“A body corporate’s lot is not an easy one.” (With apologies to Gilbert and Sullivan)
One of a body corporate’s core functions is to collect current and outstanding levies. When a section owner becomes uncooperative, recovery can turn into a difficult, costly and lengthy process. Good news for trustees is that it just became a little easier after a recent High Court ruling which authorised a body corporate to cut off an owner’s electricity for failure to pay his consumption charges.
“The pandemic made me do it”
An owner of an apartment in an 86-unit sectional title scheme in Sandton fell into arrears in 2021. Two years later he owed a total of R107,940 … R16,610 of which was for unpaid electricity charges.
The body corporate sued him, asking the High Court not only for a monetary judgment but also for authority to cut off his electricity supply pending payment. It pointed out that the scheme pays Eskom for its electricity and then invoices unit owners for consumption recorded on their individual meters. That put all owners at risk of being cut off by Eskom if the body corporate was unable to pay its monthly account.
The owner admitted owing the amount claimed, which he said had resulted from a loss of income as a result of the Covid-19 pandemic. He offered to pay off the arrears in instalments of R8,000 p.m. and opposed the application to cut his power on constitutional grounds.
The Court authorised the body corporate to disconnect the owner’s electricity supply until he pays the portion of the arrears relating to electricity.
How the body corporate won – follow this recipe
As the Court put it: “There is tension between competing interests in this matter: the right of the Body Corporate to be reimbursed for payments made on behalf of the unit owners and the right of the owner to be supplied electricity.”
In other words, it wasn’t a foregone conclusion that the body corporate would automatically succeed here. So don’t just assume that you now have carte blanche to force payment of arrears by cutting off electricity.
Rather follow the recipe for success that worked for this body corporate:
- Don’t act arbitrarily: The owner relied partially on constitutional protection against “arbitrary deprivation of property”, but the body corporate was able to counter that it wasn’t acting arbitrarily at all. On the contrary, it was asking the Court for permission to disconnect. Arbitrary disconnection not authorised by a court order will in any event put you in the wrong and risk the owner obtaining a “spoliation” order. That would force you to switch the power back on immediately without any investigation into the rights and wrongs of the matter.
- Give proper notice of disconnection: The body corporate had ensured procedural fairness by giving the owner proper notice which spelt out the consequences of non-payment of his levies (including application for a court order to disconnect electricity).
- Make sure all your resolutions are in order: The Court analysed the various resolutions passed by the body corporate in respect of imposition of levies and collection of arrears before confirming that they were enforceable against the owner.
- Proving “prior agreement”: The owner argued that he had never agreed to disconnection on non-payment, but the Court held that there was indeed a tacit (inferred) agreement by him to repay the body corporate for its payments to Eskom, and that he was bound to the scheme’s rules and regulations regarding enforcement. You need to have all your paperwork in order to achieve the same result.
- Balancing competing interests: You will need to persuade the court that your scheme’s interests trump those of the owner. In this case, the scheme’s financial stability was put at risk, exposing all owners to the risk of disconnection – while the defaulting owner continued to benefit from electricity at the expense of the other owners.
An important caveat
Although the body corporate had applied for an order to disconnect electricity until the full judgment amount of almost R108k had been paid in full (i.e. including the levy portion of R91k), the Court limited its disconnection authorisation to recovery of only the arrears for electricity consumption (plus interest). It gave no reasons in its judgment for not linking reconnection to payment of the full R108k – but its comment that the electricity non-payment was the most prejudicial to the scheme suggests that it will always be safest to assume that your rights to disconnect electricity may be similarly limited.
Whether you’re a body corporate or a sectional title owner, navigating situations like this requires carefully ticking all the legal boxes. You know who to call!
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
“Good in parts” (Like the curate’s egg)
Transfer duty threshold increased by 10%
You pay no transfer duty if the property you are buying sells for less than the set threshold. The threshold wasn’t increased last year, so this year’s proposed 10% increase from R1,100,000 to R1,210,000 (from 1 April) is a welcome adjustment for inflation.
With all the brackets adjusted upwards by 10% as per the table below, properties at every level become that much more affordable to buyers, and by extension sellers will also benefit.
Source: SARS
The ongoing VAT increase saga
The proposal to increase VAT from 15% to 16% over two years, with a 0.5% hike planned to take effect on 1 May 2025 and the other 0.5% on 1 April 2026, has met with fierce resistance from business, consumers and trade unions – and from the opposition benches in parliament.
As to when we can expect clarity on whether government will be able to muster enough support in parliament to convert this and its other proposals into law, we are sailing in uncharted waters and only time will tell. Hold thumbs!
The unchanged tax tables, and no new taxes
Individual taxpayers: Your tax rates (and the associated rebates and medical tax credits) are unchanged, so we can at least be thankful that there were none of the major increases that had been hinted at.
What will hurt us is that for the second consecutive year there is no inflation adjustment to the tax brackets, which means that “fiscal drag” (also referred to as “bracket creep”) will leave you paying more tax if you receive an increase – particularly if it pushes you into a higher tax bracket.
Trusts: Special trusts are by and large taxed as individuals, but other trusts are taxed at a flat rate of 45% – again unchanged from last year.
Source: SARS
Corporate and other taxes: Corporate and dividend tax rates, capital gains taxes, donations tax and estate duty all remain unchanged. With all the pre-Budget speculation about possible increases in these taxes, perhaps coupled with a new wealth tax and/or new taxes to fund the NHI (National Health Insurance), this is good news.
Source: SARS
“Sin taxes” up – the details
Increases in sin taxes were mostly above inflation at 6.75% for alcohol and 4.75% – 6.75% for tobacco products – see the table below for full details.
Source: National Treasury
How much will you be paying in income tax, petrol and sin taxes? Use Fin 24’s four-step Budget Calculator here to find out.
Note: There is (at time of writing) uncertainty as to whether or not the Minister will proceed with his proposed tax changes – even if he fails to garner sufficient political support to ultimately ensure their adoption by parliament. If he does proceed, it’s equally unclear how long they will be valid for. Regardless, expect a lot of political manoeuvring and perhaps some major changes in the weeks ahead!
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
“All that glisters is not gold” (William Shakespeare in Merchant of Venice)
Buying or selling a home could be one of the most important financial decisions you’ll ever make. It’s an exciting time – but don’t lose sight of the need to tread with care.
A key player in the process is likely to be an estate agent, to whom you will be entrusting one of your most significant assets. It goes without saying that you need to choose someone both competent and trustworthy.
Fool’s gold?
Be particularly careful here, because not everyone who claims to be an estate agent is genuine – and you will be in for a world of pain if you inadvertently trust your property transaction, and your money, to a charlatan. A fake agent may be actively dishonest or merely incompetent, but (in the way of all con artists) is probably first and foremost a persuasive and convincing liar. Lots of “glister”, but absolutely no gold!
Quite apart from the competency angle, just Google a phrase like “fake estate agent sentenced” to get an idea of how much full-on “bogus agent” fraud there is.
Let’s have a look at one recent case.
The Hawks swoop, and a fake agent gets 23 years
A fraudster operating in Bloemfontein and pretending to be an estate agent conned his victim into signing a sale agreement and paying him R100,000 for a house she’d set her heart on. Too late, she discovered that the “agent” was neither registered as such nor entitled to sell the house.
The matter was handed over to the Hawks, and the fake agent is currently serving an effective 23 years’ direct imprisonment. Justice served, and let’s hope the victim, to whom R100,000 is clearly a substantial sum, is also able to recover her hard-earned money from the fraudster.
A timely warning
A timely warning from the PPRA (Property Practitioners Regulatory Authority) in February confirms that, quite apart from the risk of fraud, it’s crucial for your protection to ensure that the agent you decide to work with is properly registered with the PPRA and holds a valid Fidelity Fund Certificate (FFC).
Why is PPRA registration important?
The PPRA is the official body that oversees estate agents and other property practitioners. Registration with the PPRA ensures that:
- The agent operates legally and is subject to the PPRA’s Code of Conduct.
- The agent has met the necessary training and compliance standards.
- You can claim against the Property Practitioners Fidelity Fund for any theft of trust money by an agent with a valid FFC.
Four checks before you engage an agent
Before giving a mandate to an estate agent or agency, it’s important to check that they are legit. You can do this by:
- Confirming their registration and FFC: Ask for proof that the agent and the firm are registered with the PPRA. Request copies of their FFCs and verify their validity for the current year by phoning the PPRA on 087 285 3222.
- Verifying supervision for candidates: If dealing with a candidate property practitioner, confirm that they are working under the supervision of a fully registered agent.
- Checking their trust account: If you pay money to an agent (a deposit perhaps), make sure the firm is registered with the PPRA and has an active trust account held at a registered South African bank. The funds should be deposited into this trust account and not into the agent’s personal or business account.
- Asking us! We can help you with all these checks – and if you aren’t sure who to use, we’ll point you in the right direction.
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
“The minute you read something that you can’t understand, you can almost be sure that it was drawn up by a lawyer.” (Will Rogers, cowboy and actor)
We’ve all seen (and probably ignored) disclaimer notices as we enter shopping centres, restaurants, businesses, hotels, sporting venues and the like. Usually, they read something along the lines of: “All persons enter at their own risk” or “the owner shall not under any circumstances be liable …blah blah blah…”
A legal duty to ensure safety
The restaurant owner in the McDonald’s case we discuss below had accepted that it had “a legal duty to exercise the standard of care expected of a reasonable restaurant operator in the circumstances by ensuring that the premises of the restaurant were safe for patrons to use.”
And therein lies your risk, because that general principle applies to all owners and occupiers of premises which are open to the public. The question is, how well do disclaimer notices really protect businesses from legal claims?
The McDonald’s “slip and trip” case
A customer sued the owner/operator of a McDonald’s in Cape Town. On her way through the restaurant to find a table for a business meeting, she slipped and fell on a recently mopped floor. Her fall was a serious one – in considerable pain, she was carried from the restaurant on a stretcher and underwent operations to her ankle and knee.
She argued that the owners had acted negligently by failing to:
- Keep the floor dry and safe
- Place warning signs showing the wet floor
- Cordon off the wet area to prevent accidents
The owner defended itself both by denying any negligence, and by relying on the disclaimer notice posted at the entrance (bolstered by a “floors may be slippery when wet” sign). It also suggested that the customer had caused, or at least contributed to, her own accident by not keeping a proper lookout, and by walking too fast.
As always, the onus was on the customer to prove her case, i.e. that the restaurant had been negligent, and that its negligence had caused her fall.
In the end, she succeeded in doing both, with the Court accepting that the restaurant hadn’t put up “wet floor” signs to cordon off the wet, slippery area of the floor. This was the nail in the coffin – it hadn’t followed its own cleaning protocols.
The “lady with the mop”
How had the Court reached that conclusion? By applying the “thing speaks for itself” (res ipsa loquitor) doctrine, which says that if the occurrence itself (in this case, the fall) is enough to infer negligence, it’s up to the person being sued to provide a contrary explanation.
The restaurant was unable to give any explanation for the fall which would counter the inference of negligence. The Court noted in this regard that the restaurant hadn’t called as a witness the “lady with the mop”. She had been mopping the floor at the time and was, said the Court, “the only person that could have shed light on whether the cleaning protocols were strictly adhered to.”
This left the Court to hold that the restaurant hadn’t taken reasonable steps to prevent the incident, and that its negligence had caused the fall. Finally, there was no contributory negligence on the part of the customer, so the owner is 100% liable for whatever damages she suffered.
Unless, of course, its disclaimer notice shields it from liability…
“A disclaimer is not an automatic legal shield”
The disclaimer notice read: “All persons entering McDonald’s and using its facilities, including drive-through and parking areas, do so entirely at their own risk. Neither McDonald’s nor it’s (sic) suppliers, employees and or representatives shall be responsible and or liable in respect of any theft and or loss and or damages sustained to property and or the persons of any customer and or employee of McDonald’s whilst on the premises for whatsoever reason. Right of admission reserved.”
The customer did not recall noticing this disclaimer at the entrance, but in any event, as the Court put it (emphasis supplied): “it must be emphasised that a disclaimer is not an automatic legal shield, and must … be evaluated in the context of the overall safety management of the premises.”
Despite the disclaimer, the restaurant would still be liable if it hadn’t taken reasonable steps to guard against the customer slipping. It was unable to put forward an explanation to counter the inference of negligence, and its failure to follow its own safety protocols sealed the deal.
So, disclaimer notices aren’t foolproof. How can you strengthen yours?
No disclaimer will ever be a watertight defence against liability, but you can strengthen yours significantly by understanding what sort of factors courts are likely to take into account when assessing such claims. We share below some tips on how to address each of these risk factors:
- Disclaimers must be conspicuous, clear and visible: A disclaimer hidden in small print or obscured by a door is unlikely to hold up in court, so maximise visibility by placing signs at entrances where they are easily seen by everyone before they enter the premises. Use legible fonts and contrasting colours.
- Plain, simple language is essential: If a disclaimer is too complex or ambiguous, or uses too much legal jargon, courts may interpret it against you or accept that your customers may not have understood it.
- The Consumer Protection Act (CPA): The CPA does not allow disclaimers that exclude “gross” (extreme or total) negligence, and it requires that such notices be conspicuously drawn to the attention of consumers, who must also be treated fairly, reasonably, and justly. We can help you draft signs that comply.
- Disclaimer or no disclaimer, you must still take reasonable safety measures and give warning of any risk areas: Warning signs and proactive safety practices and protocols will reduce your risk of liability substantially.
If you need guidance on drafting effective disclaimer notices tailored to your business, or help with your risk management practices, we’re always here to help.
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
“An ounce of prevention is worth a pound of cure.” (Benjamin Franklin’s warning to fire-threatened Philadelphians in 1736)
Cases of Business Email Compromise (BEC) fraud continue to surge, and recent High Court decisions have confirmed that it’s up to you to verify that you are paying into the correct bank account.
How does BEC work and who is at risk?
BEC fraud involves cybercriminals impersonating your trusted contacts (e.g. suppliers and professional advisors) in fraudulent emails that look genuine. The idea is to trick you into making payment into the scammer’s account.
Everyone’s at risk, but BEC is particularly rife in transactions where large amounts of money are in play. Favourite targets are commercial operations and their customers, as well as all role-players in property sales – buyers, sellers, conveyancers and estate agents.
How do these scams work? For a snapshot of a classic BEC sting, have a look at this recent High Court case…
“But I paid you the R890k!”
Two Cape Town companies, who had been trading happily and successfully with each other for seven years, fell out over who should bear a loss of R886,726.25 after scammers stole the customer’s payment for a consignment of valves. Here’s how it went down:
- The customer had always made payments to the supplier’s Standard Bank account in the past. So far, so good.
- But then, enter stage left, our villain: Joe Scammer. Joe intercepts the supplier’s email correspondence and, pretending to be the supplier’s managing director, asks the customer to make all payments to an Absa bank account from now on.
- The customer asks for a bank confirmation letter, which Joe (still in his guise as MD) gladly supplies.
- Reassured, the customer makes payment to the Absa account. The fraud is only discovered when, three days later, the supplier emails asking for payment.
- Joe is of course now long gone with his loot, leaving customer and supplier to fight it out over who must bear the loss.
Blaming the supplier won’t work – you must “seek out” your creditor
The customer, sued by the supplier for the outstanding amount, contended that the blame lay with the supplier, whose own negligence in failing to secure its IT systems against email interception caused the fraud.
That’s a defence often raised by BEC victims, and indeed our courts have stressed in the past the need for suppliers and professionals to ensure that their own computer systems are properly secured at all times. But it cut no ice in this case.
Rather, said the Court, (emphasis supplied), “it is the debtor’s obligation to ‘seek out his creditor’ and … until payment is duly effected, the debtor carries the risk that the payment may be misappropriated or mislaid.”
The real cause of the loss in this case, held the Court, was not any hacking of the supplier’s emails (if there was in fact a hack – the supplier denied it), but the customer’s failure to take the steps that a “prudent debtor” would have taken to ensure that it was paying into the correct account.
Our unfortunate customer must now pay the supplier, plus a raft of legal costs to boot.
Pick up the phone!
Our courts will have no sympathy for you if you fall victim by not protecting yourself. A factor that counted against our customer here was (emphasis supplied): “the fact, known to any persons in business and making use of computer-based methods of communication and payment, that cyber crime is rampant and that care must be taken at all times to limit its impact.”
The good news is that a few simple preventative measures can provide everyone involved with a strong layer of protection:
- Put in place strong policies and procedures to ensure that your IT systems and emails are secured against breach and interception.
- You, and all of your staff, must remain constantly vigilant against the techniques which the scammers use. They are particularly adept at exploiting trust-based and long-standing relationships, for instance with suppliers you have dealt with for years, and professionals like attorneys, accountants and financial advisors etc.
- Most importantly, perhaps, given the current attitude of our courts, is to always verify payment details via contact with your creditor through another communication system. As our courts have pointed out, “a simple telephone call” can be enough to avoid falling victim to fraud.
If you need help reviewing your fraud prevention and payment verification procedures, please feel free to contact 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.
© LawDotNews
From 1 April 2025, the earnings threshold under the Basic Conditions of Employment Act (BCEA) will increase, impacting not only the BCEA but also employee protections under the Labour Relations Act (LRA) and Employment Equity Act (EEA).
Broadly speaking, employees earning less than the threshold amount are entitled to stronger labour protections.
The new threshold
The threshold rises by only 2.9% this year, increasing from R254,371.67 per year (R21,197.64 per month) to R261,748.45 per year (R21,812.37 per month).
What counts as “Earnings”?
“Earnings” (for this purpose only) means “the regular annual remuneration before deductions, i.e. income tax, pension, medical and similar payments but excluding similar payments (contributions) made by the employer in respect of the employee: Provided that subsistence and transport allowances received, achievement awards and payments for overtime worked shall not be regarded as remuneration”.
The impact on employee protections
- BCEA: Employees earning above the new threshold aren’t entitled to statutory protections for working hours, overtime pay, Sunday, public holiday and night work, daily and weekly rest periods and meal intervals.
- LRA: Those earning below the threshold gain stronger protections:
- If working for a client via a labour broker for more than three months, they are deemed employees of the client – unless they really are performing a temporary service.
- Fixed-term contracts exceeding three months are presumed indefinite unless the employer has a justifiable reason for fixing the term of the contract.
- EEA: Employees earning above the threshold can only take unfair discrimination disputes (except sexual harassment cases) to the Commission for Conciliation, Mediation and Arbitration (CCMA) if both parties agree. Otherwise, they must approach the Labour Court.
Exceptions to the BCEA protections
Some employees have limited BCEA protection regardless of their earnings, including:
- Senior managerial employees – defined as “an employee who has the authority to hire, discipline and dismiss employees and to represent the employer internally and externally”.
- Sales staff who travel to customers and set their own work hours.
- Employees working less than 24 hours a month.
Please ask us for specific advice if you need it. This article is merely an overview of a complex topic with many pitfalls for the unwary.
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
“O, I do not like that paying back.” (Falstaff, in Shakespeare’s Henry IV Part I)
A standard clause in loan agreements, suretyships and the like is the “certificate of balance” or “COB” clause.
Typically, it will read something like this (but normally with a lot more verbiage, and bear in mind that every lender has their own version or versions): “A certificate signed by a bank manager will be prima facie proof of the amount owing in terms of the loan agreement, unless the contrary is proved.” Most homeowners will have encountered a COB clause in what we all refer to loosely as “mortgage bond agreements” (actually loan agreements where the loans are secured by bonds).
The question is, should you be intimidated by that wording into accepting whatever amount a bank or other creditor demands from you?
Definitely not, confirms a recent High Court decision: a COB is not conclusive proof of the amount that is owing. Rather, it is a tool to assist the creditor in proving the amount owing.
The couple who challenged the bank’s R2.1m calculations – and won
A couple fell into arrears with their monthly repayments on a bank loan which was secured by bonds over two of their properties.
The bank sent them a “Section 129 Notice” in terms of the National Credit Act (NCA). That’s a formal letter of demand to a consumer that must be sent by the creditor before it can go ahead with court action. It warns the debtor that they are in default and sets out alternative ways for them to sort the matter out – payment, debt counselling, alternative dispute resolution, and so on.
The bank in due course applied to the High Court to enforce the loan agreement (putting both properties at risk of sale in execution). The couple, in opposing the application, said they couldn’t accept the accuracy of the R2.1m claimed by the bank in the COB. That, they said, was because they hadn’t received any statements since 2019, so they demanded a breakdown from the bank of the total amount owing.
The bank declined to provide statements, saying that the couple had to set out a basis for requesting them, and arguing that the COB was conclusive proof of indebtedness. It was for the debtors, said the bank, to disprove the accuracy of the claim.
Not so, held the Court: the COB is simply prima facie (“at first sight”) proof of indebtedness, and it is not up to the debtors to prove what the correct amount is.
The bank, held the Court, had failed to set out in the Section 129 Notice both the correct amount of the arrears and a breakdown of that amount, and its application accordingly failed.
Lessons for lenders and borrowers
Lenders: Ensure that the amounts you claim are accurate and supported by documentation. We can help you with that, and with checking that all your loan agreements and other documents are correctly worded and updated.
Borrowers: If you receive an NCA Section 129 Notice or any other letter of demand, don’t just ignore it! If you aren’t sure what to do, ask us for help – and if you don’t agree with the amount claimed, demand a full breakdown and check it for accuracy.
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
“If you didn’t hear it from the horse’s mouth, it came from the other end of the horse.” (Anon)
The rapid rise of AI is hard to ignore. DeepSeek’s AI assistant, only launched on 10 January this year, has grown to rival ChatGPT in popularity, making it the most widely used AI language model at the time of writing. But DeepSeek isn’t alone in the race – major players like Copilot, Gemini 2.0, OpenAI o3, Meta AI, Grok, Anthropic and the like are all vying for our attention. The competition is fierce, and we’re spoilt for choice!
With AI becoming an integral part of so many aspects of our lives, it’s no surprise that some of us might be tempted to turn to these models for legal help. We decided to ask ChatGPT itself how it feels about that, and what follows is its unedited response. Direct from the horse’s mouth!
Our question to ChatGPT
“With the current high levels of public interest in using AI to answer questions, would you recommend that people without legal training use AI to answer legal questions and to provide legal advice on specific topics?”
ChatGPT said:
| “AI is a powerful tool, but when it comes to legal advice, caution is essential. While AI can summarize laws, explain legal concepts, and assist with research, it cannot replace the expertise of a qualified attorney.
The risks of relying on AI for legal advice
Ethical and confidentiality concerns: Sharing sensitive legal matters with AI platforms can pose risks, as they do not guarantee attorney-client privilege or data security. Where AI can help
The key takeaways
In short, AI can support legal education but should never be a substitute for expert legal counsel. If in doubt, always seek professional advice.” |
A last thought or two from us…
In a South African context, we have found inaccuracy to be even more of a risk than it is internationally – no doubt because of the relatively limited online coverage our local laws enjoy. For example, a test question on a relatively simple aspect of South African law resulted in the bot quoting New Zealand legislation back to the asker! What’s more, there are already media reports of South African lawyers finding themselves in hot water after not thoroughly checking technical AI output (and rightly so!).
Whatever you use AI for, be really careful that its answers are factually and technically accurate before relying on them. As ChatGPT itself says under every question field: “ChatGPT can make mistakes. Check important info.”
AI is a useful tool that may be able to point you in the right direction, but it can never replace a human being – let alone a qualified lawyer. Relying on AI for legal advice could be the worst decision you ever make.
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
“The right of self-defence is the first law of nature.” (St. George Tucker, Blackstone’s Commentaries, 1803)
South Africa’s chronically high crime rates have left many of us wondering what the limits are when defending ourselves and our families from criminals. What weapons does the law allow us to carry, what permissions do we need to carry them, and how and when are we allowed to actually use them?
There are of course a host of practical considerations to consider on top of the legal ones. Are you trained to use your weapon without hurting yourself or innocent bystanders? Do you know how to stop your attacker from using your own weapon against you? Do you really need a weapon at all, or could you keep yourself and your family safe with home alarms, security response services, and common sense when out and about?
You’ll have to answer these questions yourself, but we can help with the legal ones. So, let’s have a look at the laws applying to the possession of several popular weapons, before turning to the twin questions of “legal possession” and “legal use”.
Do you need a licence for…
- Firearms? You need a licence to own and carry a firearm. The process involves background checks, competency training, and proof that you actually need one. Possessing or carrying a firearm without a valid licence is in itself a serious criminal offence which could land you in very hot water indeed.
- Tasers and stun guns? Tasers and stun guns are legal to own and carry for self-defence purposes. Unlike firearms, they are not classified as weapons under the Firearms Control Act and do not require a licence or permit.
- Pepper sprays? Pepper sprays are among the most commonly carried self-defence tools due to their ease of use, affordability, and legality. No licence or permit is required to carry one.
- Bladed weapons (knives, swords and the like), batons, hunting bows, martial arts weapons etc? There are no restrictions particular to these weapons, but the legality of their possession and use is, as we shall see below, very much context-sensitive.
When can you carry them? The importance of context
Context is vital here, in that the Dangerous Weapons Act – which carries penalties of a fine or up to three years’ imprisonment – criminalises possession of any “dangerous weapon”, defined as “any object, other than a firearm, capable of causing death or inflicting serious bodily harm, if it were used for an unlawful purpose.”
That definition is wide enough to include all of the above (other than firearms), and this is why their possession is very much context-sensitive:
- Lawful possession: There is no problem with possession “in pursuit of any lawful employment, duty or activity … during the participation in any religious or cultural activities, or lawful sport, recreation, or entertainment … or legitimate collection, display or exhibition of weapons.”
- Lawful intention: The line between legal and illegal activity is crossed when possession is in “circumstances which may raise a reasonable suspicion that the person intends to use the dangerous weapon for an unlawful purpose.” It’s important to note that all of the circumstances will be looked at very closely when determining whether an offence has been committed: place, time, and behaviour (including threats or intimidatory behaviour, manner of possession and display of the weapon among others).
And when can you use them? Our laws on self-defence
Having to defend yourself from an attacker is awful enough – imagine then being arrested for exceeding the limits of self-defence.
How can you avoid that? As set out by the SCA (Supreme Court of Appeal) “a person acts lawfully when he/she uses force to repel an unlawful attack, which has commenced, or is imminently threatening, upon her or somebody else’s life, bodily integrity, property, or other interests, which deserves to be protected, provided the defensive act is necessary to protect the interest threatened, is directed against the attacker, and is reasonably proportionate to the attack.”
In other words, whatever you do in self-defence must be:
- Necessary: You must show that, in all the circumstances, you had no alternative but to use force. If you can for example avoid an attack by running away, that is what the law says you must do.
- Proportionate to the threat: You can’t use more force than is needed to avert the threat, so any excessive response risks serious trouble.
- Directed only at your assailant. The critical word here is “directed”, as shown in the case below.
How will that play out in practice? Let’s consider the tragic case of a plain clothes police officer shot in error by another law enforcer.
“Hey, put it down, down, down, down … Shoot him, shoot him”
A City of Cape Town law enforcement officer’s successful appeal against his conviction on two counts of murder (for which he had been sentenced to an effective ten years’ imprisonment) provides a practical example of how our laws on self-defence really work.
He’d been charged and convicted after shooting dead both an armed undercover policeman in civilian clothes, and the unarmed suspect the policeman had been arresting on a drug dealing charge.
The law enforcement officer and a colleague, patrolling the city streets at night, had responded to reports of an assault by a man carrying a firearm. When they got to the scene, the armed man (they had no idea at the time that he was a police officer) drew his firearm and pointed it at them despite warnings to put it down. The accused then fired two shots in self-defence, fatally injuring both the police officer and also (unintentionally) the suspect being arrested.
Audio recordings confirmed the accused shouting frantically “Hey, put it down, put it down, down, down, down, down, down, down, down. Shoot him, shoot him.”
The High Court set aside both murder convictions after analysing evidence from the accused, his colleague, and the prosecution’s witnesses, and finding that the accused’s version was “reasonably possibly true”, and also that it had not been disproportionate for him to fire two shots at someone pointing a firearm at him.
This case also highlights some other important practical aspects:
- “Reasonably possibly true” is enough: It’s up to the prosecution to prove its case beyond a reasonable doubt.
- No armchair critics: Per the Court: “our higher courts have repeatedly stated that judicial officers should not judge the events like an armchair critic but should place themselves in the shoes of the attacked person at the critical moment, and keep in mind that the attacked person probably only had a few seconds in which to make a decision, which was of vital importance to him.”
- Honest (but necessary) mistakes are OK: The Court again: “in our law putative self-defence applies when a person honestly believes, although mistakenly, that their actions were necessary to protect themselves or others from imminent harm or danger.”
- Only target the assailant: The Court clearly accepted the accused officer’s evidence that he did not have any intention of shooting the unarmed suspect – he directed both shots only at the armed man directly threatening his life.
If you have any questions about the legal implications of your decision to carry a self-defence weapon, please 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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The National Minimum Wage (NMW) for each “ordinary hour worked” has been increased from 1 March 2025 by 4.4% from R27,58 per hour to R28,79 per hour.
Domestic workers: Assuming a work month of 22 days x 8 hours per day, R28,79 per hour equates to R230,32 per day or R5067,04 per month. Of course, this is just a bare legal minimum: the Living Wage calculator will help you check whether you are actually paying your domestic worker enough to cover a household’s “minimal need” (adjust the “Assumptions” in the calculator to ensure that the figures used are up-to-date).
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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