HOW CAN I BUY PROPERTY IN SOUTH AFRICA AS A FOREIGNER?
“I never knew of a morning in Africa when I woke up that I was not happy.” (Ernest Hemingway)
Are you a visitor dreaming of waking up with giraffes on your lawn and wondering how to make it happen? Or a local being asked by overseas friends and relatives: “This country’s magic, how can I buy myself a property here?”
Can you buy as a foreigner?
The good news here is that we’re as welcoming to property buyers as we are to visitors! Foreigner or local, there are very few restrictions on buying South African property – and many reasons to do so.
Why buy South African property?
Whether you’re looking for a holiday home, an emigration or retirement option, or just an investment, there are a host of advantages to buying a property in South Africa:
- Affordability: South Africans have become used to the rand consistently underperforming against most other currencies. The latest Big Mac Index, for instance, shows the rand as 50% undervalued, making it the ninth weakest currency on the index. The stronger your home currency, the more affordable even very high-end South African properties will be for you
Blue skies ahead for property: For a variety of economic and political reasons, the general consensus is that 2025 should present significant growth opportunities in both the residential and commercial sectors
Options, options, options: South Africa offers a wide range of properties, with popular options including coastal homes, secure complexes, luxury suburban houses, vibey city apartments, bushveld estates, and retirement communities. You’re sure to find something to meet both your preferences and your investment goals
- Capital growth potential: Property provides a stable asset in South Africa, with great potential for capital appreciation
- Strong legal protections for property
owners: Our legal system, with an effective land registration process at its core, provides robust property rights for both foreign investors and local - Potential for rental income: Our strong tourism sector and consistent demand for rental properties, combined with the affordability aspect we touched on above, provide attractive opportunities to generate rental income
How can you finance the purchase?
Foreign buyers can obtain mortgage bonds from South African banks, typically financing up to 50% of the property’s purchase price, with the balance funded through foreign currency brought into the country. Some banks are more flexible than others in this regard, with non-residents who live and work here qualifying for up to 75% loans (possibly even more if motivated) with some lenders.
You must transfer the monies from abroad via a bank or other authorised dealer. To simplify the process of repatriating funds when you eventually sell the property, ensure that your title deed is endorsed “Non-Resident” and keep proof of the original inflow of funds.
Make it clear in the sale agreement that you will be importing funds from overseas – and be sure that the deadlines set for you to pay the deposit, to get bond approval, and to pay the balance of the purchase price, are all realistic. It goes without saying that you should get a local lawyer to check every aspect of the agreement carefully.
How does the registration process work?
It all begins with you making an offer, which, if accepted by the seller, becomes a deed of sale or sale agreement. This is followed by the transfer of ownership of the property to you in the local Deeds Office in a process managed by a conveyancing attorney. Count on it taking about three months – perhaps a bit less if all goes smoothly or a bit more if there are unexpected delays.
If you won’t be here that long, you will need to sign transfer and bond documentation overseas – normally at a South African embassy/consulate or (in some countries) before a Notary Public or other authorised person. Ask the conveyancer for advice specific to your country.
Taxes and other costs to consider
Foreign buyers are subject to local taxes, including transfer duty (a government tax levied on property transactions) and other costs of transfer. A cash flow projection will ensure that you are able to pay these as they fall due.
If you sell your property at some point, Capital Gains Tax may apply to the profit you make from the sale.
Will I still need a visa?
Owning property here does not give you any form of residency status, so you will still need a valid visa, work permit, or residence permit, as applicable.
HOW CAN YOU PROTECT YOUR HEIRS’ INHERITANCES FROM THEIR CREDITORS?
“The only person who sticks closer to you in adversity than a friend is a creditor.” (Unknown)
You’ve done everything you can to leave your loved ones financially secure after you die. You’ve left enough assets to set them up in their own lives, made a valid will, and chosen a trustworthy and efficient executor to wind up your deceased estate. You think you’d done everything you can to help and safeguard them.
But what if you missed something that could be a real gamechanger for your heirs?
Insolvency and attack by creditors
We’re talking about one or more of your heirs getting themselves into serious debt. It really can happen to anyone. As the out-of- the-blue pandemic lockdowns confirmed, even the most prudent of people can find themselves unexpectedly in the dwang. The danger is that if your heirs’ personal estates are sequestrated, or if their creditors execute against their assets, their inheritances could be attached – and lost to your family forever.
There are ways to manage this risk whilst still ensuring that your heirs are looked after. Which route is best for you calls for specific legal advice. But here are the main options:
Set up a discretionary trust: You set up a trust to which you leave everything, or just a portion of your estate, or specified assets. This ensures that the inheritance is managed by trustees for the benefit of your heirs, and out of reach of their creditors – if you do it correctly.
Choosing the right form of trust (the most commonly encountered types being living or inter-vivos trusts and will or testamentary trusts) needs careful consideration with professional guidance. It’s equally critical to use the best structure for the trust, its assets, and its management.
- Tax and other practical aspects also need careful consideration. In the context of protecting assets from creditors, it’s vital to make the trust a discretionary one, because the trustees in a discretionary trust can distribute to beneficiaries at a time of their choosing, rather than the inheritances automatically vesting in your heirs (and being attached).
- Insert an insolvency clause into your will: This one calls for particularly careful drafting by a professional. Our courts have previously held that it is not permissible to simply include a clause or condition that’s intended to prevent creditors from pursuing an heir’s inheritance once that heir has acquired rights to the inheritance.
- Rather, the clause needs to create a gift over such as a provision stating that if your heir is insolvent at the time of your death, the bequest must accrue to another person. Or perhaps you could allow your executors a discretion to divert the inheritance? Clearly, crafting such a clause to both benefit your heirs and withstand attack from a creditor or the trustee of an insolvent estate requires specialist help.
- Create a usufruct or fideicommissum over assets: If you want to leave an asset (typically, but not always, immovable property) to your heirs, you could create rights for them under a usufruct or fideicommissum – technical terms which again require specialist advice and consideration of all the legal, practical and tax angles.
The last option is to leave it to your heirs to repudiate (reject) their inheritances after you die. That’s not a first prize solution, as it requires your heirs to both understand the legal position and to repudiate at exactly the right time.
A will is only as good as its most recent review
A will is only as good as its most recent review goes on… But we’ve just added another reason. While conducting these reviews, consider whether any of your heirs could be at particular risk of financial distress and if so, how you can manage that risk.
DIRECTORS: HERE’S HOW TO AVOID BEING SUED FOR COMPANY DEBTS
“To be prepared is half the victory.” (Miguel de Cervantes, author of Don Quixote)
Perhaps you’re a director losing sleep over the risk of losing everything if creditors sue you personally for your company’s debts because you’re asset-rich, and they can’t squeeze anything out of the company. Or maybe you worry about the company itself suing you for losses it suffers because of something you have or haven’t done.
There can be big money involved, as we shall see from the SCA (Supreme Court of Appeal) case below, so those are risks well worth keeping a close eye on. Preparation really is key here.
The general rule
Our law has long accepted that a company has a legal personality separate from its directors and shareholders, trading in its own name and holding its own assets and liabilities. So, the good news is that, as a general rule, directors are not personally liable for their company’s debts unless:
• They sign personal sureties for those debts, or
• They breach their legal duties as directors
The not-so-good news is that those duties are many and onerous. In a nutshell, as a director, you must always perform your duties with integrity, care and diligence, without being reckless or fraudulent, without breaching your duty to act in good faith, and in the best interests of the company.
A case in point – directors sued personally for R41m
A goods importer sued the directors of a clearing and forwarding agent in their personal capacities for R41.4m. This after the agent had taken money from the importer to pay the VAT it owed, but had only paid part of that sum over to SARS. That left the importer having to pay SARS the shortfall plus interest and penalties.
On highly technical grounds (to do with the wording of various sections of the Companies Act), the importer’s claim was thrown out of court by firstly the High Court, and then by the SCA on appeal.
The importer now has an opportunity to amend its papers and to have another go at the directors personally, so this saga may not be over quite yet. But what’s important on a practical level is that the judgments in this case have established clearly that:
• The “separate personality” of a company is still recognised, and directors cannot be automatically held liable for the company’s debts. Grounds for personal liability must be proved
• An attack can come from anywhere – creditors, employees, other stakeholders, and even the company itself can hold directors liable for company losses arising from any breach of their fiduciary duties towards it
• A creditor must show which specific section or sections of the Act the director breached. It was the importer’s inability to identify such a section in its papers that led to its case falling at the first hurdle. But as we saw above, it now has a third crack at the whip and the warning to directors remains – comply with the Act’s many requirements, or face litigation
• Taking another tack, a creditor could use the “abuse of separate personality” angle to sue a director. That would involve proving that the director abused the company’s separate personality sufficiently for a court to hold that it is not a separate juristic person for the purpose of a particular claim. In other words, the director would be regarded as the debtor for that debt
Be prepared, and protect yourself from liability
Staying on the right side of the law isn’t complicated, but you do need to know what’s required of you. Here are some tips:
Understand your duties: Familiarise yourself with your fiduciary duties to the company on the one hand and your legal obligations to other stakeholders on the other
Maintain proper records and books of account: Ensure financial records are always up-to-date and accurate. Ignorance of your company’s financial health is not a defence
Monitor compliance and financial controls: Check that financial controls are in place and adhered to, make sure that SARS returns and payments are made on time, and generally stay on top of your financial game
Don’t ignore warning signs: If your company is struggling financially, ask us for advice early. Avoid delaying tough decisions
Open communication: Transparency with all stakeholders can save you from accusations of deceit and fraud
If you’re ever unsure about your legal obligations or find yourself in a sticky situation, we’re here to help you understand your duties, assess risks, and protect yourself personally while you focus on growing your company and its profitability.
A NEW SCHOOL YEAR DAWNS – CAN UNPAID FEES BAR YOUR CHILD FROM ENROLLING?
“I have never let my schooling interfere with my education.” (Mark Twain)
Our Constitution guarantees everyone rights to education, but that doesn’t mean parents can necessarily pick and choose which schools they send their children to. Nor does it mean that they can expect schools to continue educating their children if they don’t pay the agreed fees.
A recent High Court judgment provides a perfect example.
Breaking the camel’s back – 4 years of arrears totalling R407k
A father’s failure to settle a bill of over R407k in unpaid school fees for his daughter’s education at an elite private school in Cape Town has led to him being interdicted from enrolling her there for the 2025 school year.
The school’s patience has clearly run out after years of the father’s failure to stick to a payment plan, negotiated four years ago. The Court characterised his actions as a “modus operandi of non-payment and broken undertakings”. His explanation, that affordability is the issue and that he could not pay the outstanding arrears, cut no ice with the Court.
The proverbial straw that broke the camel’s back, said the Court, was the father’s “flat- out refusal to sign the most recent restructuring agreement, which had been drafted in a last-ditch effort to record in writing the terms of the most recent agreement between the [school] and the [father] so that his daughter could be enrolled at the school for her next academic year.”
The child’s best interests are always paramount
Our courts are the upper guardians of all minor children, and this Court was, as always, careful to consider the daughter’s best interests.
Critically, she is not left without alternative educational opportunities – that would be a breach of her Constitutional rights as well as a violation of the strict warnings from our courts that schools that provide basic education are under a constitutional duty not to diminish the right to basic education and at all times to act in the best interests of the child.
In this instance, the school had secured an alternative good school for her – a government-subsidised school in the same suburb as her brother’s school. The father’s rejection of this alternative school as being “‘unsuitable’ because [it] is not predominantly white, and this does not align with his daughter’s cultural values” was summarily dismissed by the Court with the terse comment: “The less said about this argument, the better”.
The enrolment contract and the school’s obligations
This case is an important reminder that we are bound by the agreements we make. The father, in signing his daughter’s enrolment contract, was aware that:
• The school is an independent school, getting virtually no government funding and relying on school fees and donations to fund its operations and to educate its learners
• Failure to pay fees was a breach of contract which would inevitably lead to the daughter’s exclusion from the school
Our courts, once again putting the interests of children first, insist that any decision to suspend or expel a learner during school term must satisfy due process. These include adequate warning prior to suspension or exclusion, provision to make arrangements to settle fees, or the opportunity to make arrangements to enrol a learner at a new school.
The school, in this case, had clearly gone above and beyond in this regard, and the Court had no hesitation in issuing the interdict with costs payable by the father, who must now enrol his daughter in another school – and pay this school its outstanding fees with interest.
REVENGE PORN AND A FAKE FACEBOOK PROFILE – ONLINE DEFAMATION COSTS A COUPLE R3.55M
“The scariest thing about digital abuse is how a victim can never know how far it went, how many people it reached, and how much those who saw it bought it.” (Psychology Today)
Our laws are always protective of our rights to privacy and dignity, and a recent High Court decision confirms that defamation can be a very costly business for perpetrators.
In serious cases such as those involving revenge porn (a term commonly used to describe the publication of non-consensual intimate images, recordings or depictions) offenders face criminal prosecution as well as substantial damages claims. As evidenced by a recent High Court default judgment ordering a husband and wife to pay their victim R3.55m in damages. This after they used a fake Facebook profile and other channels to disseminate explicit images and videos of her.
The married man, his wife, and their victim
The victim (a highly qualified professional woman) was misled by a married man into thinking that he was single. A romantic relationship developed and deepened to the stage where he proposed marriage, and she accepted. We can only imagine her horror when, six months down the line, the man’s wife appeared out of the ether with the shocking disclosure that he was already married – with one child at home and another on the way.
The victim immediately broke off the relationship, which is when her ordeal began. The husband and wife took turns to attack her, initially with reference to what the husband called “porno videos” – explicit and intimate images and videos which he had recorded without her knowledge or consent.
The details make for grim reading, but they are important in understanding the Court’s award of substantial damages:
Firstly, the husband refused to stop seeing his victim. He visited her workplace, ignored her attorney’s letter demanding he stop communicating with her, and threatened to send the videos to her attorney, family and friends
He then created a fake Facebook profile in her name, sent her a video clip to show what he had on her, then invited her friends, family, and professional colleagues to join this fake profile. He went on to publish the videos, threatening to send them to “everyone” if she did not sleep with him. They were unfortunately seen by her friends, family, and strangers before she could get the page taken down
The second perpetrator, the man’s wife, appears to have joined in at this stage, with comments on the victim’s fake Facebook profile calculated to defame her and depict her as a dishonest, immoral, promiscuous and adulterous person who is a disgrace to her family and profession. The wife then took her attack directly to the victim’s workplace, barging in to her offices and making highly defamatory, embarrassing, and humiliating communications to her colleagues. An email to the victim’s bosses stated that she was a homewrecker and “was not an asset to the company if she slept with married men.”
Embarrassed, humiliated and unable to continue working, the victim was so emotionally distressed that she considered suicide. Stress-related medical problems, fear of going out or of forming personal relationships, and fears for her own and her family’s safety led to severe emotional trauma. She remains on medication for PTSD (post-traumatic stress disorder) and is also under long term treatment by a psychologist
The Court had no hesitation in awarding her both the damages she claimed in full – a precedent-setting R3.55m – and legal costs against the perpetrators on the punitive attorney and client scale.
But that’s not all – criminal liability could loom
The victim in this case had obtained a protection order against her tormentors. A breach of this could expose them to sentences of 5 years’ imprisonment if she decided to pursue the matter.
The husband and wife could also face serious criminal charges under the Films and Publications Amendment Act, with penalties of up to a R300,000 fine and 4 years’ imprisonment for knowingly distributing private sexual photographs and films in any medium, including the Internet and social media, without the prior consent of the individual. Moreover, the Cybercrimes Act criminalises the disclosure of data messages of intimate images where the intimate image violates or offends the sexual integrity or dignity of the person or amounts to sexual exploitation”. That Act provides for fines and up to 3 years’ imprisonment for offenders.
None of this does anything to change the victim’s suffering – but knowing that the law is on her side might provide her some solace as she inches towards recovery.
