marriage, now has the same automatic rights when it comes to assuming a new surname.

Although the declaration of invalidity is suspended for 24 months to enable Parliament to either amend existing legislation or to pass new legislation, the Court’s ruling includes the provision that in the interim everyone can, as of right and without needing DHA authority:

After marriage, take their spouse’s surname or, having taken it, resume a previous surname.
After marriage, divorce or the death of a spouse, resume a previous surname or create a double-barrelled surname.

Any other surname changes (including changes to your children’s surnames) still require application to DHA.

To avoid any confusion, it’s a good idea to tell the marriage officer before you marry what names you’ve chosen so the correct choices appear in the marriage register and on your marriage certificate.

Give us a call if we can help with anything.

“Forewarned is forearmed.” (Wise old proverb)

Government keeps assuring us that the long-delayed AARTO (Administrative Adjudication of Road Traffic Offences) system will finally begin its full national rollout on 1 December 2025.

Is this another false start or the real thing this time?

There have been so many false starts to AARTO over the last fifteen years that many of us will no doubt take the attitude “I’ll believe it when I see it” … Particularly with all the speculation that the implementation could be delayed, varied or even blocked again by legal and other challenges.

But let’s not be caught unawares here – this time, the first phase really could be shooting out of the starting blocks on time, so it seems a good idea to start prepping for the changes. Particularly now that the annual holiday season, with its surge in year-end travel, speed trapping and roadblocks, is almost upon us.

In a nutshell, the way traffic fines work is about to change for millions of drivers, including private motorists, fleet operators, delivery drivers, taxi operators, owners etc.

Here’s what you need to know on a practical level.

Firstly, driver demerits are still nine months away

Sensational, click bait headlines and fake news reports notwithstanding, the “driver demerit points” system, with its licence suspensions and cancellations for repeat offenders, is only scheduled to kick in on 1 September 2026.

So what will actually change on 1 December?

If your vehicle is registered in, or if you drive in, any of the 69 major municipalities and metros countrywide scheduled for commencement on 1 December 2025, you’ll be subject to these new rules from day one, with the other 144 areas set to commence on 1 April 2026:

Fines will become administrative, not criminal: Traffic infringements such as speeding, traffic light, licence, parking offences and so on will no longer be handled in criminal courts. Instead, the RTIA (Road Traffic Infringement Agency) will run everything as an administrative process.
Electronic notices: Infringement notices, courtesy letters and enforcement orders can now be sent by email or SMS (even by fax if you still list a fax number) as well as by post or personal service. Not receiving notices won’t be a defence – legal service will be deemed to have been made whether you receive/open them or not. The onus is on you to make sure you get them by updating all your contact details with your licencing authority now – and by configuring your spam and junk filters to let them through.
Discounts and deadlines: A 50% discount will be your reward for paying within 32 days of receiving an Infringement Notice. Miss that window and you lose the discount. You may then get a Courtesy Letter allowing you another 32 days to pay the full fine plus a fee. If you still don’t pay, an Enforcement Order is issued.
Enforcement orders will block licence and permit renewals: Unpaid fines that reach the “enforcement order” stage are recorded on the National Contraventions Register. If your name appears on the register, you are automatically blocked from registering a vehicle and from renewing your vehicle licence disc or driver’s licence/professional driving permit.
If you aren’t the driver: You must nominate the actual driver within 32 days to prevent the fine being attached to you. Keep a copy of all drivers’ driving licences so you have a record of the infringer’s full names and I.D. number.
Businesses in particular should be able to identify the drivers of their vehicles at all times so that fines can be allocated correctly. Also, review all your staff training processes, vehicle policies and disciplinary procedures accordingly.
Scammers are reportedly already issuing fake notices so be sure to pay on authorised payment portals only.
Know your rights but act quickly: You can still make representations or appeal against fines you disagree with, but strict deadlines apply.

Johannesburg and Tshwane motorists

Note that although Johannesburg and Tshwane motorists have already lived with AARTO’s pilot fine system for years, from 1 December 2025 they will move onto the amended national AARTO framework and can expect stricter electronic service, updated fine tariffs, stronger enforcement order blocks on licence renewals, and new proxy nomination duties.

Bottom line: if you need our help with anything, please get in touch immediately!

“Don’t wait to buy real estate. Buy real estate and wait.” (Will Rogers)

Spring is in the air and, as the annual uptick in property sales kicks in, let’s address two questions commonly asked by both sellers and buyers who are unsure about exactly what happens after they sign their sale agreement:

How does the transfer process work?
How long does it take before the seller gets paid and the buyer becomes the new registered owner?

Let’s begin with this simplified “in a nutshell” flowchart of the transfer process:

How long does it all take?

How long is a piece of string? If everything goes swimmingly and the bureaucratic stars truly align in your favour, the total timeframe from signing the sale agreement to popping the champagne could be as little as eight weeks. On average, however, it’s safer to work on no less than ten to 12 weeks, and possibly a lot more.

What could delay things? This is a complicated process involving a disparate array of role-players and a host of opportunities for unforeseen delay. Some of the more common sources of delay (and frustration!) centre on bond approval, bank processes, SARS and municipal delays, clearance certificates and repairs, lost title deeds, intervening public holidays, and Deeds Office backlogs. But the list really is endless.

Bottom line: you need professionals in your corner to protect your interests and to move the process along as quickly as possible. We’re here to help!

“If you’re flogging a dead horse, make sure you’re not riding it.” (Josh Stern)

Creditors and company directors alike need to know how best to deal with a company in financial distress. Both should learn to recognise the difference between an enterprise that has failed beyond resuscitation, and one that, given a chance, can be returned to solvency and success.

With that in mind, the law provides you with two main options:

Liquidation: Liquidation is the winding up of a company that cannot pay its debts. A liquidator is appointed to sell all the assets and to distribute the proceeds to creditors in their order of legal preference. When the business is hopelessly insolvent and has no reasonable chance of recovery, it ensures an orderly closure and fair distribution to creditors. There’s seldom a good outcome for creditors, especially “concurrent creditors” (holding no security or preference) who can generally consider themselves lucky to recover anything more than a few cents in the rand on their claims. Moreover, at the end of the winding-up, the company ceases to exist and is lost to all role-players — employees, creditors, suppliers, the taxman and indeed the economy as a whole.
Business rescue: This process is designed to rehabilitate distressed companies by protecting them from attack by creditors while a business rescue practitioner (BRP) develops and implements a plan to restructure debts and operations. The idea is to allow the company to continue trading, save as many jobs as possible, and provide a better return to creditors than liquidation would. Critically, however, there must be a realistic prospect of turning the business around and saving the company. If there isn’t, as we shall see below, applying for business rescue can land the applicants in some very hot water.

The dodging debtor and the creditor’s lament

There’s nothing worse for a creditor: after chasing a recalcitrant debtor from pillar to post and finally cornering them, you’re stymied at the last hurdle by the director’s last-ditch application for business rescue.

“Tough”, the director tells you. “That’s the end of your hunt for payment.” When your blood pressure has dropped a bit, you take legal advice — can this really be correct?

In most cases, yes, you are stuck with waiting while a BRP is appointed and a rescue plan formulated and put to you and other role players for consideration. If the application is genuine, you might even recover something worthwhile. At best you could also retain a long-term customer.

But if this is just another debt-dodging or delaying exercise, our courts will come to your rescue. A recent High Court decision not only set aside business rescue proceedings launched in bad faith but also penalised those responsible by hitting them in their own pockets — hard.

A bad faith application backfires, badly

A property-owning company, in a settlement agreement made an order of court, agreed to a creditor selling its property and keeping the proceeds in full and final settlement of its claim. An auction sale was arranged by the creditor, but on the eve of the sale the director of the property company commenced business rescue proceedings and a BRP was appointed.

The BRP sold the property for R3.4m (to the same buyer who’d offered R3.25m at the auction) and prepared a business rescue plan which was duly adopted. The real fly in the ointment was presumably the fact that the plan included remuneration of over R2.2m for the BRP — a sum grossly disproportionate, said the creditor, to the limited scope of her duties.

Having none of that, the creditor applied to the High Court to set aside the business rescue proceedings. The Court was quick to agree to this request, commenting that the company had no operations, income, or employees. There was no viable business to rescue.

More specifically (emphasis supplied): “The business rescue proceedings were accordingly initiated in bad faith, amounting to an abuse of process … the BRP was remunerated extensively without a proper accounting … no reasonable prospect of rescue existed, procedural requirements were ignored, and it is just and equitable to set the resolution aside.”

Punitive costs and a R2.2m fee down the tubes

No wonder, then, that the Court expressed its displeasure at the actions of both the director and the BRP by ordering them to personally pay all costs (jointly with the company itself, for what that’s worth) on the punitive attorney and client scale (much higher and more severe than the normal costs scale). The BRP, in particular, must be mourning the additional loss of her R2.2m fee.

The bottom line

As a creditor, don’t take it lying down if a company tries to dodge or delay paying you through a misuse of the business rescue procedure.

As a director or BRP, be careful never to be seen to abuse the process. It’s not a “get out of jail free” card to delay liquidation or to relieve creditor pressure. As the Supreme Court of Appeal has put it: “Business rescue proceedings are aimed at restoring a company to solvency, and are not to be abused by a company with no prospects of being rescued but mainly to avoid a winding-up or to obtain some respite from creditors.”

The rules and process relating to business rescue and liquidation can be complex, but we’re here to help you navigate them if needed.

“This [the Stalingrad Strategy] is a strategy of wearing down the plaintiff by tenaciously fighting anything the plaintiff presents by whatever means possible and appealing every ruling favourable to the plaintiff. Here, the defendant does not present a meritorious case. This tactic or strategy is named for the Russian city besieged by the Germans in World War II.” (Judges Matter website)

Divorce disputes are of course intensely personal and emotionally charged affairs — and when feelings run high the resultant fallout can mean protracted, bitter, and costly litigation.

If you are being subjected to a barrage of such litigation, take heart. In balancing our constitutional right to access the courts against the need to prevent people from abusing court processes with endless and meritless litigation, our law provides for “vexatious litigants” to be stopped dead in their tracks.

A recent pair of High Court decisions (featuring the same parties and the same divorce dispute, but in two different battles) provides a textbook example.

A saga of litigation, complaints, threats, and blackmail

This 11-year saga dates from the start of divorce proceedings in 2014, with the financial aspects of the divorce being finalised only in 2020. The ex-wife was awarded a total of R16.8m in accrual, maintenance, and costs. The ex-husband’s property-owning trust was held to be his alter ego, and that opened the door for the house held by the trust (a valuable property in an upmarket Cape Town golf estate) to be sold as his asset.

He responded with a concerted campaign of unrelenting litigation, complaints, and threats — all aimed, the Courts have now determined, at overturning the divorce order.

The list of his serial litigation and intimidation tactics is both long and extraordinary, but suffice it to say that a flood of applications of all sorts to a wide variety of courts (all the way up to the Constitutional Court) is just the tip of the iceberg. He has also lodged professional complaints against all the attorneys and advocates involved in this matter (including his own legal team) and against the Divorce Court Judge. Not even his own financial expert escaped a formal complaint. Allegations of perjury, fraud and collusion abound. He has threatened massive lawsuits (for R210m and R190m to date) against various legal representatives. He was even found to have resorted to blackmail.

Neither his singular failure to reap anything but defeat from any of these endeavours (barring a few minor skirmish successes, and noting that some of the more recent matters remain pending), nor the slew of costs orders made against him (at least one of them on the punitive attorney and client scale), seem to have deterred him in the slightest.

His latest rearguard action, a failed attempt to postpone the auction sale of his house, has earned him yet another defeat and another costs order, with the cherry on top being his being declared a “vexatious litigant”. He can now no longer launch legal proceedings without specific High Court authority to do so.

All’s fair in love and lawfare? Not so fast

As the Court put it: “A fundamental doctrine in our law is, there must be an end to litigation … nobody should be permitted to harass another with second litigation on the same subject as such litigation can be viewed as an abuse of process.” Our courts accordingly have the power to declare such a person a “vexatious litigant”, thus restricting them from launching any new legal proceedings without specific court authority.

To have your opponent declared vexatious, you will need to prove that the person “has persistently and without any reasonable ground instituted legal proceedings in any court or in any inferior court, whether against the same person or against different persons.” There are two legs to that, and note that you can’t stop anyone from pursuing normal appeal and review processes — there must be some abuse of judicial process.

You may also be able to get an order that your opponent provide security for your costs. Although, in this particular matter, the ex-wife was unable to convince the Court to grant her such an order.

“If you suspect deceit, hit delete!” (Online cybersecurity slogan)

October is Cybersecurity Awareness Month, a good time to note that as cybercrime continues to grow, more and more businesses and individuals are falling victim to the dreaded “BEC” or “Business Email Compromise” fraud.

The million-dollar question: Who takes the hit?

Typically in a BEC fraud, email or other electronic communications between a creditor and debtor (often a seller and buyer, or service provider and client) are hacked by criminals, who con the debtor into paying what they owe into the fraudster’s bank account. By the time the parties realise they’ve been had, the criminals are long gone, and all that remains is the million-dollar (sometimes quite literally!) question: “Which one of us takes the hit?”

Until now we have been faced with conflicting High Court decisions on this point, but now the SCA (Supreme Court of Appeal) has settled it: The risk is the debtor’s.

A car dealership must pay twice over

It was a classic case of BEC: A dealership bought two Hyundai Nissan NP200 vehicles from another dealership for R145,000 each. The seller issued invoices showing its banking details. The buyer paid by EFT and sent proof of payment to the seller, which happily (without checking that the funds had actually landed in its account) delivered the vehicles to the buyer.

As always with these cases, one can imagine the sinking feeling that greeted the parties’ realisation that the seller’s emails and the attached invoices had been intercepted, and the banking details subtly altered. As a result, the buyer had paid the full R290,000 to the criminals’ bank account.

Long story short, a real seesaw of a legal battle ensued. The buyer said, “I’ve already paid you”. The seller retorted, “No you haven’t, you paid the criminals,” and sued the buyer for the R290k. The seller won in the Regional Court, lost on appeal to the High Court, but then turned the tables again and celebrated victory in a further appeal to the SCA.

Verify, verify, verify

The SCA’s findings amount to this:

The onus is always on you as buyer to prove, on a balance of probabilities (i.e. more likely than not), that you have paid the seller.
When you pay by EFT, you must show that the seller actually got the money. In other words, that you paid into the correct bank account.
Creditors (recipients) have no legal duty to protect debtors (payers) from the possibility of their accounts being hacked where the debtor could have taken steps to protect itself but failed to do so.
The obligation therefore is on you as debtor to ensure that the bank account details in the invoice are in fact correct and verified because “it is the debtor’s duty to seek out his creditor”. Fail to follow basic verification steps, and your payment to the wrong account does not remove your liability to pay the debt — you still have to pay your creditor.

Bottom line, the buyer in this case should have verified the banking details given in the emailed invoices before paying. It didn’t, so it couldn’t prove that it had paid into an account authorised by the seller.

It must pay the seller the R290k, with interest and doubtless substantial legal costs.

Don’t make the same mistake

These scams grow more sophisticated by the day, fuelled now by AI-perfected deep fakes, cloned websites and social engineering. Treat all emails, all electronic messages, and all electronic invoices with great suspicion — even if they appear to come from businesses you have known and trusted for decades. Verify bank account details (preferably by speaking to the creditor directly on a number you know to be correct) before paying a cent.

Property sales are particularly vulnerable

Be especially vigilant when buying or selling property because these high-value sales are a particular focus for cybercriminals worldwide. There are rich pickings in the offing, and the opportunities for baddies to intercept and falsify emails is multiplied by the range of trusted role players involved — typically several sets of attorneys, estate agents, and banks as well as the buyers and sellers themselves.

A final note on online security

Let’s end off with a note to everyone: Keep reminding your whole team (not just your accounts department) that securing your computer and email systems against bad-actor compromise is no longer a nice-to-have, it’s essential. This whole unhappy saga could all have been avoided if everyone involved had followed basic security protocols. Prevention is always better than cure.

Give us a call if you need any help.

“All that lives must die, passing through nature to eternity.” (William Shakespeare, in Hamlet)

Master’s Office records suggest that less than a third of us leave behind a will when we die. That’s astonishing, given the fact that death is one of the few absolute certainties in our lives.

Why do so many of us put our families at risk like this?

“I don’t have a will because…”

It’s easy to find excuses for doing nothing about a will, with surveys conducted both locally and overseas suggesting that people’s failure to act is normally rooted in one or more of these common excuses:

We’ll help you structure a will and estate plan that honour your last wishes and provide proper protection for your loved ones.

“You aren’t buying a house, you’re buying a lifestyle.” (Anon)

As more and more residential properties are subdivided and developed, an increasing number of homes are effectively cut off from direct access to the nearest public street or road.

That’s where the “panhandle” comes into play, a narrow strip of land (looking on diagrams very much like the handle of a pan, hence the name) which gives the needed street access to the “landlocked” property. The panhandle can be owned by the property using it as an access road, or it can be a right of way in favour of the property over neighbouring land.

A recent High Court run-in between two neighbours over a panhandle right of way highlights the mistakes made by the various parties involved, and so provides a neat “must do” checklist for everyone in such a situation – buyers, sellers and neighbours alike.

“Wait, what right of way?”

You can imagine the reaction of a property buyer when he was told, only after taking transfer, that his nice little plot was lumped with a registered servitude. Not only did he have the neighbour freely crossing his land at will via a four-metre wide panhandle road, but he also found himself blocked from part of his own land by the neighbour’s gate.

Luckily for the buyer, the servitude turned out to be a temporary one. The wording stated clearly that it was to provide a right of way only until alternate access became available to the neighbour. And a consolidation of neighbouring properties (involving the creation of eight mini subdivisions for a property development) had indeed opened up such an alternative access route.

The buyer accordingly asked the High Court to declare the servitude lapsed, and to order that all “barriers and obstructions” to the panhandle be removed. His neighbour fought back, arguing amongst other things that he had paid R35,000 to the original owner of the buyer’s property as part of a verbal agreement to increase the panhandle’s width from four to six metres.

The neighbour’s problem here is that a servitude has to be in writing, so his verbal agreement with the original owner for a six-metre servitude was unenforceable – certainly against this buyer who had never agreed to it. For a servitude to bind a subsequent buyer of the property, it needs to be registered against the title deed.

The Court accordingly held that the registered four-metre servitude had lapsed and that the supposed six-metre servitude agreement was unenforceable against the buyer. End result, the neighbour loses his right of way and must remove all “obstructions” (the gate, presumably) on it.

Buyers, sellers and neighbours: Mistakes to avoid

Buyers: Don’t only wake up after transfer to the fact that your new property is subject to a right of way or other right of access – it could do serious harm both to your property value and to your enjoyment of it. Check the title deed before making an offer. As we shall see below, relying on the seller to disclose a servitude during the sales process can be wishful thinking…

Sellers: The seller in this case didn’t disclose the servitude, as he was obliged to, in the mandatory disclosure form – the form that every property seller must sign and provide to the buyer. In it a seller must disclose not only any known property defects, but also things like encumbrances, zoning and title deed restrictions, unapproved alterations or additions, and so on. Presumably the seller’s omission in this case was just an oversight, but he could still easily have been sued by the buyer. It’s vital that you always complete that form fully and accurately.

Neighbours: As the neighbour in this case found out to his cost, if you are reliant on a right of way, make sure it’s granted in a written and registered servitude. He might perhaps have been able to enforce his verbal agreement against the original owner, but it was worthless against a subsequent buyer who knew nothing of the agreement.