Legal Matters – October 2026

TRANSPARENT CONVEYANCING, CLEARLY BETTER

Buying or selling a property is a significant financial commitment. At Joubert Galpin Searle (JGS), we believe that understanding the legal costs involved should not add to the uncertainty.

This is why we introduced our fixed-fee conveyancing model, which is designed to give property buyers and sellers greater certainty about their legal fees from the outset.

Traditionally, conveyancing fees have been calculated according to the value of the property. Our approach is different. JGS has introduced four clear fee tiers based on property values, making it easier for clients to understand what they can expect to pay for their transfer fees.

Following discussions around fixed-fee conveyancing, the South African Legal Practice Council (LPC) clarified that existing conveyancing fee guidelines are guidelines rather than statutory tariffs. The LPC also confirmed that there is currently no provision prohibiting legal practitioners from charging below these guidelines or adopting a fixed-fee pricing model.

For JGS, this reinforces the importance of transparent, straightforward communication with our clients.

Our professional conveyancing fees are:

Below R1.2 million: R10 000*
R1.2 million to below R3.5 million: R15 000*
R3.5 million to below R10 million: R25 000*
R10 million and above: R35 000*

These fees relate to JGS’s professional transfer fees. Other costs associated with property transfers, such as VAT, FICA, transfer duty, Deeds Office fees, rates and applicable disbursements, are excluded from our fee.

“Fixed fees should never mean compromised professional service,” says Warren Parker, Managing Director of JGS. “Our clients receive the same expertise, care and professional responsibility. What changes is the certainty they have around the professional fee.”

At JGS, we believe transparency builds trust. Transparent Conveyancing. Clearly Better. Terms, applicable costs and exclusions apply. Please feel free to contact our head office on +27 41 396 9200 for more information.

RENEGOTIATING AFTER YOU’VE SIGNED: THE EMAIL THAT ENDED A PROPERTY SALE

“Words are loaded pistols.” (Jean-Paul Sartre)

In June 2018 a couple agreed to buy a house for R1.95 million. The sale was subject to two conditions: that they sell another property within ninety days and obtain a bond for the full purchase price.

The other property was sold, but the bank approved a bond for less than the amount required. The agreement allowed the seller to accept the lower bond and regard the condition as fulfilled. It was common cause that both conditions had been met and that the sale was unconditional.

The transfer then ran into trouble. While the documents were being prepared, the Deeds Office established that one of the buyers was an unrehabilitated insolvent. The bank withdrew the bond.

The seller did not cancel at that point. She agreed to a memorandum giving the buyers several ways to resolve the problem. They could apply for the buyer’s rehabilitation, seek a bond in the other buyer’s name, or wait until the end of May 2019, when he would have been rehabilitated. None of these options were pursued.

In April 2019 one of the buyers emailed the conveyancer. He said there was no point applying for another bond until an alleged defect had been addressed. He wanted the seller to repair it or agree to a lower price, after which the buyers would apply for the bond. If she would not consider this, they would have to look at other options.

The seller treated the email as a repudiation, accepted it, and cancelled the sale.

Asking is allowed. Insisting is the problem

Repudiation occurs when one party, without lawful grounds, shows through words or conduct that they no longer intend to perform the contract. The other party may then insist that the contract be honoured or accept the repudiation and cancel.

The buyers were entitled to ask whether the seller would repair the alleged defect or consider a lower price. She was equally entitled to refuse. Unless both sides agreed to an amendment, the signed agreement remained binding.

This email went further than a request. It made the bond application dependent on the seller repairing the defect or accepting a lower price. The buyers were not offering to proceed under the existing agreement while discussing a possible change. They were saying that they would proceed only on different terms.

The Court accepted that the buyers may still have wanted the property. That did not decide the matter because repudiation is judged objectively. The question was how a reasonable person in the seller’s position would understand the email, not what its writer privately intended.

A reasonable reader would have understood that the buyers were no longer prepared to perform under the agreement as it stood. The High Court therefore found that the seller had validly cancelled the sale.

What did the cancellation cost the buyers?

The agreement allowed the seller to keep the money already paid if the sale was cancelled in these circumstances. This is sometimes referred to as rouwkoop. The Magistrates’ Court had ordered that the money be returned, but the High Court reversed that order.

The buyers also became liable under the estate agent’s commission clause because the sale had been cancelled due to their conduct. A further financial judgment was granted against them, together with interest and legal costs.

One email had therefore cost the buyers the sale, the money already paid, and a substantial additional amount (almost R150,000.00).

How can you ask for a change safely?

Make it clear that you are proposing an amendment rather than refusing to honour the existing agreement.

Asking, “Would the seller consider reducing the price?” opens a negotiation. Saying, “We will not proceed unless the price is reduced,” may allow the seller to cancel. No particular wording guarantees safety because the communication will be read as a whole and in the context of the parties’ conduct.

Deal with the price, finance, defects, and other material terms before signing wherever possible. If a problem arises after the agreement becomes binding, obtain legal advice before sending a message that could be understood as a refusal to perform.

Buying or selling property, or stuck in a transfer that has gone wrong? Speak to us before you put anything in writing.

WAS IT EVEN HIS SIGNATURE? HOW TO OVERTURN A FRAUDULENT WILL

“Beware the wolf in sheep’s clothing.” (From Aesop’s Fables)

Your relative or friend dies, having at the last minute made a new will leaving everything to a new sole heir. You’re suspicious: the deceased was vulnerable, perhaps dying or suffering from dementia, and you’re convinced that they were taken advantage of by a manipulative fraudster. What can you do about it?

The bad news is that it’s never easy to have a will set aside. Our courts have repeatedly said that they will not do so lightly, and the onus will be on you to prove invalidity. But, as a recent High Court decision illustrates, it can be done.

A sad tale of two wills

This unhappy saga revolves around the two conflicting wills of a Durban man (a “bubbly, talkative social butterfly”) who died on 8 February 2022, just a day short of his 91st birthday and living in deteriorating mental and physical health in a care home.

In his earlier will, dated 29 September 2020, he had left everything to five charities. But then on 1 February 2022, just seven days before his death, he supposedly signed a second will in which he revoked all previous wills and named as his sole heir a man who claimed to have become a “son” to him.

The charities asked the High Court to declare the second will void, and the new heir fought back with a story that he had become like a son to the deceased after supposedly saving him and his wife from a robbery in 2017. It was, he said, no surprise that the deceased had decided to leave everything to him.

The deathbed will set aside

The Court was faced with conflicting evidence from a long list of witnesses for both sides. Its final conclusion? The charities had successfully produced clear evidence that the second will was invalid on the grounds of undue influence and of fraud relating to the signature on it.

The Court identified a litany of inconsistencies, contradictions and improbabilities in the evidence supporting the new heir’s case, concluding that the entire thread of his evidence bore “the hallmarks of a carefully thought-out plan to take advantage of the vulnerable position of a frail old man who befriended someone at a local department store”.

Specifically, on the day the deceased was supposed to have voluntarily signed the second will, he was clearly at death’s door, severely distressed and frail, breathless, struggling to speak, confused and unable to feed himself. His mental capacity to sign a will was in great doubt, and a nurse had witnessed the new heir kneeling next to the deceased and trying to get him to sign papers, which the deceased refused to do, shaking his head and saying “no”. To top it all, a handwriting expert suspected elements of forgery in the second will’s signature.

No surprise then that the Court declared the deceased’s deathbed will null and void and of no force and effect, leaving the original 2020 will as his last valid will and testament.

What you must prove to have a will nullified

When you challenge the validity of a will the onus will be on you to prove your case, and courts will not lightly set aside a will. But it can be done, and the Court provided some useful pointers on what you’ll have to prove:

Competence to make a will must be assessed at the time of signing the will. The test is whether the testator’s “mind and memory were sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will”.
Undue influence requires proof of “conduct which is akin to coercion or fraud … to make a bequest that [the deceased] would not otherwise have made”.
Fraud needs to be clearly proved. As the Court put it “the threshold to meet the requisite proof to establish fraud is high”.
Forgery requires you to prove that the signature on the will isn’t authentic. In this case, there were conflicting conclusions from two different handwriting experts, and although the Court preferred the opinion of the expert who said his examination of the signature had revealed fraud, it weighed both conclusions against the evidence as a whole to assess where the balance of probabilities lay.
The probabilities supporting the charities’ case played a major role in the declaration of invalidity, with the Court expressing doubt that the deceased would have suddenly decided to disinherit the charities, especially as his 2020 bequest to them traced its roots back to a 2008 will made jointly with his wife. Clearly the charities had been close to the couple’s hearts for many years. What’s more, the charities’ witnesses were not heirs under the earlier will and they had nothing to gain beyond honouring the last wishes of a dying man they were clearly very fond of.

EMPLOYING A FOREIGN NATIONAL? WHAT YOU MUST CHECK NOW, AND WHAT COULD CHANGE

“Ignorance of the law excuses no man.” (John Selden)

(Annie Dillard)

Many trustees assume that a dormant trust can be safely forgotten. No income, no assets, no transactions … No problem.

SARS has made it clear that this assumption may be an expensive one.

In recent months, SARS has intensified its focus on trust compliance, targeting trusts that have failed to submit annual income tax returns. What many trustees may not realise is that inactivity does not remove a trust’s tax obligations.

A trust that has been sitting dormant for years is still required to submit annual income tax returns. Failure to do so can now result in administrative penalties, even where the trust has conducted little or no activity.

Dormant does not mean exempt

One of the most common misconceptions among trustees is that a trust only has compliance obligations if it earns income, owns assets, or actively conducts transactions.

That is not how SARS views the issue.

According to SARS, all registered trusts, whether economically active or passive, are required to submit annual income tax returns. The obligation exists even where the trust has little or no economic activity.

Why SARS is paying closer attention

Since May 2026, the revenue authority has been issuing administrative penalty assessments to trusts with outstanding returns following earlier final demands for compliance. Trustees who received those demands were given an opportunity to correct the non-compliance before penalties were imposed.

Depending on a trust’s assessed taxable income, monthly administrative penalties can range from R250 to R16,000 and may continue accruing if the non-compliance is not remedied.

This reflects a broader shift in SARS’ approach to trusts. What was once viewed by many as a relatively passive area of administration is increasingly becoming an area of active oversight and enforcement.

Thinking about winding up a trust?

Many trustees only discover outstanding compliance issues when they begin taking steps to terminate a trust’s affairs. By that stage, years of outstanding returns, incomplete records, or unresolved SARS obligations may need to be addressed before the process can move forward.

Importantly, a trust that has effectively ceased operating is not automatically regarded by SARS as deregistered for tax. Trustees remain responsible for ensuring that trust information is maintained, updated, and, where appropriate, formally deregistered through the correct processes.

Failure to do so may expose the trust, and potentially its trustees in their capacity as representative taxpayers, to penalties and other consequences under the Tax Administration Act.

Winding up a trust and deregistering it with SARS is not the same thing. A trust that trustees regard as dormant, inactive, or terminated is still regarded by SARS as a registered taxpayer with ongoing filing obligations until it has been properly deregistered.

The position can become particularly costly where penalties have been accumulating in the background.

As SARS continues to invest in data capabilities and automated enforcement mechanisms, historic compliance issues are becoming easier to identify and harder to overlook. In some cases, trusts that trustees believed were inactive for years are now being drawn back into the compliance net.

The lesson is straightforward: before assuming that a dormant trust requires no further attention, trustees should ensure that all filing obligations have been met and that the trust’s SARS records are up to date.

A trust may be dormant in practice, but that does not mean it has disappeared from SARS’ radar.

Government is increasing inspections aimed at employers of undocumented foreign nationals. Businesses may be the most obvious targets, but an ordinary household employing a domestic worker or gardener is also an employer.

The current law prohibits an employer from employing anyone who:

is unlawful in South Africa
whose status does not allow them to work
or whose documents do not permit the particular work they are doing

Employers must make a good-faith effort to establish that the person is entitled to perform the work for which they are employed.

What should you check?

A passport is not enough. It establishes identity and nationality but does not necessarily give its holder permission to work in South Africa.

Ask for the document on which the person relies for their right to work. Check that it appears genuine, has not expired and authorises the work being performed. Keep a copy and record when it must be checked again.

Permanent residents, recognised refugees, asylum seekers and holders of exemption permits do not all have the same right to work or the same conditions attached to their status. Domestic work and gardening are also not on the critical-skills list, making the ordinary work-visa route difficult in practice.

A person may nevertheless be entitled to work through permanent residence, refugee status, asylum documentation permitting employment or an exemption permit, such as the Zimbabwe Exemption Permit. The important question is whether the particular document authorises the particular work. If in doubt, ask us.

What if the documents do not check out?

There may be no quick administrative solution. Continuing to employ someone who is not entitled to work can expose the employer to criminal liability, but dismissing the person immediately can create a separate employment dispute.

Foreign workers do not lose their employment rights merely because their immigration status is irregular. In a recent case, the High Court set aside the immediate termination of a municipal employee whose work permit had expired. The municipality could not use his immigration status to avoid giving him the notice required by employment law.

If a check reveals a problem, speak to us before continuing or ending the employment relationship. The employer’s immigration obligations and the worker’s employment rights must both be addressed.

What could the Bill change?

The Employment Services Amendment Bill would introduce additional duties when employing foreign nationals. As currently drafted, an employer may have to establish that no suitable South African citizen or permanent resident is available for the vacancy and prepare a plan for transferring skills to South African employees, unless an exemption applies.

The Minister could also set limits on the employment of foreign nationals in particular sectors, occupations or areas. Employers outside the public sector with fewer than ten employees would be excluded from these quota provisions, but not necessarily from the Bill’s other requirements.

The proposed penalties are significant. An initial contravention could attract a fine of up to R100,000, with higher maximum fines for repeated non-compliance.

These fines would not apply only to employing undocumented workers. An employer could employ someone who is legally entitled to work but still contravene the proposed law by failing to conduct the required recruitment check or prepare a skills-transfer plan.

Is the Bill already law?

No. The Bill is before Parliament and may change before it becomes law.

However, employers already have a legal duty to ensure that foreign employees are entitled to work in South Africa and to perform the particular work for which they were hired. Breaching the existing law can already result in criminal penalties. The Bill would add further duties and penalties.

Employing a foreign national at your business or home? Speak to us if you are uncertain about their documents or your obligations.

CAN YOUR COMPLEX CUT OFF YOUR BIOMETRIC ACCESS OVER UNPAID LEVIES?

“Force is not a remedy.” (John Bright)

The facts

The owner had two properties in a residential estate in Midrand, one of which she leased to tenants. A dispute had arisen between her and the association over levies and other charges.

The association had already sued her in the Magistrates’ Court for the amounts it claimed were outstanding. She disputed both her liability and the amount claimed. While that case was still pending, the association disabled fingerprint and facial recognition access for her and her tenants, forcing them to use the visitors’ lane.

The owner then approached the High Court to have their biometric access restored. The levy claim remained before the Magistrates’ Court.

Can an estate use access to enforce payment?

The association pointed to its Memorandum of Incorporation, which allowed it to withhold biometric access where a member was in breach, including by failing to pay an amount due. But the alleged default was already the subject of the separate Magistrates’ Court dispute. The owner denied that she owed what the association claimed.

The High Court held that the association could not decide for itself that she was in default. Claiming a breach while the dispute remained unresolved was premature, and by cutting off access on that basis the association was itself in breach of the relationship it was purporting to enforce.

It also left the association occupying three roles at once:

the judge of whether dept existed
the judge of what should follow
the party that carried out the sentence

That is the kind of self-help the law does not permit.

Is biometric access part of possessing your home?

The owner relied on the mandament van spolie, a remedy that restores the previous position without first deciding who is right in the underlying dispute.

The Court held that biometric access was linked to possession of the property. Unlike a separately supplied service such as electricity, it existed to facilitate entry to a home the residents already possessed. Removing it therefore interfered with their possession.

But they could still get home

The association argued that nobody had actually been locked out. The owner and her tenants could still enter through the visitors’ lane.

The Court rejected this argument. What had been taken away was the particular method of access the residents had previously exercised. Once biometric access was recognised as an incident of possession of the property, the fact that they could still use the visitors’ lane was irrelevant.

What about the gym and other amenities?

The Court drew a line between access to the property and access to recreational facilities.

Access to the gym, tennis courts, squash courts, and clubhouse was separate from access to the owner’s property, so it could not be restored using the same remedy. The Court nevertheless indicated that removing access to those amenities while the court process was pending and without a court order was prima facie unlawful. It was simply the wrong remedy for that part of the complaint.

The association was ordered to immediately restore fingerprint and facial recognition access for the owner and her tenants, and to pay the costs of the application, including legal costs.

The judgment does not allow homeowners to ignore levies they lawfully owe. It does, however, confirm that an association cannot disable access to a resident’s property to force payment of a disputed debt.

Embroiled in a levies dispute? Speak to us about your rights and the appropriate legal remedy.

For more information, please feel free to contact our offices on +27 41 396 9200

Disclaimer: This is a general information sheet and should not be used or relied on as a legal or other professional advice. No liability can be accepted for any errors or omissions or for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

All articles in this newsletter are the copyright of @LawDotNews