Heidtmann & du Preez Attorneys

05/06/2026

Dodgy Deck: When a Property Defect is Your Problem, Not the Seller's
"The buyer needs a hundred eyes, the seller not one." (George Herbert)

A Marina Da Gama property. A collapsed wooden deck. A purchase price of R1.55 million and repair costs claimed of just over R100 000. The facts are not complicated. But the legal battle that followed lasted more than a decade.

What happened

The buyers purchased a residential property in October 2013 after the estate agent described it as being in stunning condition. They took occupation in January 2014. Seven months later, the upper wooden deck collapsed. Expert evidence subsequently confirmed that the decks had been constructed without approved plans and were not built to National Building Regulations standards. The defects were latent, meaning they were not visible to a layperson on inspection.

The buyers pursued the estate agent, his close corporation, and the seller across eight separate claims. At the close of the buyers’ case, the defendants asked the court to dismiss the matter on the basis that insufficient evidence had been presented against them. The court agreed and dismissed all the claims.

“Stunning” is not a structural warranty

The buyers argued that the estate agent's description of the property as being in “stunning” or “beautiful” condition amounted to an actionable misrepresentation. The court disagreed.

Descriptive sales language of that kind is puffery. It reflects aesthetic opinion, not structural fact. It does not amount to a representation about the integrity of the building, compliance with approved plans, or the absence of latent defects. To cross from puffery into misrepresentation, a statement must assert a verifiable fact. Words like “stunning” do not do that.

The estate agent's duty of disclosure, under the legislation applicable at the time, extended to material facts within his personal knowledge. It did not require him to conduct engineering or technical investigations to uncover hidden structural defects. The defects would not have been visible to a layperson. They were not within his knowledge. No actionable misrepresentation was established.

The voetstoots clause held

The sale agreement contained a voetstoots (as it stands) clause. To defeat it, the buyers were required to prove two things: that the seller had actual knowledge of the latent defect, and that he deliberately concealed it with the intention to defraud.

Neither was established. The buyers' own evidence undermined the claim. Both buyers described the seller as a decent, honest person. One stated plainly that the seller did not know about the defects. Quick-fix repairs noted by the experts did not change that conclusion. Repairs may reflect ordinary maintenance. They do not, on their own, establish knowledge of a structural defect or an intention to deceive. Fraud is not lightly inferred.

Getting the damages calculation wrong

Even if the buyers had established liability, their damages claim faced a separate problem. The actio quanti minoris, a claim for a reduction in the purchase price, entitles a buyer to compensation for the property’s reduced value caused by the defect. The reasonable cost to repair may serve as evidence of that reduction, but no more. The buyers simply claimed replacement costs, which was entirely the wrong way of going about it.

In plain terms

Puffery is not a promise – in fact, it’s to be expected in real estate listings. A voetstoots clause is not easily defeated. And the burden of investigating a property before signing rests firmly on the buyer.

Nine court days. Twelve years. Presumably substantial legal costs. Every claim dismissed. Get advice before you sign, not after the deck collapses.

28/05/2026

Reckless Lending: You Could Lose Everything
“One of the greatest disservices you can do a man is to lend him money that he can’t pay back.” (Jesse H. Jones, entrepreneur)

A recent High Court decision provides yet another cautionary tale for lenders. The stakes are high: get this wrong, and you could lose everything.

Two big risks for lenders

Before you lend, be aware of two major risks that you need to manage. Both are imposed by the National Credit Act (NCA):

Not registering as a credit provider: If you lend money without registering when you were required to do so, your agreement will be invalid and unenforceable. You will lose everything unless you can convince a court to make a “just and equitable” order allowing you at least a partial recovery. This is by no means guaranteed, so a risk not worth taking.
As a general guideline, if your loan is made at “arm’s length” you will probably have to register. In contrast, loans not made at arm's length – such as informal loans between family and friends, or between related companies in a group – may be excluded. But the rules are complex and our courts have had to wrestle with several borderline cases over the definition of “arm’s length”. There is no substitute for advice specific to your situation.

Note that even a single qualifying loan, of any size, can trigger the requirement. The thresholds that previously limited it to commercial lenders and to larger loans fell away in 2014 and 2016 respectively.

Reckless lending: Let’s turn now to the second risk, which applies whether you are properly registered as a credit provider or not. We’ll illustrate it with a recent High Court decision in which a family trust’s lending was held to be reckless and therefore irrecoverable.
A family trust lends R430k to a heavily indebted couple

A SAPS employee and her husband, heavily indebted to a range of creditors, approached a debt consolidation business for help in 2012.

Having carried out its version of the credit assessment required by the NCA, the debt consolidator organised a lifeline for the couple in the form of a R430,000 loan from an investor (a family trust) to pay off their debts. The loan was secured primarily by a bond over the couple’s house in Kraaifontein. A secondary security in the form of a sale agreement by the couple to the trust was to be held in reserve and activated only in need. The idea was that, after a short period of financial rehabilitation, the borrowers would refinance the loan through a bank, but that never happened.

When the borrowers defaulted on their repayments, the trust sued for R430,000 plus interest (a lot of money at 17.1% p.a. for 10 years), and an order allowing it to sell the couple’s bonded house to satisfy the debt.

The Court declared the credit agreement “reckless credit” and set it aside. The trust must now write off the balance of its loan and interest, cancel its bond over the couple’s house, and pay all the legal costs. Its only consolation is that the Court, in exercising its discretion to structure a just and equitable solution between the parties, allowed the trust to keep the R251,325 already paid to it.

What went wrong?

Why did the lender lose so badly? In a nutshell, the affordability assessment performed by the debt consolidator was flawed. Instead of asking whether the couple could afford this loan based on their existing financial means (as required by the NCA), the assessment relied on “a risky potential of future funding”, i.e., the speculative prospect of a mainstream bank granting a further loan in the future. The borrowers had always been over-indebted, this new loan made their situation even worse, and therefore the lending was reckless.

Lenders: How to avoid a “reckless lending” declaration

NCA regulations in force since 2015 set out in detail the various technical criteria and formulae to be used in assessments. This is just an overview of what you need to cover:

Perform a proper credit assessment: This is make-or-break. It is a specific and fundamental requirement of the NCA that you carry out a proper assessment before granting credit, and you must be able to prove that you did so with documentary backup if challenged.
Confirm affordability: Assess income, expenses, and existing debt, verifying everything with proper salary slips, bank statements, etc. As we saw in the case above, affordability must be assessed on the borrower’s current “financial means, prospects and obligations”, not future hopes or prospects. You must establish the borrower’s “discretionary income” by subtracting from total income all monthly deductions, living expenses and the like, with reference to a table of “norms” set out in the regulations.
Check repayment history: You must take into account the borrower’s debt repayment history under other credit agreements.
Explain everything fully to the borrower: Make sure the borrower fully understands the structure of the loan, the total costs, obligations, and risks. Use plain, non-technical language to avoid any claims of confusion or deception.
Avoid over-indebtedness: You must be able to show that the repayment plan is realistic and affordable to avoid a finding of over-indebtedness.

21/05/2026

She Fell Out of a Safari Vehicle: When Disclaimers Fail
"The big print giveth and the fine print taketh away." (Tom Waits)

You have almost certainly signed a disclaimer at some point. A waiver before a trail run, an indemnity form before a bungee jump, a clause buried in a brochure. Businesses rely on these documents to limit their exposure when things go wrong. A 2026 Supreme Court of Appeal judgment is a sharp reminder that a disclaimer is only as good as the process behind it, and that courts will not lightly allow a company to escape liability on the strength of fine print that was never properly agreed to.

A birthday surprise that ended in serious injury

An Australian tourist was travelling in a converted safari truck in Botswana as part of a Southern African tour arranged by a safari business. The trip had been booked by her life partner as a birthday surprise, without her knowledge. While the truck was moving, she stood up to access her locker, which the tour operator actively promoted as accessible while the vehicle was in motion. She lost her balance and lurched against a window which fell out of its frame. She fell through the opening onto the tar road and sustained serious injuries.

When she sued for damages, the company relied on two disclaimers. The courts were not persuaded.

When does a disclaimer actually bind you?

The party relying on a disclaimer bears the onus of proving that a binding agreement was concluded. That requires more than paperwork. Our law requires the following:

Personal consent. A disclaimer binds a person only if they have personally agreed to it, or if someone signing on their behalf had proper authority to do so. A life partner, family member, or friend cannot sign away your legal rights without your knowledge and express authorisation.
Adequate notice. The disclaimer must be displayed with sufficient prominence to reasonably come to the attention of the person against whom it is enforced. Burying a liability exclusion under an “Insurance” heading does not meet that standard.
Specific and unambiguous wording. Disclaimers are interpreted restrictively. General wording will not exclude liability for negligence unless it does so clearly and unequivocally. Ambiguity counts against the party that drafted the clause.
Consumer Protection Act compliance. Where serious injury or death is a risk, sections 49 and 58 of the CPA require that the risk be specifically drawn to the consumer's attention in plain language and in a conspicuous manner before the activity commences.
Two disclaimers, two failures

Both disclaimers relied on by the business failed these requirements. The first, buried in a brochure under an insurance heading, was too general to clearly exclude liability for the negligence alleged and had not been adequately brought to the victim’s attention. The second was an indemnity form signed by her partner without her knowledge. The SCA found no credible evidence that she was even aware of its existence. The business had only itself to blame. It had failed to ensure that each participant had personally concluded a binding indemnity.

The Court further indicated that having actively promoted the conduct that caused the injury, any disclaimer purporting to exclude liability for it would likely have been contrary to public policy and thus unenforceable.

What this means for businesses and consumers

Businesses operating in high-risk environments cannot afford to treat indemnity documentation as a formality. A disclaimer is not a substitute for safe practices and proper risk management. Consent cannot be assumed, and general wording will not suffice.

For consumers, your right to bodily safety is not easily signed away, especially by someone else on your behalf.

The lesson is straightforward. A disclaimer must be clearly communicated, properly understood and formally agreed to. It will not protect a business where consent is absent, notice is inadequate, or the wording does not clearly cover the risk.

If your indemnity documentation needs reviewing, or you are unsure of your rights as a consumer, ask us.

14/05/2026

Bad Manager or Workplace Bully? Where the Law Draws the Line
"To avoid criticism, do nothing, say nothing, be nothing." (Elbert Hubbard)

An unpleasant boss. A strained working relationship. A manager whose style leaves much to be desired. Sound familiar? For many employees, the line between a miserable workplace and an unlawful one is frustratingly blurry. A 2023 Labour Court judgment helps draw that line more clearly. And the verdict may surprise some employees who’ve been banking on a harassment claim.

A senior official takes her employer to court

A Deputy Director-General at the Department of Justice and Constitutional Development referred a claim of unfair discrimination to the Labour Court. She alleged that she had been harassed on arbitrary grounds (as opposed to listed grounds like “race” or “gender”) in contravention of the Employment Equity Act (EEA).

Her complaints were wide-ranging: inadequate administrative support and resources, the removal of some of her work functions and reportees, what she viewed as selective disciplinary sanctions, a precautionary transfer she experienced as a demotion, being denied international travel and refused leave requests, plus a failure by the Department to consider her grievances.

The Court dismissed her claim in full.

What does “harassment” actually mean in law?

The Court was at pains to distinguish between exercising ordinary managerial authority and conduct that crosses into unlawful harassment. The two are easily confused, and employees sometimes interpret unwelcome management decisions as harassment simply because the consequences are unpleasant.

For conduct to constitute harassment under the EEA, it must meet an objective test. It must:

Impair the employee's dignity. Feeling sidelined or unhappy is not enough. The conduct must cause demonstrable harm to dignity.
Create a hostile or intimidating work environment. Tension and friction are regrettably common in workplaces. The bar is higher than mere discomfort.
Be linked to a prohibited or arbitrary ground. This is the element that catches many claimants off guard. An "arbitrary ground" is an unlisted personal characteristic, but it must be inherent to the person, form the basis for the ill-treatment, and result in substantial harm comparable to listed grounds like race or gender. Generalised management decisions, however unwelcome, do not qualify.
Crucially, the test is objective, not subjective. What matters is not solely how the employee experienced the conduct, but how a reasonable person would assess it in context.

Where the DDG’s case fell short

The Court found that, objectively assessed, her complaints amounted to the unpleasant consequences of management decisions rather than harassment in the legal sense. Significantly, she was unable to explain why the treatment she experienced amounted to unfair discrimination. A bald allegation is not sufficient. Employees must clearly establish the link between the conduct and a dignity-impairing ground.

What employers and employees should take from this

Employers may take some comfort here. Issuing instructions, reallocating duties, managing performance, declining travel requests, and initiating investigations are ordinary management functions. Provided those decisions are rational, grounded in legitimate operational reasons, consistently applied, and properly documented, they will not automatically expose employers to harassment claims.

That said, the Court was clear that managerial discretion has its limits. Decisions must be fair, transparent, and free from personalisation or arbitrary whim. When they are not, they may give rise to legal challenge.

Employees should be aware that the EEA is not a catch-all for general workplace dissatisfaction. If your complaint relates to a transfer, disciplinary steps, or benefits, the proper route is likely the Labour Relations Act's unfair labour practice framework, not an EEA harassment claim.

The distinction between a difficult manager and a workplace bully matters enormously, both legally and practically. If you are uncertain which side of the line your situation falls on, come and talk to us.

10/05/2026

08/05/2026

Bodies Corporate and HOAs: Apply Your Rules With Common Sense, or Else
"Good rules make good neighbours." (Old proverb, updated)

The many benefits of living in a residential complex come, naturally enough, with obligations as well as rights.

With its innate potential for conflict between competing rights, community living requires a fine balancing act between the individual rights of owners and residents, and the rights of the community as a whole.

Good rules make good neighbours

Which is of course where a complex’s rules and regulations come into play. Rules provide a structured framework to regulate issues of common concern. Management rules concentrate on administrative and financial issues, while conduct rules (which we’ll focus on in this article) address issues such as noise, pets, parking, use of common property and so on. They are essential not only for protecting everyone’s individual and communal rights, but also to minimise disputes, ensure long-term sustainability and maintain property values.

A well-managed complex benefits everyone – residents, investors, landlords etc.

The sight-impaired owner and his washing machine

Of course, conduct rules are meaningless without enforcement, and that exposes everyone concerned to another balancing act: consistent enforcement versus over-rigid and unconstitutional enforcement.

A recent Supreme Court of Appeal (SCA) decision highlighted this in the case of a complex with a communal washing area.

Before buying his unit in a complex in Gauteng, a visually-impaired man was assured by the estate agent – incorrectly as it turned out – that he would be entitled to modify the washing area directly outside his unit. He duly, without body corporate authority, moved his washing machine into the area and installed piping and a tap, with a security gate and plastic roof sheeting to protect it from the elements. All this, he said, was necessary both to ensure his safety (he cited the danger of slipping in water leaks which he wouldn’t be able to see) and security for his washing machine and clothes.

The body corporate was having none of that and removed the gate and plastic sheeting, citing its conduct rules which prohibit any owner from making alterations to the common washing area. It refused his request for an exemption from the rules on account of his visual impairment, a mediation attempt failed, and eventually his appeal against a CSOS (Community Schemes Ombud Service) ruling found its way to the SCA.

What came out in the wash

The end result? The body corporate is ordered to allow the owner exclusive use of a portion of the common washing area for his washing machine, plus he can install a protective cover over it at his own expense. He must maintain both in good repair, cannot damage the common area wall, has to pay a contribution levy, and must make good all changes when he leaves.

The Court’s reasoning gives us a clear roadmap to our rights, both as bodies corporate and HOAs trying to enforce rules and regulations, and as owners feeling prejudiced by unjustifiably rigid enforcement of them:

The duty to reasonably accommodate persons with disabilities: Our Constitution prohibits unfair discrimination and enshrines a right to dignity and equality as per the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) which prohibits any failure to take steps to reasonably accommodate persons with disabilities.
When rigid enforcement of rules isn’t justified: The body corporate’s refusal to accommodate the owner in this case didn’t take into account that his modifications were necessary for safety reasons, they were proportionate, tailored for his disability, and confined to what he considered essential to prevent harm to himself. They caused no undue inconvenience or hardship to other members of the scheme, nor any expense for the body corporate. Its rigid attitude in enforcing its conduct rules was not justified, and its failure to give him its conduct rules electronically or in Braille was unjust.
What does “reasonable accommodation” entail? Perhaps the most critical of the Court’s findings is this: “To achieve the objective of equality, I find that reasonable accommodation in a case like this may include allowing structural modifications, granting exclusive rights or exempting disabled residents from burdensome rules.”
The “minimum hardship to members” principle: At the same time, a body corporate must, in establishing what is and isn’t reasonable in the circumstances, “espouse the principle of minimum hardship to its members”. Witness the strict limits imposed by the Court in this case on the unit owner’s rights of usage.
Thin end of the wedge or just a balancing act?

There may be some concern amongst bodies corporate and HOAs that this is the “thin end of the wedge” when it comes to effective enforcement of rules and regulations. When faced with individual requests which go against the rules and regulations, where should bodies corporate and HOAs draw the line?

Ultimately, the safest course is probably to keep on performing that delicate balancing act we mentioned above, plotting a careful course between individual and communal rights fairly, impartially and reasonably. Common sense isn’t as common as it should be.

Whether you’re an owner, body corporate or HOA, we’re here to help you plot that course!

23/04/2026

Beyond Your Will: Leaving a Legacy
“Legacy is not leaving something for people. It’s leaving something in people.” (Peter Strople, former Dell Computer Corporation director)

Leave a personal legacy, not just a financial one

We all know how important it is to our loved ones that we leave behind a valid will rooted in a comprehensive estate plan, but our legacy should go a lot further than just distributing assets.

Sharing with your heirs your values, your family history, and the wisdom your years have granted you can be one of the most important gifts you leave, often outlasting tangible bequests by generations. On a practical level, it will also help your heirs value, preserve and enjoy the wealth and the heritage that you leave them.

Start with a family mission statement

This sounds very corporate and complicated, but in fact it’s really simple and entirely personal. A family mission statement is foundational in legacy planning and will help everyone focus on the values and priorities important to them. As Stephen Covey (author of The 7 Habits of Highly Effective People) puts it “A family mission statement is a combined, unified expression from all family members of what your family is all about – what it is you really want to do and be – and the principles you choose to govern your family life.”

Of course, the mission statement must be collaborative, and everyone, even young children, can share in putting it together. You never know who will come up with a bright idea or two!

There’s a useful downloadable worksheet here if you need help getting started – personalise it to your family’s situation, and adapt it as you go along.

Share and discuss your plans

Openly sharing and discussing your estate planning and the provisions of your will with your nearest and dearest isn’t just an opportunity to prepare everyone for the financial implications of your death. It’s also a great way to involve everyone in your planning and to ask for their input.

Discuss the financial structures you have already put in place, or are planning for the future. Talk about your vision for the wealth you will leave behind and why you have made the bequests you have. Sharing all that, and relating it all to your family mission statement, will significantly reduce the risk of unhappiness and disappointment when the time comes for your last wishes to be implemented.

Craft your “legacy letter”

This isn’t your will (although it’s sometimes misleadingly referred to as an “ethical will”).

What’s the difference? Your formal will, which must comply with all legal formalities to be valid, sets out who is to inherit what from you. In contrast, your legacy letter is an informal and personal letter from you to your loved ones, sharing with them whatever you think will be of value to them in their lives. It needn’t be just one letter – many people choose to write individual letters to each member of their family.

There’s a lot to be said for sharing all these things informally with your family while you are still around, but don’t stop at verbal discussions. Writing them down and leaving them in letter form will give your heirs a permanent point of reference.

What should you include in your legacy letter? Really, anything that you think will help your loved ones live richer and more fulfilling lives. Perhaps share some of your family history, stories of your own life and the lessons it has taught you, your values, and your hopes and dreams for each of them. What challenges have you faced and how did you overcome them? What was really important to you at each life stage? What are your most cherished memories? What stories and advice from your parents and grandparents really helped you? What principles have inspired your financial successes?

The Confucian advice to “Study the past if you would define the future” rings as true today as it did two and a half thousand years ago.

A practical five-point plan brings it all together

Your estate plan underpins everything, so review and update it regularly.
Take legal and tax advice on forming a family trust. Depending on your circumstances and objectives, it could be the perfect way of guaranteeing that the financial part of your legacy is protected and managed wisely for generations to come.

As to the more personal side of your legacy, the trust’s name itself will preserve your family name no matter how many of your descendants may in due course acquire new surnames.
Most importantly, leave behind a valid and updated will (“Last Will and Testament”) that clearly reflects your wishes and complies with all legal formalities.
To accompany your will, put together a “Notes for my executor and loved ones” file with all the information and documents that your executors and heirs will need when the time comes.
Last but certainly not least, be sure to include your legacy letter. This ensures that you aren’t just leaving your family all your worldly wealth, but also a real legacy – your own personal message for the future, direct from you to them.

16/04/2026

Considering Using Sequestration to Recover Levies? Think Again
“The only man who sticks closer to you in adversity than a friend is a creditor.” (Evan Esar)

Body corporates face a familiar problem. Owners fall into arrears. Levies go unpaid. Legal costs mount. The temptation is to reach for the most forceful remedy available.

Sequestration may seem like that remedy. If an owner will not pay, why not have them declared insolvent?

A recent Gauteng High Court judgment offers a clear warning. A body corporate sought the sequestration of a unit owner for levy arrears exceeding R1.4 million. With such a substantial debt, the body corporate’s frustration was understandable. But the application failed.

The court held that the body corporate had not met the statutory requirements under the Insolvency Act. In particular, it had not shown that sequestration would be to the advantage of creditors. The court also noted that the body corporate had other ex*****on remedies available and emphasised that sequestration proceedings are not intended to function as a debt-collection mechanism.

What is sequestration?

Sequestration is a court-ordered insolvency process under the Insolvency Act. It applies where a debtor can no longer meet their financial obligations. The court places the debtor’s estate under the control of a trustee, who sells the debtor’s assets and distributes the proceeds among creditors.

The test for sequestration

To succeed, the applicant must establish three things:

The debtor has committed an act of insolvency, or is actually insolvent.
There is reason to believe sequestration will be to the advantage of creditors.
The applicant has a liquidated claim against the debtor.
The second requirement is where many applications come unstuck.

Where sequestration applications unravel

Sequestration is not designed to punish debtors or pressure them into payment. It’s a collective remedy, intended to ensure the orderly distribution of a debtor’s assets among all creditors.

The applicant must prove that there’s a good chance that creditors will receive a meaningful dividend. If the debtor has no realisable assets, or if the costs of sequestration would consume whatever value exists, the application will fail. The court will not grant sequestration simply because a debt is owed.

Sequestration is not leverage

In practice, some creditors use sequestration applications as a form of pressure. Their reasoning is simple: the threat of insolvency may prompt the debtor to settle. But our courts have made clear that this is not appropriate.

In this case, the court emphasised that insolvency proceedings are not a private debt-collection mechanism. They carry serious consequences: loss of control over assets, restrictions on legal capacity, and reputational harm. These consequences are justified only where the statutory purpose is served.

Where the true aim is to recover a debt rather than administer an insolvent estate, the court will refuse the application.

What body corporates should consider

Before pursuing sequestration, a body corporate should ask practical questions.

Does the owner have realisable assets? If the only asset is the unit itself, and it is bonded, there may be little left after the bondholder is paid.
Would the costs of sequestration exceed the likely recovery?
Has the body corporate exhausted more conventional remedies? A judgment, followed by ex*****on against property, may be more direct and effective.
If the answers suggest that sequestration will not benefit creditors, the application is unlikely to succeed.

Other options

Body corporates have several remedies for levy recovery: obtaining a judgment and executing against the property, applying for an attachment of emoluments, or seeking a sale in ex*****on.

Each has its own requirements, but they are all designed for debt recovery (unlike sequestration).

Where this leaves body corporates

Sequestration is a remedy of last resort, not a debt-collection tool. The Insolvency Act sets strict requirements, and courts will hold applicants to them. If you are unsure which remedy is appropriate, we can help.