Property, Sales and Leases
in South Africa

Section 2(1) of the Alienation of Land Act 68 of 1981 is the single most important provision in South African property law: no alienation of land after the commencement of the Act is of any force or effect unless it is contained in a deed of alienation signed by the parties or by their agents acting on their written authority. There is no saving for oral agreements, no doctrine of part performance, and no estoppel-based workaround. A handshake deal to sell a farm is legally a nullity, even if the buyer has paid the full purchase price and moved onto the property.

The deed of alienation — in residential practice, the Offer to Purchase — must identify the parties, describe the property with sufficient certainty (erf number, township, registration division), state the purchase price, and set out any material terms such as occupation date, fixtures included, and suspensive conditions relating to bond approval or the sale of the buyer's existing home. Suspensive conditions must have a defined period and a clear trigger for fulfilment or lapse, failing which the court will supply a reasonable period.

An Offer to Purchase that fails section 2 can be rescinded by either party. The legislative intent is to protect both buyer and seller from ill-considered commitments over the most valuable asset most people will ever own. Signatures must be original on the hard copy, although electronic signatures under ECTA section 13 are recognised for most commercial contracts. Section 4 of ECTA, however, excludes agreements for the alienation of immovable property from the electronic-signature regime — so pen-and-paper or a qualified advanced electronic signature remains the safe route for conveyancing.

The Rental Housing Act 50 of 1999 regulates every lease of a dwelling in South Africa. Section 5 requires that the agreement be reduced to writing if the tenant so requests, and section 5(6) imposes a list of mandatory terms — names of the parties, address of the dwelling, amount of rent and escalation, deposit amount, the obligations of the landlord and tenant, and any house rules. Section 4(5) requires a joint inspection before occupation to record the state of the dwelling, and a second joint inspection within three days of expiry to identify any damage attributable to the tenant and justify deductions from the deposit.

The deposit regime is strict. Section 5(3)(c) requires the landlord to invest the deposit in an interest-bearing account with a registered financial institution, and to pay the interest to the tenant on expiry of the lease. Section 4(5)(c) requires the balance to be repaid, less any lawful deductions supported by the final inspection, within seven days of restoration of the dwelling to the landlord. Holding over deposits without a written justification is a common Rental Housing Tribunal complaint and almost always ends in an order against the landlord.

Where the tenant is a natural person, section 14 of the Consumer Protection Act overlays a 20-business-day cancellation right, and landlords must give 40 to 80 business days' notice of expiry under section 14(2)(c). A fixed-term residential lease signed with a consumer that purports to auto-renew without this notice is unenforceable for the renewal period. The Property Practitioners Act 22 of 2019 additionally requires that agents letting residential property hold a valid fidelity fund certificate.

Huur gaat voor koop — literally "hire goes before sale" — is a common-law doctrine of Roman-Dutch origin that binds a purchaser of leased property to the existing lease for its remaining term. It is one of the most misunderstood rules in South African property law, and it protects tenants more robustly than any statute.

The leading authority is Genna-Wae Properties (Pty) Ltd v Medio-Tronics (Natal) (Pty) Ltd 1995 (2) SA 926 (A), where the Appellate Division confirmed that on sale of the leased premises, the purchaser steps into the shoes of the seller as landlord for the full remaining term of the lease. The tenant's consent is not required. The new owner takes the property subject to the lease, including any renewal options, rent escalations, and house rules that were binding on the previous owner.

There are two important qualifications. First, the doctrine protects only a lease that was properly constituted before the sale — an oral lease for residential premises is still binding under the Rental Housing Act, but a lease over immovable property for more than ten years is unenforceable against successors in title unless it has been registered against the title deed under the Formalities in Respect of Leases of Land Act 18 of 1969. Second, the lease must have commenced occupation, or at least been concluded, before transfer to the new owner in the Deeds Office. A seller who signs a lease with one hand and a deed of sale with the other — with the lease dated after the sale but before transfer — creates an impossible triangle that the courts will resolve against the bad-faith party.

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 regulates every eviction of an unlawful occupier from land in South Africa. Section 4 applies to evictions by owners or persons in charge. The court may only grant an eviction order after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons, and households headed by women. Written notice of the proceedings must be served on the occupier and on the municipality at least 14 days before the hearing, setting out the grounds on which eviction is sought.

The Constitutional Court decision in Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) established the framework. Sachs J held that PIE requires a contextual and holistic inquiry — mechanical application of the Act is not permitted. The court must consider whether alternative accommodation is available, the period of occupation, the conduct of the occupiers, and the interests of the landowner. Eviction will only be granted if it is just and equitable in all the circumstances.

Section 5 of PIE deals with urgent evictions where there is a real and imminent danger of substantial injury or damage. The ordinary 14-day notice period is reduced, but the just-and-equitable test remains. Crucially, PIE applies to any unlawful occupier — whether a tenant in arrears whose lease has been cancelled, a person who never had a lease, or a former owner whose bond has been called up. Self-help eviction is a criminal offence under section 8. Landlords who change the locks, cut off water, or physically remove a tenant's belongings without a court order face criminal prosecution and a civil damages claim.

Transfer of ownership in South African immovable property is completed only when the Registrar of Deeds registers the deed of transfer in the Deeds Office, not when the Offer to Purchase is signed or the purchase price is paid. The Deeds Registries Act 47 of 1937 governs the registration process. Only a conveyancer admitted under section 15 of the Deeds Registries Act may lodge transfer documents, and a single conveyancer — the transferring attorney — is appointed by the seller to carry the transaction through.

Parallel to the transfer, a bond attorney is appointed by the financial institution granting the mortgage loan to prepare and register the mortgage bond under section 50 of the Act. Where an existing bond over the property is being cancelled, a cancellation attorney is appointed by the existing bondholder. The three attorneys lodge their deeds together — transfer, new bond, cancellation of old bond — so that registration is simultaneous and the gap between release of the old bond and registration of the new is eliminated.

Before lodgement, the seller must obtain clearance from the municipality (rates clearance certificate), the body corporate or homeowners' association (levies clearance), and SARS (transfer duty receipt). Transfer duty is payable by the buyer on a sliding scale set out in the Transfer Duty Act 40 of 1949 — currently zero on the first R1.1 million, rising to 13 per cent on amounts above R11 million. Where the seller is a VAT vendor and the sale is part of an enterprise, VAT at 15 per cent applies instead of transfer duty. The Conveyancing Document Pack assembled for any property transaction should include the Offer to Purchase, FICA documents, rates and levies clearances, the bond quotation, and the conveyancer's guarantee requirements.