Beukes & Ferguson Inc.

23/10/2026

Have you ever wondered what happens if a buyer or seller breaches an Offer to Purchase? In South Africa, a penalty clause can have serious financial consequences — but is it always enforceable?
𝐖𝐡𝐚𝐭 𝐃𝐨𝐞𝐬 𝐭𝐡𝐞 𝐋𝐚𝐰 𝐒𝐚𝐲?
The Conventional Penalties Act 15 of 1962 governs penalty clauses in contracts, including property transactions. These clauses may require a party who breaches an agreement to pay a specified amount or forfeit certain benefits.
𝐂𝐨𝐦𝐦𝐨𝐧 𝐄𝐱𝐚𝐦𝐩𝐥𝐞𝐬 𝐢𝐧 𝐏𝐫𝐨𝐩𝐞𝐫𝐭𝐲 𝐒𝐚𝐥𝐞𝐬
A penalty clause may apply where a purchaser fails to fulfil contractual obligations, such as paying the purchase price or providing guarantees by the agreed deadline. An agreement may also provide for penalties for late occupation or other specified breaches.
𝐂𝐚𝐧 𝐭𝐡𝐞 𝐏𝐞𝐧𝐚𝐥𝐭𝐲 𝐁𝐞 𝐂𝐡𝐚𝐥𝐥𝐞𝐧𝐠𝐞𝐝?
Yes! Under section 3 of the Act, a court may reduce a penalty if it is out of proportion to the prejudice suffered by the innocent party. The court considers the circumstances, including the financial impact and other legitimate interests affected by the breach.
However, a penalty is not automatically invalid simply because it seems high. Whether it can be reduced depends on the facts and applicable law.
Can You Claim Both a Penalty and Damages?
Generally, section 2 prevents a party from recovering both a penalty and damages for the same breach, unless the agreement expressly provides otherwise. The wording of the contract is therefore crucial.
𝐓𝐡𝐞 𝐁𝐨𝐭𝐭𝐨𝐦 𝐋𝐢𝐧𝐞
Before signing an Offer to Purchase, carefully review every penalty clause. A seemingly minor deadline or obligation could result in significant financial liability.
When in doubt, consult your conveyancer or attorney before signing.

02/10/2026

You’ve found your dream home, signed the Offer to Purchase – and then you start having second thoughts. Can you simply change your mind?

In South Africa, there is 𝐧𝐨 𝐠𝐞𝐧𝐞𝐫𝐚𝐥 𝐜𝐨𝐨𝐥𝐢𝐧𝐠-𝐨𝐟𝐟 𝐩𝐞𝐫𝐢𝐨𝐝 for every property transaction. However, there are circumstances where legislation may give a purchaser a right to cancel.

Section 29A of the 𝐀𝐥𝐢𝐞𝐧𝐚𝐭𝐢𝐨𝐧 𝐨𝐟 𝐋𝐚𝐧𝐝 𝐀𝐜𝐭 𝟔𝟖 𝐨𝐟 𝟏𝟗𝟖𝟏 provides a limited cooling-off right for certain qualifying purchasers. Where it applies, a purchaser may revoke an offer or terminate a deed of alienation within 𝐟𝐢𝐯𝐞 𝐝𝐚𝐲𝐬 after signing. Saturdays, Sundays and public holidays are excluded when calculating the five-day period. The cancellation must be made by written notice delivered to the seller or their agent.

The right generally applies where the purchase price is 𝐑𝟐𝟓𝟎,𝟎𝟎𝟎 𝐨𝐫 𝐥𝐞𝐬𝐬, the purchaser is a natural person (e.g. not applicable to Trusts and Companies) and the transaction meets the other requirements of the Act. Certain transactions, including publicly advertised auction sales, are excluded.

💡 𝐁𝐮𝐭 𝐰𝐡𝐚𝐭 𝐚𝐛𝐨𝐮𝐭 𝐭𝐡𝐞 𝐂𝐨𝐧𝐬𝐮𝐦𝐞𝐫 𝐏𝐫𝐨𝐭𝐞𝐜𝐭𝐢𝐨𝐧 𝐀𝐜𝐭?

There may also be recourse under the 𝐂𝐨𝐧𝐬𝐮𝐦𝐞𝐫 𝐏𝐫𝐨𝐭𝐞𝐜𝐭𝐢𝐨𝐧 𝐀𝐜𝐭 𝟔𝟖 𝐨𝐟 𝟐𝟎𝟎𝟖 (𝐂𝐏𝐀) in certain circumstances. Section 16 provides a 𝐟𝐢𝐯𝐞-𝐛𝐮𝐬𝐢𝐧𝐞𝐬𝐬-𝐝𝐚𝐲 𝐜𝐨𝐨𝐥𝐢𝐧𝐠-𝐨𝐟𝐟 𝐫𝐢𝐠𝐡𝐭 where a transaction resulted from 𝐝𝐢𝐫𝐞𝐜𝐭 𝐦𝐚𝐫𝐤𝐞𝐭𝐢𝐧𝐠.

This does not mean that every purchaser can rely on the CPA simply because they have changed their mind. The CPA generally applies where the seller is a 𝐬𝐮𝐩𝐩𝐥𝐢𝐞𝐫 𝐚𝐜𝐭𝐢𝐧𝐠 𝐢𝐧 𝐭𝐡𝐞 𝐨𝐫𝐝𝐢𝐧𝐚𝐫𝐲 𝐜𝐨𝐮𝐫𝐬𝐞 𝐨𝐟 𝐛𝐮𝐬𝐢𝐧𝐞𝐬𝐬. It may therefore be relevant, for example, where property is being sold by a developer or other commercial property seller, rather than in an ordinary once-off private sale.

In practice, this will be rare with property transactions as, even if contacted directly, you will be viewing the property, consider options, possibly negotiating price etc. all of which may negate the protection under the CPA.

If neither statutory cooling-off right applies, signing an Offer to Purchase can create a legally binding agreement, and simply changing your mind may amount to a breach.

𝐁𝐞𝐟𝐨𝐫𝐞 𝐬𝐢𝐠𝐧𝐢𝐧𝐠 𝐚𝐧 𝐎𝐟𝐟𝐞𝐫 𝐭𝐨 𝐏𝐮𝐫𝐜𝐡𝐚𝐬𝐞, 𝐦𝐚𝐤𝐞 𝐬𝐮𝐫𝐞 𝐲𝐨𝐮 𝐮𝐧𝐝𝐞𝐫𝐬𝐭𝐚𝐧𝐝 𝐭𝐡𝐞 𝐚𝐠𝐫𝐞𝐞𝐦𝐞𝐧𝐭, 𝐭𝐡𝐞 𝐜𝐨𝐨𝐥𝐢𝐧𝐠-𝐨𝐟𝐟 𝐫𝐢𝐠𝐡𝐭𝐬 𝐭𝐡𝐚𝐭 𝐦𝐚𝐲 𝐚𝐩𝐩𝐥𝐲, 𝐚𝐧𝐝 𝐭𝐡𝐞 𝐜𝐨𝐧𝐬𝐞𝐪𝐮𝐞𝐧𝐜𝐞𝐬 𝐨𝐟 𝐜𝐚𝐧𝐜𝐞𝐥𝐥𝐢𝐧𝐠. 𝐈𝐟 𝐲𝐨𝐮 𝐚𝐫𝐞 𝐮𝐧𝐬𝐮𝐫𝐞, 𝐬𝐩𝐞𝐚𝐤 𝐭𝐨 𝐲𝐨𝐮𝐫 𝐜𝐨𝐧𝐯𝐞𝐲𝐚𝐧𝐜𝐞𝐫 𝐛𝐞𝐟𝐨𝐫𝐞 𝐬𝐢𝐠𝐧𝐢𝐧𝐠.

25/09/2026

Registration is an exciting milestone in a property transaction, but sellers often ask: 𝐖𝐡𝐞𝐧 𝐰𝐢𝐥𝐥 𝐈 𝐚𝐜𝐭𝐮𝐚𝐥𝐥𝐲 𝐫𝐞𝐜𝐞𝐢𝐯𝐞 𝐦𝐲 𝐦𝐨𝐧𝐞𝐲?

Once the transfer is registered in the Deeds Office, the conveyancer receives confirmation of registration. The transaction funds can then be distributed in accordance with the guarantees and payment arrangements made for the sale. Guarantees are usually paid out overnight and will be available to the conveyancer for disbursement the first business day after registration.

If there is an existing 𝐡𝐨𝐦𝐞 𝐥𝐨𝐚𝐧, the outstanding bond must be settled. The bank provides the conveyancer with 𝐛𝐨𝐧𝐝 𝐜𝐚𝐧𝐜𝐞𝐥𝐥𝐚𝐭𝐢𝐨𝐧 𝐟𝐢𝐠𝐮𝐫𝐞𝐬, which include the amount required to settle the loan, together with any applicable interest, penalties or fees. If the amount paid to the bank exceeds the final amount required on cancellation, the 𝐬𝐮𝐫𝐩𝐥𝐮𝐬 𝐢𝐬 𝐫𝐞𝐟𝐮𝐧𝐝𝐞𝐝 to the seller. The timing of this refund depends on the bank and will be made directly to the seller.

The seller’s net proceeds will be paid once the guarantee payment is received. The conveyancer must account for the purchase price, bond settlement, commission, costs and any other amounts payable before releasing the balance.

There may also be a 𝐦𝐮𝐧𝐢𝐜𝐢𝐩𝐚𝐥 𝐫𝐚𝐭𝐞𝐬 𝐫𝐞𝐟𝐮𝐧𝐝. Rates and taxes are generally paid in advance to obtain the rates clearance certificate required for transfer. If the property registers before the period covered by those payments has expired, the seller may be entitled to a 𝐩𝐫𝐨-𝐫𝐚𝐭𝐚 𝐫𝐞𝐟𝐮𝐧𝐝 for the period after registration. The council will calculate the amount due and arrange payment once the municipal account has been reconciled. This usually takes a few months after registration.

Any refund due to the seller as a result of upfront payment for levies depends on the Managing Agent of the Scheme. It will sometimes be accounted for in the final account done by the conveyancer and some Managing agents prefer to do the calculation themselves, and will then refund the Seller.

𝐈𝐧 𝐬𝐡𝐨𝐫𝐭, 𝐫𝐞𝐠𝐢𝐬𝐭𝐫𝐚𝐭𝐢𝐨𝐧 𝐭𝐫𝐢𝐠𝐠𝐞𝐫𝐬 𝐭𝐡𝐞 𝐟𝐢𝐧𝐚𝐥 𝐟𝐢𝐧𝐚𝐧𝐜𝐢𝐚𝐥 𝐫𝐞𝐜𝐨𝐧𝐜𝐢𝐥𝐢𝐚𝐭𝐢𝐨𝐧. While sellers can usually expect payment soon after registration, refunds and surplus amounts may take additional time depending on the bank, municipality and conveyancer’s reconciliation process.

23/09/2026

11/09/2026

Buying a sectional title property? You may notice that the unit comes with an 𝐞𝐱𝐜𝐥𝐮𝐬𝐢𝐯𝐞 𝐮𝐬𝐞 𝐚𝐫𝐞𝐚 (𝐄𝐔𝐀), such as a private garden, parking bay, patio or storeroom.

But what exactly does “exclusive use” mean?
An exclusive use area is generally 𝐩𝐚𝐫𝐭 𝐨𝐟 𝐭𝐡𝐞 𝐜𝐨𝐦𝐦𝐨𝐧 𝐩𝐫𝐨𝐩𝐞𝐫𝐭𝐲, but the owner of a particular section has the right to use that area exclusively. This does not necessarily mean that the area forms part of the section itself and results in ownership.

Before purchasing, buyers should establish 𝐡𝐨𝐰 𝐭𝐡𝐞 𝐞𝐱𝐜𝐥𝐮𝐬𝐢𝐯𝐞 𝐮𝐬𝐞 𝐫𝐢𝐠𝐡𝐭 𝐢𝐬 𝐜𝐫𝐞𝐚𝐭𝐞𝐝 𝐚𝐧𝐝 𝐫𝐞𝐜𝐨𝐫𝐝𝐞𝐝. Some rights are registered in terms of the Sectional Titles Act in which case the exclusive area will be held by a separate notarial deed, while others may be created through the scheme’s rules with no separate deed. The applicable documents should clearly identify the area and the section to which it is allocated.

It is also important to check the 𝐛𝐨𝐝𝐲 𝐜𝐨𝐫𝐩𝐨𝐫𝐚𝐭𝐞’𝐬 𝐫𝐮𝐥𝐞𝐬. These rules can regulate how an exclusive use area may be used and maintained. Owners may, for example, be restricted from making certain alterations or using the area for a purpose other than its intended use.

Buyers should also determine 𝐰𝐡𝐨 𝐢𝐬 𝐫𝐞𝐬𝐩𝐨𝐧𝐬𝐢𝐛𝐥𝐞 𝐟𝐨𝐫 𝐦𝐚𝐢𝐧𝐭𝐞𝐧𝐚𝐧𝐜𝐞 and associated costs, as these obligations can have financial implications.

Most importantly, don't rely solely on an estate agent's description or the physical appearance of the property. Ask the conveyancer to verify the sectional plan, title documentation and applicable body corporate rules.

𝐀 𝐥𝐢𝐭𝐭𝐥𝐞 𝐝𝐮𝐞 𝐝𝐢𝐥𝐢𝐠𝐞𝐧𝐜𝐞 𝐛𝐞𝐟𝐨𝐫𝐞 𝐬𝐢𝐠𝐧𝐢𝐧𝐠 𝐜𝐚𝐧 𝐩𝐫𝐞𝐯𝐞𝐧𝐭 𝐞𝐱𝐩𝐞𝐧𝐬𝐢𝐯𝐞 𝐬𝐮𝐫𝐩𝐫𝐢𝐬𝐞𝐬 𝐚𝐟𝐭𝐞𝐫 𝐭𝐫𝐚𝐧𝐬𝐟𝐞𝐫.

04/09/2026

When buying or selling property, you may hear your estate agent and conveyancer mention rates clearance figures and levy clearance figures. But what exactly are they, and why are they so important?
Rates clearance figures are amounts calculated by the relevant municipality to determine what must be paid before a property can be transferred. They generally include outstanding municipal rates and service charges, together with amounts payable in advance, depending on the municipality’s requirements.
This process is linked to section 118 of the Municipal Systems Act, which generally prevents the Deeds Registry from registering a transfer unless the prescribed municipal clearance certificate has been produced.
Levy clearance figures apply primarily to properties in sectional title schemes (but also Homeowners Associations). They relate to amounts owing to the body corporate, such as levies and other charges payable in terms of the scheme’s management arrangements. The Sectional Titles Schemes Management Act provides the legislative framework for the management of sectional title schemes and their bodies corporate.
Why are these figures required?
The purpose is to ensure that amounts connected to the property are dealt with before transfer takes place. They help protect municipalities, Homeowner’s Associations and sectional title schemes from unpaid amounts and enable the conveyancer to obtain the necessary clearance documentation for registration. It also provides further protection to the purchaser ensuring that all outstanding amounts due by the seller to municipality, Homeowner’s Association and body corporate have been settled and are up to date as at date of registration.
Clearance figures are not simply “extra costs” of selling a property. They form an important part of the legal transfer process and can affect how quickly the transaction proceeds as amounts (including arrears) are payable prior to registration of transfer.
As the payments are made in advance, does this mean that the seller sponsors the purchaser? No, it does not. With municipalities, the purchaser is billed from date of registration and any overpayment made by the seller is refunded to them by the municipality. HOA’s and Body Corporates each work differently, but the conveyancer or the managing agent calculate the pro-rated amounts and allocate same on the final accounts on registration.

28/08/2026

When selling a property with a registered bond, one of the important steps in the transfer process is obtaining bond cancellation figures from the bank. These figures confirm the amount required to settle the outstanding home loan and enable the bond to be cancelled at the Deeds Office.
The cancellation figure generally includes the outstanding capital balance, together with interest calculated up to a specified future date and, where applicable, bank fees and early settlement or cancellation charges. Because interest continues to accrue, the amount required to settle the bond may change depending on the actual date of payment.
The conveyancer will request the cancellation figures from the bank and arrange for the necessary guarantee to be issued. A guarantee is an undertaking, usually provided by the purchaser's bank or the transferring attorneys, confirming that the required amount will be paid to the seller's bank on registration.
It is important to remember that the cancellation figure may be higher than the amount ultimately required to settle the bond. This can happen where the guarantee is issued for an amount covering interest up to a later anticipated registration date.
Once the property transfer registers, the guaranteed amount is paid to the bank. If the actual settlement amount is less than the amount paid, the surplus is refunded by the bank to the seller, subject to its procedures.
Understanding these figures helps sellers avoid confusion and ensures that the proceeds from the sale are correctly accounted for after the bond has been settled and cancelled.

21/08/2026

Buying or selling a sectional title property? One issue that can cause delays and confusion is arrear levies and special levies. So, who is responsible for paying them when the property is transferred?
In South Africa, the owner of the unit is generally responsible for levies owed to the body corporate. When a property is sold, the conveyancer will obtain the necessary levy information and clearance documentation from the body corporate before transfer can take place.
Arrear levies may need to be settled before the transfer process can be completed. This can cause delays if the seller has not made provision for the outstanding amount.
Special levies require particular attention. A body corporate may impose a special levy for an expense that is not adequately covered by the ordinary levy, such as major repairs, maintenance or other significant expenditure. The timing of the special levy is important. Depending on when it was raised, when it became payable and what the sale agreement provides, responsibility for the amount may need to be carefully determined.
The sale agreement should clearly state who is responsible for outstanding levies, special levies and other transfer-related costs. Parties should not assume that the buyer or seller is automatically responsible simply because the property is being transferred.
It is therefore important for sellers to establish their levy account status well before transfer, including whether any special levies have been raised or are anticipated. Buyers should also ensure that the conveyancer has properly addressed the levy clearance requirements and any special levy obligations.
Always obtain professional advice on your specific circumstances, as the legal position can depend on the nature and timing of the amounts owing.

07/08/2026

Technology has made it easier than ever to do business from anywhere, but when it comes to buying or selling property, many people wonder whether they can simply sign everything electronically from home.
The answer is: it depends on the document.
Under South African law, certain property-related documents can be signed remotely or electronically. However, many of the key documents required to transfer ownership of immovable property still require original ("wet ink") signatures. This is because the Deeds Registries system has specific legal requirements that must be met before a property transfer can be registered.
If you are unable to meet your conveyancer in person, there are still practical solutions. Your conveyancer can arrange for documents to be couriered to you, or, if you are overseas, they may prepare a Power of Attorney or arrange for documents to be signed before a South African embassy, consulate, or a notary public, depending on your circumstances and the country you find yourself in.
Every property transaction is different, and the signing requirements may vary depending on whether you are the buyer, seller, or financing through a bank. Trying to rely solely on electronic signatures without legal advice could result in delays, rejected documents or unenforceable agreements.
The good news is that experienced South African conveyancers regularly assist clients who are in another province or even another country. With the right guidance, your property transfer can proceed smoothly while complying with all legal requirements.
Before signing any property documents electronically, speak to your conveyancer first. A quick conversation can help ensure your transaction remains legally valid, avoids unnecessary delays, and reaches registration without complications.