“Grandparents, like heroes, are as necessary to a child’s growth as vitamins.” (Quoted in the judgment below)
One of the greatest tragedies of family fall-outs will always be the effect they have on the children involved. A recent High Court fight over a granny’s attempts to have contact with her two grandchildren in the face of bitter opposition from their father confirms that what really counts is what’s best for the grandchildren.
Two boys, aged 9 and 13, are the innocent subjects of this legal wrangle. They live with their father in Makhanda.
Their mother, a professional nurse serving in the SANDF with the rank of captain, tragically died in a motor accident three years ago.
Their father, currently a High Court advocate, had met their mother while a member of the SANDF’s Special Forces Unit. They were never formally married but the two children were born of their union. He is described as a good father providing his boys with good care and a stable home and family life.
Their grandmother is widowed and a retired nurse and midwife. Her requests to the father for contact with her grandchildren were met with an obstinate refusal to even engage with her. His intense dislike for her – based, he said, on his late partner’s anger issues with her – was reiterated in his stance in the Children’s Court where he made it clear that he refused ever to talk to her.
The grandmother lives in the village of Herschel on a large plot, is in good physical and mental health, and says she is well able to look after for the children while in her care.
The Children’s Court, having received the reports and evidence of social workers (which spoke of a healthy relationship between mother and grandmother in contradiction to the father’s perception), granted access to the grandmother.
The father appealed this order to the High Court. While accepting that the father genuinely believed that he was acting in his children’s best interests, the higher court upheld the contact order, albeit in a more structured form than the original. The grandmother now has access by way of:
The Children’s Act sets out in detail a wide variety of factors to be considered by a court in deciding any application for access (referred to as “contact” in the Act). But as the Court here pointed out, the decisive consideration is always going to be the best interests of the child.
Every case will be unique, but one highly relevant factor that our courts will have regard to is “the need for the child to remain in the care of the parent, family, and extended family and to maintain the connection with his family, extended family, culture and tradition”.
Let’s close with this particularly apt observation from the Court (emphasis supplied): “Usually, it is in the best interests of a child to maintain a close relationship with his grandparents”.
“The legal principles, as I understand them, do not confer on me the powers of Father Christmas. I cannot rescue the un-rescuable.” (Quoted in the judgment below)
We all want loyal, competent staff who remain motivated to stay with us in the long term, but the reality is that a degree of employee churn is always inevitable.
Imagine then this scenario – a key employee (someone senior, a specialist, or perhaps even a partner or director) is fired or leaves you. They take with them intimate knowledge of your business. They know all your trade secrets, your pricing processes, your marketing strategies, and all your trade connections. Plus, they’ve built up client relationships and credibility in your industry while employed by you.
If they now decide to start up their own business in opposition to you, or if they take their insider knowledge to your competitors, you have a real problem.
That’s why it’s essential to consider, right up front when you’re hiring someone and drawing up their employment contract, whether you need to protect your business from this sort of unfair competition. That’s where the tried-and-tested restraint of trade clause comes into play. It’s as easy as including one in your employment contract, and making sure that your new hire is fully on board with it. Or is it?
As a starting point, our courts are cautious about curbing anyone’s constitutional right to be economically active and to earn a living.
So, while we are all generally held to the agreements we make, and while restraint clauses have long been recognised in our law as a legitimate way for businesses to protect their interests from unfair competition, our courts are unlikely to enforce restraints unless they are:
Each case will be judged on its own facts and merits, with the court balancing your rights against those of your former employee in a bid to ensure fairness to both of you.
As a starting point, make sure that your clause isn’t “void for vagueness”, or you could end up in the same position as the employer we discuss below.
An employer, providing physiotherapy services to two major hospitals in the Umhlanga area of KwaZulu-Natal, employed a senior physiotherapist in January 2023. Eight months later she resigned.
The restraint of trade clause in her agreement was a particularly terse one. Headed “15. Trade Restriction”, it read simply: “2 year 8km restriction in event of termination / expiry of Contract.”
When the employer tried to enforce this clause, the High Court refused, pointing out that it was “lacking in substance” and contained no indication of:
What’s more, it contained no mention of the two particular private hospitals which the ex-employee was not to practice at. The Court refused the employer’s request to “read in” more wording to the clause to remedy its vagueness and lack of detail, quoting from another High Court decision: “the legal principles, as I understand them, do not confer on me the powers of Father Christmas. I cannot rescue the un-rescuable.”
It also warned against the trend for smaller businesses to cut corners by going the “DIY contract” route: “SMME businesses are reluctant to seek advice from attorneys, and less so to employ attorneys to prepare important legal agreements. This pattern, fuelled undoubtedly by the rising cost of legal charges, often results in unforeseen circumstances by the time the matter reaches a litigious stage”.
That’s putting it mildly – defective restraint clauses like this one literally aren’t worth the paper they’re written on. A properly drawn clause is essential, and we’re here to help.
“Trust me, I’m a lawyer.” (Popular T-shirt slogan)
South African property buyers and sellers will have been cheered by news that we are now officially the most affordable country in the world in which to buy a home. We’re only a nose ahead of the USA and Bahrain in this particular race, but it’s great to be a world leader in something so positive for a change. Have a look at BestBrokers’ analysis of house affordability in 62 countries here to see just how unaffordable property is in many other countries around the globe.
This all bodes well for the South African property market, so it’s perhaps a good time to remind sellers that it’s not just about getting a good price for your house. Equally important is ensuring that you choose the right conveyancer to attend to the transfer for you, with a recent High Court fight over a dishonest attorney’s theft sounding a stark warning in this regard.
Having bought a house on auction for R4.1m, the buyer paid the auctioneer the required 5% deposit and the auctioneer’s commission. The auctioneer duly paid the deposit to the conveyancer nominated by the seller and the conveyancer, having not yet turned to the dark side, paid the deposit over to the seller. So far, so good.
The conveyancer then issued a pro forma invoice to the buyer for the balance of the purchase price and transfer costs, a total of R4.25m. The buyer duly paid that amount into the conveyancer’s bank account specified in the invoice.
Conveyancers are obliged to pay all such funds into a separate trust account for safekeeping, but in this case it emerged (after the buyer queried inordinate delays in the transfer process) that the bank account specified by the conveyancer in her invoice was not a trust account at all. Worse still, she had absconded with the funds.
A series of tussles followed, with the buyer demanding the house be transferred to him because he had paid in full, and the seller countering that they had cancelled the sale because the buyer didn’t “secure” payment of the balance of the purchase price by paying it into a trust account.
The High Court, called upon to sort out who must ultimately bear the loss, held that by paying the conveyancer per her invoice, the buyer had done everything required of him by the conditions of sale and was entitled to transfer. It was not the buyer’s obligation to ensure that he was paying into a trust account and to monitor its safekeeping there until transfer. Rather, it was the conveyancer’s obligation to secure the funds in her trust account until transfer.
The end result is that the seller must now transfer the property to the buyer and try to recover his losses elsewhere. He can sue the conveyancer (not a hopeful prospect) and as a last resort he can lodge a claim with the Legal Practitioners Fidelity Fund (LPFF). He’ll be wishing he’d avoided all that cost, delay and risk by choosing a more trustworthy conveyancer in the first place.
(As a side note, the conveyancer has been suspended from practice and her firm placed under curatorship – she blames her total trust account shortfall of at least R8m on a dishonest bookkeeper.)
Remember: as seller it’s you who gets to choose the conveyancer, so choose wisely! And as always, don’t sign anything until we’ve checked it all out for you.
You’ll come across these terms most often in civil claims, employment disputes, criminal cases, contracts (including property sale agreements) and constitutional matters. But what do they mean? When our law requires an objective approach, courts assess facts, logical arguments, and impersonal standards, uninfluenced by personal beliefs. But when courts apply a subjective test, they consider an individual’s actual thoughts, beliefs, interpretations or intentions.
For example, if you are suing someone for damages and trying to prove negligence, the court will ask what a reasonable person would have done, or not done, to avoid harming you (an objective, impersonal standard), rather than whether the other person actually intended to cause you harm (a subjective, personal standard).
“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.
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.
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:
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!
It’s vital for both employers and employees to understand the practical and legal differences between permanent and fixed term employment arrangements.
A fixed term contract is a temporary employment arrangement with a specified start date and an agreed end date. This could be a fixed end date or a reference to a specified task or project reaching completion, or to a specified event. Importantly, you must be able to prove that your employee agreed to the end date.
A standard contract of employment, by contrast, is for an unlimited period and ends only when your employee resigns, or reaches retirement age, or is lawfully dismissed or retrenched by you.
Any employer tempted to misuse a fixed term contract in order to dodge the many legal protections given to a full-time employee should think twice – our courts do not look kindly on attempts to prejudice employees by disguising the true nature of an employment relationship.
The contract (and any renewal contracts) must be in writing and must state the reasons justifying the stated fixed term.
The Labour Relations Act (LRA) provides a range of protections to fixed term employees. Let’s address them under two main headings.
Firstly, the “reasonable expectation of renewal” protection that applies to everyone
Simply put, you could face an unfair dismissal claim (with all that that entails) if you give the employee reason to believe that the contract will be renewed or converted to full-time employment.
That’s because – and this applies to all fixed term contracts in that none of the exclusions listed below apply here – the LRA says the termination of a fixed term contract is seen as a “dismissal” if:
Anything could land you in hot water here, with particular risk areas being things like continual renewal of fixed term contracts without justification, verbal or implied reassurances of renewal, a workplace culture of renewing contracts etc. To be on the safe side, consider giving your employee specific written notice of non-renewal in good time. Every scenario will be different here, so in some instances you may be advised that multiple contract renewals are justified, in others that they aren’t – specific legal advice is essential, and the bottom line is that professionally drawn contracts and clear communication are critical.
Secondly, other protections that apply only to certain employees
These additional protections do not apply in any of these exceptions:
The three-month limit, and the need for justification
You can only use a fixed term contract (or successive contracts) for over three months if:
This is not an exhaustive list so you may well have other justifiable reasons, such as perhaps needing to establish the viability of a new venture, a new branch, or a new position before committing to long-term employment.
Watch out here! If you employ someone on a fixed term contract for more than three months without complying with the above, the contract is automatically deemed to be a full employment contract of unlimited duration.
Other things to watch
A properly drawn employment agreement that both protects your interests and complies with the law is essential – and we’re standing by to help you.
“My word is my bond.” (Once the motto of 16th-century merchants, adopted by ’90s hip-hop artists, and now tossed around by duelling politicians)
Many people are unaware that there are just a few types of agreement that are valid only if recorded in writing and signed – most notably contracts for the sale, exchange, or donation of land or of any “interest in land”, ante-nuptial contracts (ANCs), and deeds of suretyship.
Outside of those exceptions, all verbal agreements are as valid and enforceable as written ones. Your word really is your bond! So be careful what you agree to verbally – and stick to written agreements whenever there’s a lot at stake. A recent High Court judgment provides a great practical example of those principles at work.
It’s 2009, and the MD of a long-established Cape Town freight operation is doing business with another business owner. Their relationship develops from a strictly business one into a personal, “best friend” one.
By 2012, they have agreed verbally that the friend will move to Johannesburg to establish a branch of the freight company there as a new director.
Believing that he will now be given a 5% share in the company and be appointed as a director, the friend pays the company R1m to cover the new branch’s start-up funding. But when he asks for his shares, the MD refuses, denying there was ever any agreement to give him equity and telling him that the R1m was just an “at-risk investment”.
The refusal to give him shares, says the friend, is a repudiation (renunciation) of the oral agreement, and he demands that the company now repay his R1m.
The company, through its MD, refuses – “I’ll see you in court,” he says. In the latest (2025) round of litigation, the Court, without a written agreement before it, has to analyse a litany of contradictory evidence to try and work out what exactly had been verbally agreed by the two ex-friends.
The Court was unimpressed with the MD’s version that his friend’s R1m payment was an “at-risk investment” rather than the agreed purchase price of a 5% shareholding. A major factor in that decision was clearly the director’s 2013 email to his friend which included this: “…I have committed to sell you equity…”, reinforced by his evidence that he only changed his mind about parting with shares in 2014.
The nail in the MD’s coffin was no doubt his admission that that he had held out the prospect of his friend becoming an equity partner as “a carrot”. His friend accepted that offer, their oral agreement became binding, and the company must repay the friend his R1m plus interest and costs.
Offer someone a carrot, and our law will hold you to deliver it!
While it seems justice has been done, both the falling out and the court case could have been avoided altogether.
Had the MD and his friend thought the whole thing through properly back in 2012 and asked a lawyer to draw up a proper written agreement for them, it’s highly unlikely that they would, in 2025, still be fighting their way through the courts. Who knows, they might never have come to blows at all and could still be BFFs!
Don’t rely on a “handshake” agreement, even with the best of friends. When the stakes are high, let us help you put it in writing – clearly, enforceably, and with a minimum of fuss.
“Look before you leap.” (Wise old proverb)
Imagine sealing the deal on your dream property, only to wake up at 3 a.m. beset by sudden doubts. Thoughts like “Can we really afford it?” or “How on earth could we have fallen in love with that old dump?” haunt you. You may have a strong urge to back out – but tread very carefully here. Trying to cancel the sale without sound legal grounds will be a big and costly mistake.
A recent High Court case provides the perfect example.
Our buyer put in a R135m offer for a luxury three-storey house in Sandhurst. The cancellation clause in his offer document read (emphasis added): “The Purchaser at his own expense will conduct an inspection of the home within (14) fourteen days of acceptance of the offer. Should there be structural defects or defects that are unacceptable to the Purchaser then the Purchaser can at his discretion elect to cancel this agreement.”
The seller accepted the offer with that cancellation clause – deal done. But then, eight days later, the buyer tried to escape the sale with this email from his attorney: “Unfortunately after conducting due diligence, the purchaser hereby elects to cancel the agreement… Good luck with the sale.” The buyer’s remorse in this case turned out to be monetary – he had, he said, overpaid for the property. He then put in a new offer for R100m.
That was a loss the seller wasn’t going to accept, so daggers were drawn, and the fight was on.
The seller hotly denied that the buyer had any right to cancel the sale agreement, and off they went to the High Court. The buyer said that he had “unfettered discretion” to decide whether or not there were defects, and he refused to give the seller any details of them. Only in his court papers did he provide more information, claiming to have noticed cracks on the walls during an inspection. The rest of his “concerns” related to his personal preferences for the house – wanting new paving, widening the driveway, remodelling the kitchen, installing an elevator and the like.
The Court had no hesitation in holding that the buyer had not been entitled to withdraw from the sale “based on any minor ‘imperfection’ in the property, because it does not fulfil his personal needs – at his sole discretion and without proof.”
He had failed, as required by law, to exercise his discretion reasonably and to prove the existence of a defect objectively (i.e., based on facts, not personal belief) rather than subjectively (i.e., based on the buyer’s personal opinions or interpretations). His subjective interpretation was irrelevant.
The bottom line: the seller had rightly rejected the buyer’s cancellation, and the buyer remains bound to the sale. To rub salt into his wounds he must now also pay costs on the attorney and client scale – that’s going to be expensive!
Per the Court, the ordinary meaning of a defect is (emphasis supplied): “an ‘abnormal quality or attribute’ of the property sold that ‘destroys or substantially impairs’ its ‘utility or effectiveness’ for the purpose for which it is generally used or unfit for the special purpose for which it was intended to be used by the purchaser.”
Personal preferences like elevators and revamped kitchens don’t count, and a wall crack justifying a R35m price reduction can’t be superficial!
Some final thoughts for property buyers:
Last (but certainly not least) don’t sign anything without asking us to review all the paperwork for you first!
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
Exceptions to the BCEA protections
Some employees have limited BCEA protection regardless of their earnings, including:
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.
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:
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:
If you need help reviewing your fraud prevention and payment verification procedures, please feel free to contact us.