“All that glisters is not gold” (William Shakespeare in Merchant of Venice)

Buying or selling a home could be one of the most important financial decisions you’ll ever make. It’s an exciting time – but don’t lose sight of the need to tread with care. 

A key player in the process is likely to be an estate agent, to whom you will be entrusting one of your most significant assets. It goes without saying that you need to choose someone both competent and trustworthy. 

Fool’s gold?

Be particularly careful here, because not everyone who claims to be an estate agent is genuine – and you will be in for a world of pain if you inadvertently trust your property transaction, and your money, to a charlatan. A fake agent may be actively dishonest or merely incompetent, but (in the way of all con artists) is probably first and foremost a persuasive and convincing liar. Lots of “glister”, but absolutely no gold!

Quite apart from the competency angle, just Google a phrase like “fake estate agent sentenced” to get an idea of how much full-on “bogus agent” fraud there is. 

Let’s have a look at one recent case.

The Hawks swoop, and a fake agent gets 23 years 

A fraudster operating in Bloemfontein and pretending to be an estate agent conned his victim into signing a sale agreement and paying him R100,000 for a house she’d set her heart on. Too late, she discovered that the “agent” was neither registered as such nor entitled to sell the house.

The matter was handed over to the Hawks, and the fake agent is currently serving an effective 23 years’ direct imprisonment. Justice served, and let’s hope the victim, to whom R100,000 is clearly a substantial sum, is also able to recover her hard-earned money from the fraudster. 

A timely warning

A timely warning from the PPRA (Property Practitioners Regulatory Authority) in February confirms that, quite apart from the risk of fraud, it’s crucial for your protection to ensure that the agent you decide to work with is properly registered with the PPRA and holds a valid Fidelity Fund Certificate (FFC). 

Why is PPRA registration important?

The PPRA is the official body that oversees estate agents and other property practitioners. Registration with the PPRA ensures that:

• The agent operates legally and is subject to the PPRA’s Code of Conduct.
  
  
• The agent has met the necessary training and compliance standards. 
  
  
• You can claim against the Property Practitioners Fidelity Fund for any theft of trust money by an agent with a valid FFC.

Four checks before you engage an agent

Before giving a mandate to an estate agent or agency, it’s important to check that they are legit. You can do this by:

1. Confirming their registration and FFC: Ask for proof that the agent and the firm are registered with the PPRA. Request copies of their FFCs and verify their validity for the current year by phoning the PPRA on 087 285 3222.
   
   
2. Verifying supervision for candidates: If dealing with a candidate property practitioner, confirm that they are working under the supervision of a fully registered agent.
   
   
3. Checking their trust account: If you pay money to an agent (a deposit perhaps), make sure the firm is registered with the PPRA and has an active trust account held at a registered South African bank. The funds should be deposited into this trust account and not into the agent’s personal or business account. 
   
   
4. Asking us! We can help you with all these checks – and if you aren’t sure who to use, we’ll point you in the right direction.

“The minute you read something that you can’t understand, you can almost be sure that it was drawn up by a lawyer.” (Will Rogers, cowboy and actor)

We’ve all seen (and probably ignored) disclaimer notices as we enter shopping centres, restaurants, businesses, hotels, sporting venues and the like. Usually, they read something along the lines of: “All persons enter at their own risk” or “the owner shall not under any circumstances be liable ...blah blah blah…”

A legal duty to ensure safety

The restaurant owner in the McDonald’s case we discuss below had accepted that it had “a legal duty to exercise the standard of care expected of a reasonable restaurant operator in the circumstances by ensuring that the premises of the restaurant were safe for patrons to use.” 

And therein lies your risk, because that general principle applies to all owners and occupiers of premises which are open to the public. The question is, how well do disclaimer notices really protect businesses from legal claims? 

The McDonald’s “slip and trip” case

A customer sued the owner/operator of a McDonald’s in Cape Town. On her way through the restaurant to find a table for a business meeting, she slipped and fell on a recently mopped floor. Her fall was a serious one – in considerable pain, she was carried from the restaurant on a stretcher and underwent operations to her ankle and knee. 

She argued that the owners had acted negligently by failing to:

• Keep the floor dry and safe
• Place warning signs showing the wet floor
• Cordon off the wet area to prevent accidents

The owner defended itself both by denying any negligence, and by relying on the disclaimer notice posted at the entrance (bolstered by a “floors may be slippery when wet” sign). It also suggested that the customer had caused, or at least contributed to, her own accident by not keeping a proper lookout, and by walking too fast. 

As always, the onus was on the customer to prove her case, i.e. that the restaurant had been negligent, and that its negligence had caused her fall. 

In the end, she succeeded in doing both, with the Court accepting that the restaurant hadn’t put up “wet floor” signs to cordon off the wet, slippery area of the floor. This was the nail in the coffin – it hadn’t followed its own cleaning protocols. 

The “lady with the mop”

How had the Court reached that conclusion? By applying the “thing speaks for itself” (res ipsa loquitor) doctrine, which says that if the occurrence itself (in this case, the fall) is enough to infer negligence, it’s up to the person being sued to provide a contrary explanation. 

The restaurant was unable to give any explanation for the fall which would counter the inference of negligence. The Court noted in this regard that the restaurant hadn’t called as a witness the “lady with the mop”. She had been mopping the floor at the time and was, said the Court, “the only person that could have shed light on whether the cleaning protocols were strictly adhered to.”

This left the Court to hold that the restaurant hadn’t taken reasonable steps to prevent the incident, and that its negligence had caused the fall. Finally, there was no contributory negligence on the part of the customer, so the owner is 100% liable for whatever damages she suffered. 

Unless, of course, its disclaimer notice shields it from liability…

“A disclaimer is not an automatic legal shield” 

The disclaimer notice read: “All persons entering McDonald’s and using its facilities, including drive-through and parking areas, do so entirely at their own risk. Neither McDonald’s nor it’s (sic) suppliers, employees and or representatives shall be responsible and or liable in respect of any theft and or loss and or damages sustained to property and or the persons of any customer and or employee of McDonald’s whilst on the premises for whatsoever reason. Right of admission reserved.”

The customer did not recall noticing this disclaimer at the entrance, but in any event, as the Court put it (emphasis supplied): “it must be emphasised that a disclaimer is not an automatic legal shield, and must … be evaluated in the context of the overall safety management of the premises.” 

Despite the disclaimer, the restaurant would still be liable if it hadn’t taken reasonable steps to guard against the customer slipping. It was unable to put forward an explanation to counter the inference of negligence, and its failure to follow its own safety protocols sealed the deal.

So, disclaimer notices aren’t foolproof. How can you strengthen yours?

No disclaimer will ever be a watertight defence against liability, but you can strengthen yours significantly by understanding what sort of factors courts are likely to take into account when assessing such claims. We share below some tips on how to address each of these risk factors:

• Disclaimers must be conspicuous, clear and visible: A disclaimer hidden in small print or obscured by a door is unlikely to hold up in court, so maximise visibility by placing signs at entrances where they are easily seen by everyone before they enter the premises. Use legible fonts and contrasting colours.
  
  
• Plain, simple language is essential: If a disclaimer is too complex or ambiguous, or uses too much legal jargon, courts may interpret it against you or accept that your customers may not have understood it.
  
  
• The Consumer Protection Act (CPA): The CPA does not allow disclaimers that exclude “gross” (extreme or total) negligence, and it requires that such notices be conspicuously drawn to the attention of consumers, who must also be treated fairly, reasonably, and justly. We can help you draft signs that comply.
  
  
• Disclaimer or no disclaimer, you must still take reasonable safety measures and give warning of any risk areas: Warning signs and proactive safety practices and protocols will reduce your risk of liability substantially.

If you need guidance on drafting effective disclaimer notices tailored to your business, or help with your risk management practices, we’re always here to help. 

“An ounce of prevention is worth a pound of cure.” (Benjamin Franklin’s warning to fire-threatened Philadelphians in 1736)

Cases of Business Email Compromise (BEC) fraud continue to surge, and recent High Court decisions have confirmed that it’s up to you to verify that you are paying into the correct bank account. 

 
How does BEC work and who is at risk?

BEC fraud involves cybercriminals impersonating your trusted contacts (e.g. suppliers and professional advisors) in fraudulent emails that look genuine. The idea is to trick you into making payment into the scammer’s account. 

Everyone’s at risk, but BEC is particularly rife in transactions where large amounts of money are in play. Favourite targets are commercial operations and their customers, as well as all role-players in property sales – buyers, sellers, conveyancers and estate agents.

How do these scams work? For a snapshot of a classic BEC sting, have a look at this recent High Court case…

“But I paid you the R890k!”

Two Cape Town companies, who had been trading happily and successfully with each other for seven years, fell out over who should bear a loss of R886,726.25 after scammers stole the customer’s payment for a consignment of valves. Here’s how it went down:

• The customer had always made payments to the supplier’s Standard Bank account in the past. So far, so good.
  
  
• But then, enter stage left, our villain: Joe Scammer. Joe intercepts the supplier’s email correspondence and, pretending to be the supplier’s managing director, asks the customer to make all payments to an Absa bank account from now on.
  
  
• The customer asks for a bank confirmation letter, which Joe (still in his guise as MD) gladly supplies.
  
  
• Reassured, the customer makes payment to the Absa account. The fraud is only discovered when, three days later, the supplier emails asking for payment. 
  
  
• Joe is of course now long gone with his loot, leaving customer and supplier to fight it out over who must bear the loss.  

Blaming the supplier won’t work – you must “seek out” your creditor

The customer, sued by the supplier for the outstanding amount, contended that the blame lay with the supplier, whose own negligence in failing to secure its IT systems against email interception caused the fraud. 

That’s a defence often raised by BEC victims, and indeed our courts have stressed in the past the need for suppliers and professionals to ensure that their own computer systems are properly secured at all times. But it cut no ice in this case. 

Rather, said the Court, (emphasis supplied), “it is the debtor’s obligation to ‘seek out his creditor’ and … until payment is duly effected, the debtor carries the risk that the payment may be misappropriated or mislaid.”

The real cause of the loss in this case, held the Court, was not any hacking of the supplier’s emails (if there was in fact a hack – the supplier denied it), but the customer’s failure to take the steps that a “prudent debtor” would have taken to ensure that it was paying into the correct account. 

Our unfortunate customer must now pay the supplier, plus a raft of legal costs to boot. 

Pick up the phone!

Our courts will have no sympathy for you if you fall victim by not protecting yourself. A factor that counted against our customer here was (emphasis supplied): “the fact, known to any persons in business and making use of computer-based methods of communication and payment, that cyber crime is rampant and that care must be taken at all times to limit its impact.”

The good news is that a few simple preventative measures can provide everyone involved with a strong layer of protection:

1. Put in place strong policies and procedures to ensure that your IT systems and emails are secured against breach and interception. 
   
   
2. You, and all of your staff, must remain constantly vigilant against the techniques which the scammers use. They are particularly adept at exploiting trust-based and long-standing relationships, for instance with suppliers you have dealt with for years, and professionals like attorneys, accountants and financial advisors etc. 
   
   
3. Most importantly, perhaps, given the current attitude of our courts, is to always verify payment details via contact with your creditor through another communication system. As our courts have pointed out, “a simple telephone call” can be enough to avoid falling victim to fraud.

If you need help reviewing your fraud prevention and payment verification procedures, please feel free to contact us. 

From 1 April 2025, the earnings threshold under the Basic Conditions of Employment Act (BCEA) will increase, impacting not only the BCEA but also employee protections under the Labour Relations Act (LRA) and Employment Equity Act (EEA). 

Broadly speaking, employees earning less than the threshold amount are entitled to stronger labour protections.

The new threshold 

The threshold rises by only 2.9% this year, increasing from R254,371.67 per year (R21,197.64 per month) to R261,748.45 per year (R21,812.37 per month).

What counts as "Earnings"?

“Earnings” (for this purpose only) means “the regular annual remuneration before deductions, i.e. income tax, pension, medical and similar payments but excluding similar payments (contributions) made by the employer in respect of the employee: Provided that subsistence and transport allowances received, achievement awards and payments for overtime worked shall not be regarded as remuneration”.

The impact on employee protections 

• BCEA: Employees earning above the new threshold aren’t entitled to statutory protections for working hours, overtime pay, Sunday, public holiday and night work, daily and weekly rest periods and meal intervals. 
  
  
• LRA: Those earning below the threshold gain stronger protections:
   
  • If working for a client via a labour broker for more than three months, they are deemed employees of the client – unless they really are performing a temporary service. 
    
    
  • Fixed-term contracts exceeding three months are presumed indefinite unless the employer has a justifiable reason for fixing the term of the contract. 
    
    
• EEA: Employees earning above the threshold can only take unfair discrimination disputes (except sexual harassment cases) to the Commission for Conciliation, Mediation and Arbitration (CCMA) if both parties agree. Otherwise, they must approach the Labour Court.

Exceptions to the BCEA protections

Some employees have limited BCEA protection regardless of their earnings, including:

• Senior managerial employees – defined as “an employee who has the authority to hire, discipline and dismiss employees and to represent the employer internally and externally”.
  
  
• Sales staff who travel to customers and set their own work hours.
  
  
• Employees working less than 24 hours a month.

Please ask us for specific advice if you need it. This article is merely an overview of a complex topic with many pitfalls for the unwary.

“Res Ipsa Loquitur”

You may come across the phrase res ipsa loquitur (Latin for “the thing speaks for itself”) in damages claim cases when a court has no direct evidence before it as to the exact cause of an accident or injury. The court might then infer negligence from the nature of the accident/injury itself. The person accused of negligence would have an opportunity to put forward an alternative explanation that excludes negligence.

For example, if a wheel comes off a moving vehicle and causes an accident, the court might reason that wheels don’t ordinarily detach from properly maintained vehicles without negligence and leave it to the vehicle owner to counter that inference.