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You have probably already heard that Parliament has yesterday voted against the proposed amendment to our Constitution which would have confirmed the government’s right to expropriate without compensation. The votes were 204 in favour of the amendment and 145 against. The requisite two thirds majority was therefore not achieved, and the proposed amendment has accordingly failed. The Constitution will therefore remain unchanged. This is good news.

But where does this leave us? Well exactly where we started – just 3 years down the line with lots of money wasted. Let’s recap:

1. On 21 December 2018 a draft Expropriation Bill was published for comment. This was intended to become a new Expropriation Act that was in line with our new Constitution.
2. Substantial public participation was then engaged in, and the government also commissioned reports and appointed a committee to make recommendations.
3. Late in 2019 a draft Bill was published for comment on amending the Constitution, which would expressly allow a Court to authorize expropriation without compensation.
4. On 9 October 2020 a second (and slightly amended) draft Expropriation Bill was published again, for comment. The most notable difference between this draft and the previous one, was the proposed types of land that would be earmarked for expropriation without compensation.

In our opinion the Constitution has, since 1994, allowed for expropriation without compensation in limited circumstances and the pending Expropriation Bill of 2020 attempts to give effect to this. This piece of legislation has been running parallel with the constitutional amendment and we expect that the government will now push this piece of legislation through Parliament with greater urgency. The ANC will only need a simple majority to pass this law as it does not require a constitutional amendment.

What do we have to fear from this? The answer is not much! Our new Constitution has since day 1 contemplated expropriation for minimal or zero compensation in limited circumstances. Furthermore, the constitutional requirement that land may only be expropriated for a proper reason, and in terms of a law that applies equally to everyone in South Africa remains. In addition, property can only be expropriated for a public purpose or in the public interest and all relevant circumstances need to be taken into consideration in determining the issue of compensation. The amount of compensation to be paid also needs to balance the public interest and the interests of those who are affected by the expropriation.

Let’s hope that this latest development put’s paid to further attempts to water down the protection of private property rights as enshrined in our Constitution.

For further commentary on the proposed Expropriation Bill of 2020 click here.

A Case Study

Most Deeds of Sale have a mortgage bond clause which is a suspensive condition. Suspensive conditions must be met perfectly and on time, or otherwise the Deed of Sale will become null and void. Most mortgage bond clauses will have a time period in which the buyer must obtain the loan, the amount, and a sentence which says the loan will be on the bank’s normal terms and conditions.

What happens when a mortgage bond is initially granted within the time period, but is withdrawn later? Does the agreement become suspensive again?

In the case Dharsey vs Shelly, Dharsey bought a property and paid a deposit. He had to obtain a mortgage bond. The mortgage bond was granted for the agreed amount, in time, and subject to the bank’s normal conditions. The sale therefore became unsuspensive or final.

While the conveyancing was progressing Dharsey received two unpleasant tax assessments from SARS and realized that his purchase had just become unaffordable. He sent the tax assessments to the bank and asked them to review his financial qualification for the bond. The Bank promptly withdrew his bond. When the sale could not proceed, Shelly cancelled the sale and took the deposit for damages. Dharsey wanted his money back and went to Court. The Court found that once a suspensive condition has been met properly – in this case his mortgage bond – the sale does not become suspensive again if the bond is withdrawn. Therefor a buyer cannot sabotage his sale by getting his bank to withdraw the loan. All that happens is that he is now left high and dry without the ability to pay for the property or give the required guarantee. Such a Buyer will lose his deposit and be faced with a damages claim. Beware of Buyers remorse! Also bear in mind, a buyer who creates additional debt after the granting of a bond but before the registration could also see his bond withdrawn and be in the same trouble.

Andrew Murray
30 November 2021

The relationship between landlord and tenant and the process of eviction can be complex and burdensome, as we all know. Add to that the declaration by the President on 15 March 2020 of a national state of disaster, brought on by a global pandemic, and things have gotten even more challenging.

During these unprecedented times, the courts have still been able to hear and grant eviction orders. However, whilst we have been under lockdown “a competent court may suspend or stay an order for eviction … until after the lapse or termination of the national state of disaster unless the court is of the opinion that it is not just or equitable to suspend or stay the order…”

What this means is that a court has the discretion to grant an eviction order, but to suspend it until lockdown is uplifted in its entirety. i.e. Until the end of level 1! And as we all know, this could mean another 10 years for all we know.

Our recent matter:

We dealt with a matter last year where the Magistrate court granted an eviction. The court however ordered that the eviction order be stayed until the end of alert level 1. As it could not be predetermined when this date would arise, and after nearly a year from the date on which the order was stayed, we approached the court a few weeks ago, for a variation of the eviction order on the following grounds:

1. That the eviction order was ambiguous; and/or
2. It could not be regarded as just and equitable to further stay or suspend the eviction order.

This tenant has not paid rent since March 2021!

Ambiguity of the eviction order

In interpreting any court order in the face of ambiguity, a sensible interpretation is preferred to one which undermines the purpose of the document or order. Although it was clear from the order that the court intended that the eviction order be stayed until the end of Lockdown Level 1, it was unclear from the wording of the court order, whether or not the tenants would be required to vacate the property as soon as lockdown level 1 was lifted, and on what date exactly the sheriff would be authorised to evict them.

Considerations of Justice and Equity:

While PIE (Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998) is aimed at protecting tenants’ unfair treatment at the hands of their landlords, it is not intended to unduly prejudice the owners of properties’ entitlement to the use and enjoyment of their property either. The courts are therefore tasked with having to strike a balance between the rights and interests of the landlord and the tenant.

The court in Port Elizabeth Municipality v Various Occupiers[1] confirmed that in matters brought under PIE, the court is obliged to balance the opposing interests of the landowner, who has a real right inherent in ownership, and the rights of people in need of accommodation. Thus, the term ‘just and equitable’ is a relevant aspect to consider in respect of all parties to eviction proceedings and not just in regard to the interests of those individuals illegally occupying the property.

The intention of PIE is not to expropriate private property. The purpose thereof is instead to delay or suspend the exercise of the owner’s entitlement to the property until such a time that the court has made a determination as to whether an eviction would be just and equitable in the circumstances of the case.

In our matter, we contended that allowing the Respondents to live in the property, which was owned by the Applicant, against their will and without paying rent, had the effect of expropriating the Applicant’s private property beyond what is constitutionally permissible and beyond what can be said to be just and equitable.

The eviction order, as it stood, had the effect of imposing a positive obligation on the landowner to provide free housing to the illegal occupiers of the land. This was not, in our opinion, a display of balancing of what is just and equitable for both parties, and it was submitted to the court that further staying the order would amount to an unjustifiable limitation on the landowners rights in their property.

The court agreed and the tenants are now ordered to leave at the end of January 2022.

SARS has advised us that due to a backlog (brought on no doubt by the Deeds Office having announced its due dates for lodgements in December), we can now expect to wait 14 business days for a response before we may escalate the matter!

This will now result in many deeds not being lodged by 1 December 2021, which is the cut off date to allow registration this year still.

All good things must come to an end.

After 15 months at 3,5 %, the lowest repo rate in our history, the Reserve Bank has decided to raise rates by 0,25%. This means our prime lending interest rate will increase from 7% to 7,25%.

What does this mean for homeowners who owe on their bonds? Well on a bond of R1 000 000 at prime over a 20-year term the monthly installment will increase by R150.

Not great news with the festive season upon us, but the rate is still remarkably low.

“The future of money is digital currency” as Bill Gates put it, and certainly interest in crypto currencies – like Bitcoin, Ethereum, Polkadot, Solana and the many others popping up all the time – is surging dramatically.

Of growing importance therefore is that anyone holding or planning to buy cryptocurrency needs to understand the tax angle, and by way of an updated warning to keep up to speed on this we point you to SARS’ new webpage on the subject for a “from the horse’s mouth” take on the whole question.

SARS addresses questions such as what a crypto asset is, whether tax needs to be paid, how it will work (with an example of the 2020/21 tax year ITR12 Tax Return), and how it traces crypto asset transactions.

“The future of money is digital currency” (Bill Gates)

If you are thinking of buying – or have bought – any “crypto asset” such as a cryptocurrency like Bitcoin, Ethereum, Polkadot, Solana (or any of the many other crypto currencies springing up all over the place), be aware of the tax implications.

As a start, read the new SARS webpage “Crypto Assets and Tax” here, first published on 27 August 2021 and providing guidance on (at date of writing – expect this webpage to evolve!) these questions –

• What is it?
• How did we get here?
• Do I need to pay tax on crypto assets?
• How will it work? (With an example of the ITR12 Income Tax Return for the 2020/21 tax year)
• How is SARS tracing crypto asset transactions?

  There are still grey areas here – and many pitfalls – so be sure to take specific professional advice!

The Covid-19 virus is unlikely to leave us in peace and safety anytime soon, and the resulting economic disruption continues to pummel businesses of every sort and size.

So for most business operations, fully-vaccinated workforces are doubtless high on the agenda. If you are one of them, you will be wondering whether you can make vaccination compulsory in your workplace.

As an employer you are left walking a tightrope between a whole range of (often conflicting) rights and duties. We analyse government’s recent “Direction” on the issue, focussing on 5 areas of particular importance in a bid to help you with your decision making here…

“Employers should find a reasonable resolution that accommodates all parties where employees refuse to be vaccinated for medical and constitutional grounds” (Ministry of Employment and Labour)

As the Covid-19 pandemic continues to wreak havoc around the world, an increasing number of businesses find themselves walking a tightrope between their obligations to, on the one hand, both protect the public and provide a safe and healthy workplace, and on the other hand to respect the individual constitutional rights of employees to make their own choices in matters of bodily and psychological integrity, religion, belief and opinion.

These deeply conflicting rights and obligations have left employers asking themselves questions like: “Must we insist on our employees having the vaccination to protect their colleagues, our visitors, our customers and the public at large?” and “If so, can we actually force unwilling employees to get jabbed or are we in for unfair practice or wrongful dismissal claims?”

The Minister’s “Amended Consolidated Direction”

On 11 June 2021 the Minister of Employment and Labour issued an “Amended Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces” under the National Disaster Regulations in an attempt to address those questions.

The Direction is long, detailed and complex, setting out a host of “minimum measure” requirements for workplace safety during the pandemic, so specific professional advice is essential here. But in a nutshell there is now an official guideline for employers wanting to make vaccination compulsory or partially compulsory. At a minimum, comply with all these specified obligations –

1. Undertake a risk assessment

   This risk assessment (supposed to have been completed by 2 July 2021) was to determine (a) whether vaccinations were to be made mandatory considering the “operational requirements of the workplace” and if so (b) who was to be compulsorily vaccinated, taking into account the risk of transmission to employees through their work and their risk for severe Covid-19 disease or death due to their age or co-morbidities.

   In assessing whether or not your particular workplace needs a mandatory vaccination policy, include factors such as the ongoing requirement to enable employees to work from home where possible (still applicable even under Adjusted Level 2), the nature of the work in question, whether adequate ventilation is possible, whether adequate social distancing measures are possible and so on – the list is endless.

   As regards that 2 July deadline, it seems likely that many (perhaps most) employers missed it. If you are in that boat, what should you do now? There is no clear guidance on that, but the consensus of expert opinion seems to be that you should still comply, as soon as possible.

2. Develop or adjust a vaccination and protective measures plan

   Based on the risk assessment, this plan must outline both what protective measures you have in place, and what vaccination measures you intend to implement.

3. Consult on the risk assessment and plan

   Consultation must be with any representative trade union and any health and safety committee or representative. We should discuss under this heading also the questions of communication, education and training. We all know that together with some rational and valid concerns, there is an avalanche of fake news around Covid-19 and vaccinations. Inform your employees fully of their rights, help them to distinguish fact from fake, address their individual fears and concerns, explain the benefits of your plan to everyone, and strive for consensus.

4. Make the plan available

   The plan must be available to an Occupational Health and Safety Act inspector and to the person/s listed in point 3 above.

5. Other requirements and factors

   No list of this nature can ever be comprehensive but consider factors such as paid time off and transport to vaccination sites, sick leave for employees who suffer side-effects, counselling for “vaccine hesitant” employees and the like. There are also defined procedures to be followed when employees raise medical or ethical objections to being vaccinated (for example, the employer may need to try to find an alternative position in the business for such an employee).

And of course every workplace will be different, which leads us to …

The bottom line

There is talk of workplace vaccination being officially made compulsory either across the board or in certain sectors, whilst media reports suggest that an increasing number of large employers are already implementing compulsory vaccination policies on the basis of legal advice received. There is also much speculation that our courts will support dismissal of employees who refuse vaccination in appropriate cases, and there is even a report of a High Court Judge insisting on either proofs of vaccination or negative PCR tests “for the general well-being of all parties in attendance at court”.

Bear in mind however that every situation, every workplace, and every employee will be unique – and with the high stakes involved, tread with extreme care and only after taking professional advice.

When you sell your house (or indeed any other property) you are almost certainly dealing with a transaction of major financial importance to you.

You will therefore want to do everything you can to ensure a smooth and professional transfer process, with the purchase price being paid out to you as soon as possible.

First step in achieving that is choosing the right conveyancer (transferring attorney) for the job. We discuss why every transfer needs to be carried out by a conveyancer, why you as Seller do the choosing, how you should go about making your choice, and why you should bring your chosen conveyancer into the sale process from the very start.

“A great deal is at stake in the transfer of fixed property. It is generally the largest single asset that a person owns and the transaction for the purchase or sale of a fixed property is probably the most important contract undertaken by individuals” (Law Society of South Africa)

For many of us, our home is our most important asset so when it comes time for us to sell, do everything possible to ensure that your interests are fully protected, that the sale goes through quickly and smoothly, and that you are paid without unnecessary delay.

Appointing the right conveyancer is key here. Let’s have a look at the “Why, Who, How and When” of it…

Why do I need a conveyancing attorney?

Legal ownership in “immovable” or “fixed” property (that is, land and permanent attachments such as buildings) can only be transferred from seller to buyer through a formal registration process in the Deeds Office. This is carried out by specialist attorneys who have been admitted to practice as conveyancers.

Who appoints the conveyancer, and how?

As the seller, it is your right to choose which conveyancer will carry out the transfer.

The agreement of sale (it may be called an “Offer to Purchase”, “Deed of Sale” or similar) should contain a clause specifying the conveyancing (or “transferring”) attorney. Make sure you fill in your chosen attorney’s name and details in the space provided, and do not allow anyone else to dictate to you who to use!

You may occasionally come across an offeror/buyer wanting to appoint their own attorney for one reason or another, perhaps with the argument that because they are paying the transfer costs (which include the conveyancer’s fees), the choice should be theirs. But the fact is that you carry more risk, and there is nothing to stop the buyer from employing another attorney to monitor the transfer on their behalf if they really feel this necessary.

Bottom line – stick to your guns! This is your house at stake, so the choice is yours, and yours alone.

How to choose the right conveyancer

Your choice here is critical. You need to appoint someone you can trust to handle the process with the utmost professionalism –

• Speed will be important to you (“time is money”!), and whilst a certain amount of delay is inevitable (there are lots of formalities and red-tape requirements involved), a pro-active and committed conveyancer will keep delays to a minimum.
• Communication: Progress updates should be regular and timely, keeping you in the loop at every step of the process.
• Attention to detail is also vital. Conveyancing is a specialised field, calling for meticulous compliance with a host of rules and regulations. Moreover every sale agreement will be different, and its precise terms and conditions must be complied with.
• Cybersecurity has become a major issue in recent years, particularly around the question of email integrity. You will need to play your part here too (to take just one example, don’t ever take at face value an email purporting to come from your attorneys “advising you of our new banking details”), but knowing that your chosen firm of attorneys has security protocols in place is critical to resting easy that the purchase price will indeed end up in your account.

The need for scrupulous integrity goes without saying – a lot of your money will be at stake here!

When should I bring my attorney into the sale process?

Ideally, from the very start. When you first decide to sell, you will find it invaluable to have your attorney’s advice on how to go about it, whether you should speak to an estate agency, how best to market your property, what pitfalls to avoid and so on.

When it comes to the agreement of sale itself, a myriad of things can go wrong if the contract isn’t professionally drawn to be clear, concise, legally enforceable and configured to protect your interests. So if you are presented with an offer or agreement drawn by someone else, take legal advice before you agree to anything!