South African courts have adopted the abstract theory, which means that the validity of transferring ownership is not affected by whether the original transaction is valid.
In the case of Legator McKenna Inc. v Shea [2009]...
A restraint of trade agreement is generally contained in a contract of employment.
The purpose of such a restraint of trade clause is to protect businesses from unfair competition by former employees or partners and safeguard...
Being a minority shareholder can leave you powerless in situations where decisions are made against your wishes. Most Memorandums of Incorporation (MOIs) typically require a 75% majority vote for special resolutions to pass, regardless of...
The difference between employees and independent contractors carries significant weight within the employment law sector. Being considered an employee affords you a plethora of protections and dispute resolution mechanisms, while the other, not so much....
It often happens that a tenant, for whatever reason, refuses, neglects or is unable to pay rent and falls into arrears. A landlord, frustrated with the tenant and the legal eviction process, may be tempted...
In essence, the Latin phrase nec vi, nec clam, nec precario translates to “without force, without secrecy, and without permission”. According to the Prescription Act, a person can become the owner of property through prescription...
Homeowners' Associations (HOAs) are a critical component of shared developments in South Africa, managing everything from noise levels to pet policies. While they offer many benefits, the legal framework surrounding HOAs can be complex, involving...
What happens if all the trustees of a sectional title scheme resign? Who is then in control of the management, and who is entitled to continue exercising the function and powers of the body corporate,...
In recent years, bond switching has become an increasingly popular choice among homeowners looking to reduce their monthly payments, access better loan terms, or take advantage of improved interest rates. But is switching your home...
When faced with a legal issue or dispute many individuals want to know and understand the difference between an attorney and an advocate. This curiosity is understandable as it may seem like they do the...
Bail is an integral part of the South African justice system, allowing individuals accused of crimes to remain free while awaiting trial, provided they do not pose a risk to society or the judicial process....
In South Africa, the process of making arrests is governed by the Criminal Procedure Act 51 of 1977 as amended (CPA), which outlines the legal framework for law enforcement officials when apprehending individuals suspected of...
The term ‘antenuptial contract’ can refer to either an informal contract or a contract complying with the formalities required by s 87 of the Deeds Registries Act 47 of 1937. The public is not always...
A lack of information or comprehension of the Commission for Conciliation, Mediation, and Arbitration (Hereinafter the “CCMA”) and its processes can prevent the public from taking advantage of the commission's accessible and low-cost services, causing...
In a recent judgment by the Supreme Court of Appeal, the case of Z v Z examined whether a parent has the legal standing to claim maintenance for adult dependent children from the other parent....
We like to advise you that CMM Attorneys Inc. are relocating to a new office. This decision comes as part of our continuous efforts to improve our facilities and streamline our business operations. We deeply...
As mentioned in Part I of this series, a common trend in many commercial contracts is the inclusion of an arbitration clause. This type of clause is often accompanied by a mediation clause which requires...
One way to acquire property in South Africa is through acquisitive prescription. This method does not rely on the transfer of rights from a predecessor in title; instead, it acknowledges specific factual criteria that, when...
An important function of an executor, the person who is appointed by the Master of the High Court to administer a deceased estate, is to account for the liabilities in the estate of the deceased....
People who have not studied law or have no prior knowledge of the law may be confused and uncertain when served with a legal document called a “subpoena” which states that they should attend and...
In a recent legal dispute, the court's ruling brought to the forefront a perplexing issue that has long plagued the legal landscape: the classification of settlement agreements under the National Credit Act (NCA). The court's...
Before the Matrimonial Property Act 88 of 1984 (MPA)(1) was introduced, matrimonial property law in South Africa was governed by the immutability principle. This principle dictated that the property regime chosen by a couple at...
If you are considering buying a property in a housing development, it’s essential to understand what a Homeowners Association (HOA) is and how it operates.
HOAs are legal entities responsible for managing and regulating housing development...
Most South Africans today, are overburdened and overwhelmed with debt and are struggling to repay creditors. According to recent statistics, a third of people in South Africa with credit are struggling to repay their debts....
People who have not studied law or have no prior knowledge of the law may be confused and uncertain when served with a legal document called a “subpoena”, which states that they should attend and...
A common trend in commercial contracts is the inclusion of a mediation and/or arbitration clause. As a general point of departure, these clauses require the parties to the contract to refer any dispute arising from...
With the vast majority of homes being financed through the country’s biggest banks, the popular online debate around who owns a mortgaged home in South Africa continues.While some would argue that the bank owns your...
Contrary to popular belief, an engagement is not a mere social agreement. South African common law recognises an engagement (or promise to marry) as a contract from which some contractual remedies may flow. The engagement...
The wrong tenant can have a lasting negative effect.The residential property industry continues its upward trajectory, and investors are getting in on the action. However, with the rise of investors choosing to take advantage of...
South Africa has made significant strides in combating domestic violence and protecting the rights of its citizens. The Domestic Violence Act 116 of 1998 (DVA) and the Protection from Harassment Act 17 of 2011 (HA)...
Ignoring a court order in South Africa is a serious matter that can lead to significant legal consequences, including being held in contempt of court. This article explores what happens when someone chooses to disregard...
When one thinks of a will, the first thing that comes to mind is probably a last will and testament. This type of will expresses a person’s wishes after they have died.However, a living will,...
Understanding the real estate market is crucial when buying or selling a property. The market's current favour, whether for buyers or sellers, significantly impacts your decisions and strategies.
Buyers’ market: When the real estate market leans towards...
In South Africa, an antenuptial contract (ANC) is a critical legal document that determines the matrimonial property regime of a marriage. While the online creation of ANCs offers convenience and cost-effectiveness, there are significant factors...
In community of property marriages, spouses often combine their estates, or mass their estates, to ensure that certain assets go to specific beneficiaries. This is done while still ensuring the surviving spouse's welfare and protecting...
The contents of an “inelegant and very badly drafted” will were recently the subject of a dispute in the South Gauteng High Court, in the matter Strauss vs Strauss and Others.
The plaintiff instituted action claiming...
When buying immovable property, the offer to purchase serves as an agreement between buyer and seller. Within this document, certain clauses demand meticulous attention from both parties. These clauses outline the rights, obligations, and procedures...
The emergence of digital ghosts on social media
Social media platforms have become integral to our daily lives, but what happens to these digital profiles when a user passes away? Research by Carl J. Öhman, a...
In South Africa, the number of couples who are permanently living together in life partnerships is increasing every year. What are the consequences that would ensue if either of the partners in the relationship dies...
Professor C.G. van der Merwe, the doyen of sectional titles in South Africa, sets out the reasons for introducing sectional ownership into a legal system. He states that these reasons or aims are similar worldwide...
Regardless of socioeconomic background, all South Africans will have access to high-quality medical care through the National Health Insurance institution, which finances healthcare. As a result, all South Africans would have free access to high-quality...
When considering the purchase of a unit within a complex, it's crucial to look beyond the surface-level expenses such as the advertised levies. Without thorough research, potential buyers may find themselves facing unexpected financial burdens.
The...
Residential homeowners must be aware of the judgment handed down by the Supreme Court of Appeal (SCA) in the case of the City of Johannesburg Metropolitan Municipality v Zibi (234/2020) [2021] ZASCA 97 (9 July...
The rouwkoop clause, frequently featured in agreements between sellers and purchasers, grants the seller the right to retain a portion or a specified amount of the payment if the agreement is cancelled.
The general principle, which...
In South Africa, the Rental Housing Act lays out important dos and don'ts for landlords. By adhering to these guidelines, landlords can maintain positive, lawful relationships with tenants, ensuring a fair and transparent renting experience...
The Maintenance of Surviving Spouses Act 27 of 1990 permits surviving spouses to seek maintenance from the deceased spouse's estate upon the marriage ending due to death. This claim lasts until the survivor's death or...
Disputes with neighbours can be challenging, often requiring tactful and legal approaches to resolve them effectively. In South Africa, these disputes can range from noise complaints to boundary issues. Understanding the legal avenues available can...
In South Africa, the process of cancelling a mortgage bond is commonly necessitated when a property is sold or the bond is fully paid off. This procedure is intricate, consisting of several critical steps:
Step 1:...
The Western Cape High Court recently examined whether a person had the intent to revoke their existing will. The deceased, hospitalised with COVID-19, expressed a desire to revoke their will and draft a new one....
Managing a deceased estate can feel overwhelming, like a puzzle with too many pieces. At CMM Attorneys, we're here to simplify this process, offering clear guidance and support to lighten your load during a tough...
Navigating the world of property law can be a bit daunting, but with CMM Attorneys, you have a knowledgeable ally on your side. Understanding property law is crucial, as it encompasses all assets forming part...
In the framework of South African law, tenants enjoy a substantial degree of protection. However, landlords retain the right to legally evict tenants under certain conditions. A tenant who breaches their lease agreement may be...
Litigation can be a complex and costly process, requiring time, resources, and a thorough understanding of the legal system. For individuals and businesses in South Africa facing legal disputes, the decision to pursue litigation should...
A judgment granted by a foreign court is not directly enforceable in South Africa but constitutes a prima facie proof of debt (the clearest possible proof of debt). One would still need to institute an...
As interest rates continue to rise, many homeowners find themselves contemplating the idea of fixing their home loan interest rates. Initially, when the interest rate hike began after the historically low rates experienced in 2020,...
This article will briefly consider the definitions of common property vis-à-vis sections in terms of the Sectional Titles Schemes Management Act 8 of 2011 in order to establish who must maintain what in sectional title...
The simple answer is no. However, the National Building Regulations and Building Standards Act mandates that local authorities approve building plans for the construction, alteration, or conversion of a building. Consequently, if approved plans are...
Uncover the truth about driving under the influence (DUI) in South Africa.
Learn about the strict laws, legal limits, and severe penalties for offenders. Find out how to estimate your blood-alcohol concentration and make responsible choices...
A servitude is a limited real right which entitles its holder either to the use and enjoyment of another person’s property or to insist that such other person shall refrain from exercising certain entitlements following...
How is it possible that someone can obtain judgment against me, without my knowledge of any summons issued against me or a court date to state my side of the story?
Well, in our law this...
The Constitution of South Africa enshrines the right of everyone to have access to adequate housing. This places a mandatory duty on the state to achieve this right for all South Africans through its available...
At CMM Attorneys, we believe in more than just offering traditional legal services. We recognise the dynamic nature of the modern world and the need for legal solutions that evolve with it. By seamlessly integrating...
The purchaser signs an agreement of sale with the seller. The property is transferred into the purchaser’s name. A month later, there is heavy rainfall and they realise that the roof is leaking. Is the...
The Trust Property Control Act, a key piece of legislation governing South Africa's trusts, recently underwent a substantial transformation with the passage of the General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Act. This...
A marital regime determines how parties’ assets will be managed and divided during their marriage and in the event of divorce or death. Changing the marital regime can provide parties with greater financial flexibility and...
Life is unpredictable, and while we don't like to dwell on it, death can come without warning. With this uncertainty, it's essential to ensure you have a solid plan for your assets, ensuring they reach...
Estate planning is a critical part of financial planning, yet it often gets overlooked. This process involves drafting a will, assigning assets to beneficiaries, and understanding how a deceased estate will be administered. To shed...
Navigating the world of lease agreements can be complex and fraught with potential pitfalls. In South Africa, these agreements are an essential tool for establishing clear expectations and protecting the interests of both landlords and...
I gave instructions to my attorney to prepare a Will for me as my most recent Will no longer reflected my wishes. My attorney emailed the Will to me with clear instructions as to how I should go about signing the Will....
Fraud can be defined as the unlawful and intentional making of a representation that causes actual or potential prejudice to another. Parties often act on the strength of another’s representation in order to commit some...
Parties to a contract more frequently than not insert a “Consent to Jurisdiction” clause which allows the grieving party the opportunity to approach the relevant Magistrates Court without having to prove jurisdiction. Section 45 of...
Any person drawing up a last will and testament, and who intends to include an option to purchase any of their properties, should be aware of the transfer duty implications such provision might bring forth....
It’s our birthday! Today we are so thankful and excited to share our 10th birthday with you, our loyal clients. It’s because of our relationship that we are here bringing out the silver streamers.
Looking back...
A winter wedding holds a unique charm, offering the opportunity to embrace the season's enchantment and create a memorable celebration. From creating a cosy ambience to ensuring the security of your future, there are various...
Analysing the affordability of SA’s residential property market
South Africans continue to tighten their belts as the pressure of rising interest rates, inflation, and other varying economic factors put household income under strain.
This puts the affordability...
Property Practitioners who now need to hold a Fidelity Fund Certificate, unless excluded, to practice in terms of the Property Practitioners Act, 22 of 2019, may have certain questions regarding the application process to obtain...
I gave instructions to my attorney to prepare a last will and testament for me as my will no longer reflected my wishes. At my request, my attorney emailed the will to me with clear...
First things first, the woman claiming child support for a child born out of wedlock must prove paternity. In Sager v Bezuidenhout it is clear that both parents must contribute to the minor child’s needs...
Many of us are still recovering from the harsh effects of the Covid-19 pandemic. Some of us are faced with the issue of not being able to meet our financial obligations. One such obligation could...
Should a land owner obtain an eviction order prior to the removal of informal settlement structures erected unlawfully, and without the land owner’s consent, on his or her private property? When living in South Africa,...
Real estate transactions can be complex and challenging, often presenting clients with a range of obstacles to overcome, from legal complexities to time constraints and negotiation hurdles. However, with the expert guidance and support of...
In South Africa, "air rights" are typically understood to be development rights that are approved for walkways, bridges or other constructed crossings over roads. These also include shared borders or public spaces, and frequently come...
Tips for landlords when their tenant does a disappearing act.
Everyone who has let out property knows that sickening feeling when you find out that your tenant has disappeared.
Most of the time there are signs—usually unpaid...
This article will briefly look at two actions that can be instituted simultaneously, and an alternative to each other, when you have been wrongfully deprived of possession of your property. The first action is the rei...
The Supreme Court of Appeal (SCA) recently deliberated on whether a court sanction is necessary to validate the sale of shares owned by a trust to a company controlled indirectly by two of the trustees...
There is a duty on the Seller when selling an immovable property to provide certain certificates of compliance to the Purchaser.
There are five compliance certificates that the Seller is required to obtain at his/her own...
The Purchaser signs an agreement of sale with the Seller. The property is transferred into the Purchaser’s name. A month later, there were heavy rainfalls and the roof leaks. Is the Seller liable to repair...
The Supreme Court of Appeal (SCA) recently deliberated on whether a court sanction is necessary to validate the sale of shares owned by a trust to a company controlled indirectly by two of the trustees...
Starting a business takes careful planning and involves compliance with certain legal requirements. It is important to understand the relevant regulations and legal requirements to be complied with, so you can make sure you do...
The upfront investment is high, which you’ll want to recover when you sell.
Stage 6 loadshedding is now firmly in effect, many South Africans are without power for up to 12 hours each day, and the...
A servitude can be described as a limited real right that can either provide the holder with the use and enjoyment of another person’s property or restrict the person, with the right of ownership, to...
In 2018 the National Consumer Commission (NCC) investigated the vacation ownership and time-share industry after various consumer complaints were submitted to the Consumer Protection Tribunal. [1]
The majority of the complaints received and raised during the...
Discussing an antenuptial contract might not be the easiest of conversations to have with a prospective spouse. However, it is important to be aware of the benefits of an antenuptial contract while you are happily...
Scenario: Assuming the divorcing parties enter into a parenting plan in respect of their children which contains the following clause: “If the parties are unable to reach an agreement on any major joint decisions in...
Bigger deposits mean a smaller loan and a better interest rate.
Rising inflation and several interest rate hikes have many South Africans trying their best to keep their costs down where possible, and this has also...
Fraud can be defined as the unlawful and intentional making of a representation that causes actual or potential prejudice to another. Parties often act on the strength of another’s representation in order to commit some...
The Rental Housing Amendment Act[1], section 4B (4) and (5) determines that the tenant and property owner must jointly, before the tenant moves into the dwelling, inspect the dwelling for any defect and damage. It...
Parties to a contract more frequently than not insert a “Consent to Jurisdiction” clause which allows the grieving party the opportunity to approach the relevant Magistrates Court without having to prove jurisdiction. Section 45 of...
First things first, the woman claiming child support for a child born out of wedlock must prove paternity. In Sager v Bezuidenhout it is clear that both parents must contribute to the minor child’s needs...
