Can a Property Sale Be Cancelled If the Seller Does Not Own the Property?

 

Written by Roy Bregman, admitted attorney with over 51 years' experience in property and conveyancing law. View Roy's profile.

Last updated: 15 July 2026

Key Takeaways •      A sale of land is valid only if it is in writing and signed by the true owner, or by someone with the owner's written authority. If it is not, the sale is void from the very beginning. •      You cannot sell what you do not own. A person who is not the registered owner cannot pass ownership, whatever the sale agreement says. •      A court order for transfer, obtained against the wrong person, does not bind the real owner and does not cure a void sale. The 2026 Hoosen judgment confirmed this. •      Before you pay anything, confirm the seller is the registered owner through a deeds office search, and let a conveyancer tie your payment to registration.

Yes, a property sale can be cancelled, and in many cases, it is void without a court even needing to cancel it, if the person who sold the property was not the true owner or did not sign as the law requires. In South Africa, land can only be sold in a specific way, and when those rules are not followed, the sale has no legal force at all.

This is not a mere technicality. In June 2026, the KwaZulu-Natal High Court set aside two Durban property sales because the seller did not own the properties. The real owner had never signed anything, and the buyers were left with nothing, even though one of them had already obtained a court order directing that the properties be transferred.

This article explains, what makes a property sale valid, what happens when a non-owner sells, what the courts have recently decided, and the practical steps that protect you as a buyer.

What does the law require for a valid property sale in South Africa?

The law requires that every sale of land be in writing and signed by the seller and the buyer, or by agents acting on their written authority. This rule appears in section 2(1) of the Alienation of Land Act 68 of 1981. The word alienation simply means the transfer or disposal of land, usually by a sale.

If a sale does not meet this requirement, it is void ab initio. That Latin phrase means void from the very beginning, as though the agreement never existed. No rights flow from it, and neither party can enforce it.

The writing requirement is strict. All of the material terms, meaning the important terms such as the parties, the property, and the price, must be captured in the signed document. A handshake, a WhatsApp message, or a verbal promise is not enough to sell a house.

Why must the true owner sign?

The true owner must sign because you cannot give someone more than you have. Our law captures this through an old principle, nemo plus iuris, which is shorthand for the idea that a person cannot transfer greater rights than they themselves hold. A seller who is not the owner holds no right of ownership to pass on.

So even a perfectly worded, signed agreement is worthless if the person signing as seller is not the registered owner and has no authority to act for the owner. The buyer receives a piece of paper, but no ownership.

What happens if someone sells a property they do not own?

If someone sells a property they do not own, the sale is void and ownership does not pass to the buyer. The true owner can approach a court to have the sale set aside and to stop any transfer going through at the deeds office. The buyer is usually left to claim back whatever money was paid, which can be very difficult if the seller has disappeared or spent it.

The table below sets out the common scenarios and their effect.

Scenario	Is the sale valid?	What the buyer can recover
Sale in writing, signed by the registered owner	Valid and enforceable	Full ownership once transfer is registered
Sale signed by an agent with the owner's written authority	Valid and enforceable	Full ownership once transfer is registered
Sale by a person who is not the owner and has no authority	Void from the start	Only a money claim to recover what was paid
Sale with a forged owner's signature	Void from the start	A money claim, plus possible criminal charges against the fraudster
Verbal or informal sale, not properly signed	Void from the start	Only a money claim to recover what was paid

 

Notice the pattern. When the sale is void, the buyer never gets the property. At best, the buyer has a claim for money back, and that claim is only as good as the seller's ability to pay.

What did the court decide in the 2026 Hoosen case?

In MEC for Human Settlements KZN v Hoosen and Others (2026), the court set aside two property sales because the seller was not the owner, and it stopped the deeds office from registering transfer. The properties in Durban were registered in the name of the provincial housing department. A close corporation that did not own the properties sold them to two buyers in 2017.

The buyers had gone further than most. They obtained a default judgment, meaning a judgment granted because the other side did not defend the case, ordering the seller to transfer the properties. The problem was that the true owner, the department, was never a party to that earlier case and knew nothing about it.

When the department found out, it asked the High Court to set the sales aside. The court agreed. It held that the sales did not comply with section 2(1), because the owner had not signed, so they were void. The court also rejected the buyers' arguments that the earlier judgment had settled the matter. Those arguments relied on res judicata, which means a matter that has already been finally decided, and on estoppel, which prevents a person from going back on an earlier position. Both failed, because the true owner had never been part of the earlier case and so could not be bound by it.

The buyers' counterclaim, which asked the court to force the department to sign the transfer, was dismissed. There was simply no legal basis to make an owner sign away property it had never agreed to sell.

The Supreme Court's rule in Cooper v Curro Heights

The Supreme Court of Appeal confirmed in 2023 that non-compliance with section 2(1) makes a land sale void from the start, and that such a sale cannot create any right to sue. In Cooper NO and Another v Curro Heights Properties (Pty) Ltd, the court dealt with a sale where an important term had not been properly reduced to writing and signed. The result was that the whole agreement was null and void.

The lesson from the Supreme Court is clear. The written and signed requirement is not a formality to be smoothed over later. If it is missing, there is no sale.

Why registration is not a guarantee: Legator McKenna

Registration in the deeds office does not automatically prove that a sale was valid. In the leading case of Legator McKenna Inc v Shea, the Supreme Court of Appeal explained how ownership passes under what lawyers call the abstract theory of transfer. In plain terms, ownership passes when the property is registered and when both sides genuinely intend ownership to change hands under a valid arrangement.

The practical point for buyers is this. Registration is powerful, but it is not magic. Where there is a real defect, ownership may not pass despite the entry in the deeds office, and a court can step in to put things right.

How can you protect yourself when buying property?

The best protection is to confirm ownership and follow the correct process before you part with any money. The steps below reduce your risk considerably.

First, obtain a deeds office search on the property. This confirms who the registered owner is, and whether a bank or anyone else has a bond or other interest registered against it.

Second, match the seller to the owner. Compare the seller's identity document to the name of the registered owner on the title deed. If they do not match exactly, stop and ask why.

Third, check authority where someone signs for the owner. If an agent, a company representative, an executor, or a curator signs, insist on seeing the written authority, such as a power of attorney, a company resolution, or letters of executorship.

Fourth, put everything in writing. Make sure the signed agreement records all of the material terms, including the parties, the full property description, the price, and the conditions of sale.

Fifth, use a conveyancer and tie payment to registration. A conveyancer is an attorney who specialises in transferring property. Structure the deal so that the purchase price is only released once transfer is safely registered in your name.

Sixth, watch for red flags. A price that is well below market value, pressure to pay quickly, a seller who is not named on the papers, or a bank still recorded as titleholder are all warning signs that deserve a closer look.

The bottom line

A property sale can be cancelled, and is often void from the outset, where the seller is not the true owner or the owner has not signed as the law requires. The 2026 Hoosen judgment is a sharp reminder that even a court order for transfer will not save a buyer if it was obtained against the wrong person. The Supreme Court in Cooper v Curro Heights made the same point about the written and signed requirement.

The good news is that these losses are avoidable. A deeds office search, a careful check of identity and authority, a properly drafted agreement, and payment tied to registration will protect you. When large sums and your family home are at stake, a few hours of an attorney's time is a small price for peace of mind.

Frequently asked questions

Can a property sale be cancelled if the seller does not own the property?

Yes. If the seller is not the registered owner and has no written authority to act for the owner, the sale is void from the start. Ownership cannot pass, a court can set the sale aside, and the buyer is usually left with only a claim to recover the money that was paid.

Is a verbal agreement to sell a house valid in South Africa?

No. Section 2(1) of the Alienation of Land Act requires every sale of land to be in writing and signed by the parties or their authorised agents. A verbal deal, a handshake, or a text message cannot validly sell property, and any such agreement has no legal force whatsoever.

What does void ab initio mean for a property buyer?

Void ab initio means void from the very beginning, as if the agreement never existed. For a buyer, no rights arise from the sale, no ownership passes, and the agreement cannot be enforced. The buyer's remedy is generally limited to reclaiming the money that was paid to the seller.

Does a court order for transfer protect me if the seller was not the owner?

Not necessarily. If the order was obtained against someone who was not the true owner, and the real owner took no part in that case, the order does not bind the owner. As the 2026 Hoosen judgment showed, such an order can be ignored and the underlying sale can still be set aside.

How do I check who really owns a property before I buy?

Ask a conveyancer to run a deeds office search. It confirms the registered owner, the property description, and any bonds or interests registered against it. Then compare the owner's details to the seller's identity document before you sign anything or pay any money.

Speak to us before you sign or pay

Buying property is one of the largest financial decisions most people ever make, and a single missed check can cost you everything you pay. At Bregman Moodley Attorneys, we help buyers and sellers confirm ownership, draft watertight sale agreements, and structure payment so that your money is safe until transfer is registered.

Get in touch before you commit. Call us on +27 (0)11 646 0335, email roy@bmalaw.co.za, or visit bregmans.co.za. We will take the sting out of your property transaction.

 

Vicarious Liability in South Africa: When Is an Employer Responsible for an Employee's Actions?

 

Written by Roy Bregman, an admitted attorney with over 51 years' experience in employment law and civil litigation.

Last updated: 4 July 2026 | Bregman Moodley Attorneys, Johannesburg

Key Takeaways •     Your business can be held liable for harm caused by an employee, even if you did nothing wrong yourself and even if the employee's conduct was forbidden or criminal. •     Courts now ask whether there is a sufficiently close link between the employee's wrongful act and your business, including whether your business created or increased the risk of the harm. •     Recent judgments, including Stallion Security and Fujitsu v Schenker, confirm that liability can extend to murder and theft committed by employees purely for their own gain. •     Careful hiring, sensible limits on employee powers, well-drafted contracts and adequate insurance are an employer's best protection.

 

What does vicarious liability mean in South African law?

Vicarious liability means that an employer is held legally responsible for a civil wrong committed by an employee, even though the employer itself did nothing wrong. Lawyers call this civil wrong a delict, which is simply an act, whether negligent or deliberate, that unlawfully causes harm or financial loss to someone else. It is a form of strict liability, sometimes described as no-fault liability, because the injured person does not have to prove that the employer was careless in any way.

Why does our law do this? The reasoning is practical and fair. The employer profits from the employee's work, so it should also carry the risks that go with that work. The employer is usually in a better financial position to compensate the victim, and it can spread that cost through insurance or pricing. For business owners, this is not an academic idea. It is a real financial risk that has grown steadily as our courts have widened the doctrine.

What must be proved before an employer is held liable?

A person claiming against an employer must prove three things: a true employment relationship, a wrongful act by the employee, and a sufficient connection between that act and the employee's job.

1. A true employment relationship

The wrongdoer must be an employee, not an independent contractor. Courts look at the substance of the relationship, not the label on the contract, using what is known as the dominant impression test. Key factors include the employer's right to control how the work is done, who provides the tools and equipment, and how integrated the person is into the business.

2. A wrongful act by the employee

The employee must have committed a delict. Their conduct must have been unlawful, committed with fault (either deliberately or negligently), and it must have caused harm or loss to someone. If the employee is not liable, the employer cannot be liable either.

3. The act happened within the course and scope of employment

This is the battleground in most cases. The classic example is easy: a delivery driver who negligently causes an accident while making a delivery is clearly doing his job, and his employer is liable. The hard cases arise where the employee strays from his duties.

Is an employer liable if the employee was pursuing his own interests?

Often, yes. The law traditionally distinguished between a detour and a frolic. A detour is a minor deviation, for example a driver who takes a slightly longer route to stop at a shop. The employer usually remains liable. A frolic is a complete abandonment of the employer's business, for example a driver who leaves his route entirely to visit a friend across town. Traditionally, the employer was not liable for a frolic.

That neat distinction broke down when employees committed deliberate crimes, such as assault, rape or theft, which served no possible business purpose. Our highest courts responded by developing a more flexible test.

How have the courts expanded employer liability? The close connection test

The modern test asks whether there is a sufficiently close link between the employee's wrongful act and the employer's business. It works in two stages. First, the court asks whether the employee acted purely for his own purposes (a factual question about his state of mind). If he did, the court then asks an objective question: is the act nonetheless closely enough connected to the business to make it fair to hold the employer liable? A crucial factor is whether the employer created or increased the risk of the very harm that occurred, for example by giving the employee authority, access, a uniform or trust that he then abused. The leading cases show how far this reaches.

K v Minister of Safety and Security [2005] ZACC 8

A young woman, stranded late at night, accepted a lift home from three uniformed, on-duty policemen. They raped her. The Constitutional Court held the Minister vicariously liable. Although the policemen acted entirely for their own purposes, they were simultaneously failing in their duty to protect her, and she had trusted them precisely because they were police. The connection between their crime and their employment was sufficiently close.

F v Minister of Safety and Security [2011] ZACC 37

A 13-year-old girl was raped by a policeman who was on standby duty, out of uniform and driving an unmarked police vehicle. The Constitutional Court still held the State liable. The girl had identified him as a policeman from the police radio and dockets in the car and trusted him for that reason. His employment gave him the means and the trust that made the crime possible.

Stallion Security (Pty) Ltd v Van Staden [2019] ZASCA 127

Stallion's site manager at a client's premises used his position, his security clearances and an override key to enter the client's offices after hours. He robbed the client's financial manager at gunpoint, forced him to transfer R35 000, and then murdered him. The crime was committed entirely for the manager's own gain, yet the Supreme Court of Appeal held Stallion liable. The court formally developed our law to recognise that an employer's creation of risk is a relevant consideration. Stallion had given its employee far more than a mere opportunity: it gave him unsupervised access and control over the very premises it was paid to protect.

Schenker v Fujitsu [2022] ZASCA 7 and Fujitsu v Schenker [2023] ZACC 20

A clearing clerk employed by the logistics company Schenker used his employer-issued security clearance and paperwork to collect a consignment of Fujitsu laptops worth over R9 million from an airport cargo warehouse, and stole them. It was accepted in the litigation that Schenker was vicariously liable for the theft. Schenker nevertheless escaped payment because its contract with Fujitsu contained an exemption clause: valuable goods had to be declared under special written arrangements, and Fujitsu had made none. In 2023 the majority of the Constitutional Court upheld that clause and dismissed Fujitsu's claim. The lesson cuts both ways: vicarious liability reaches even calculated theft by an employee, but a carefully drafted contract can lawfully limit the fallout.

Which test applies when? A quick comparison

Situation	Test the court applies	Typical outcome
Employee doing his job negligently	Standard test: was he acting in the course and scope of his employment?	Employer almost always liable.
Minor personal deviation (detour)	Standard test, applied generously.	Employer usually still liable.
Deliberate wrong for the employee's own purposes	Close connection test: is the act sufficiently linked to the business, including risk created by the employer?	Employer liable where its business created or increased the risk (uniform, keys, authority, trust).
Business merely gave the opportunity	Close connection test, strictly applied.	Mere opportunity is not enough; employer generally not liable.

 

What practical steps should employers take?

Employers cannot contract out of the doctrine itself, but they can dramatically reduce both the risk of an incident and the financial consequences. We recommend the following steps:

1.     Vet before you hire. Verify qualifications, references and, where lawful, criminal records, especially for positions involving trust, authority, keys, firearms or access to vulnerable people.

2.     Limit powers to what the job requires. Master keys, security clearances, firearms and financial authority should be given sparingly, recorded, and reviewed regularly. The more power you confer, the more risk you create.

3.     Put clear written policies in place. Codes of conduct, anti-harassment policies and job descriptions matter, but remember that forbidding an act does not, on its own, protect you if the act is closely linked to the employee's duties.

4.     Train and supervise. Training must be real, not a tick-box exercise, and supervision must match the risk profile of the role, particularly for employees working alone, off-site or after hours.

5.     Review your contracts. The Fujitsu case shows that well-drafted exemption and limitation clauses in your terms of business can lawfully limit your exposure. Have them professionally drafted and reviewed.

6.     Check your insurance. Make sure your public liability and fidelity cover extends to deliberate and criminal acts by employees and read the exclusions carefully.

7.     Remember your right of recourse. An employer held vicariously liable may claim the money back from the guilty employee, although in practice the employee often cannot pay.

Conclusion: what does this mean for your business?

South African courts have decisively moved towards holding employers accountable not only for what they authorise, but for the risks their business creates. You can no longer assume that a criminal act by an employee is automatically "his problem". If your business gave him the uniform, the keys, the authority or the trust that made the wrong possible, you may well be paying for it. The good news is that the risk is manageable, through diligent hiring, sensible limits on power, sound contracts and proper insurance. That is where timely legal advice earns its keep.

Frequently asked questions about vicarious liability

Can my business be liable even if I forbade the employee's conduct?

Yes. A prohibition in a policy or contract is a relevant factor, but it is not decisive. If the forbidden act is closely connected to the duties, powers or access you gave the employee, a South African court can still hold your business vicariously liable for the harm caused.

Is an employer liable for crimes committed by an employee, such as theft or assault?

It can be. In Stallion Security the employer was held liable for a murder, and in Fujitsu v Schenker vicarious liability for an employee's theft of laptops was accepted. The question is whether the employment created or increased the risk of the crime, not whether the employer approved of it.

Is a business liable for the actions of an independent contractor?

Generally, no. Vicarious liability requires a true employment relationship. Courts apply the dominant impression test, looking at control, tools and integration into the business, rather than the label used in the contract. A business can, however, be directly liable for its own negligence in selecting or supervising a contractor.

Can an employer claim the money back from the employee?

Yes. An employer that has been held vicariously liable has a common law right of recourse against the employee who committed the wrong. In practice this right is often of limited value because the employee cannot afford to pay, which is why insurance remains essential for employers.

Can a contract exclude liability for an employee's wrongdoing?

Sometimes. In Fujitsu v Schenker (2023) the Constitutional Court enforced an exemption clause that protected the employer from a claim arising from its employee's theft, because the customer had not made the required special arrangements for valuable goods. Clear, professionally drafted clauses can lawfully limit exposure between contracting parties.

Speak to an attorney before the risk becomes a claim

Whether you are an employer wanting to close the gaps, or you have suffered loss at the hands of someone else's employee, we can help. Bregman Moodley Attorneys has advised Johannesburg businesses and families for over 50 years, and a director personally handles your matter and returns your call promptly.

Call us on +27 (0)11 646 0335, email roy@bmalaw.co.za or visit bregmans.co.za to arrange a consultation.

What Is “Huur Gaat Voor Koop” and What Happens to My Lease When a Property Is Sold?

 

Written by Roy Bregman, admitted attorney with over 51 years’ experience in property and lease law.

Key takeaways •      A valid lease does not end when the property is sold. The new owner steps into the landlord’s shoes automatically, and the tenant keeps the right to stay for the rest of the lease. •      The buyer becomes the landlord only once the transfer is registered in the Deeds Office. Until then, the seller remains the landlord who can enforce or end the lease. •      Most lease terms pass to the new owner, but “collateral” extras such as an option to buy the property usually do not, unless the buyer knew about that right before transfer. •      A lawful lease cancellation does not, on its own, let you remove a residential tenant. You must still follow the eviction process in the PIE Act, as the Supreme Court of Appeal confirmed in 2025.

 

If you are buying, selling, or renting property in South Africa, one old legal rule can quietly reshape the whole deal. It is called huur gaat voor koop, an Afrikaans and Dutch phrase from our Roman-Dutch common law that means “lease goes before sale.”

In plain terms, a sale does not cancel an existing lease. The buyer takes the property with the tenant still in place and becomes the new landlord. This protects tenants, but it also creates real obligations and risks for buyers and sellers, whether the property is a family home or a commercial building.

This article explains how the rule works, what recent South African courts have decided, and the practical steps you should take before you sign anything.

What does “huur gaat voor koop” actually mean?

It means that a valid lease takes priority over a later sale of the same property. The lease does not fall away when ownership changes hands.

When the property is transferred, the buyer is substituted for the old landlord by operation of law. Lawyers call this happening ex lege, which simply means “automatically, without anyone needing to sign a new agreement.” No fresh contract and no formal handover of the lease is needed.

The tenant therefore keeps the right to occupy the property for the rest of the lease term. The main practical change is who the tenant pays rent to, and who they contact about landlord matters.

If I buy a property with a tenant, am I bound by the lease?

Yes. If you buy a property that already has a tenant on a valid lease, you are bound by that lease, and you cannot simply cancel it and evict the tenant because you are the new owner.

You are not only buying bricks and mortar. You are inheriting a legal relationship with rights and duties attached.

Do your due diligence before you sign

Ask the seller for copies of every lease and read them carefully before you make an offer. Pay attention to how long each lease runs, whether there are renewal options, whether the rent is market related, and what the landlord must do about maintenance, security, and improvements. A low rent locked in for years can seriously dent your return.

Sort out the deposit in the sale agreement

The landlord must refund the tenant’s deposit at the end of the lease, and that duty becomes yours once you own the property. Make sure the sale agreement says the seller will hand the deposit over to you, or that the price is adjusted to cover it.

If I am selling a tenanted property, what must I disclose?

You must disclose every lease on the property to any serious buyer, including verbal leases, which are just as binding as written ones but harder to prove.

Hiding or misstating a lease can be costly. Buyers usually ask for a warranty, a written promise in the sale agreement that the lease information is accurate. If that promise turns out to be false, the buyer can claim damages or even cancel the sale.

A strong tenant on a fair, long-term lease can make your property more attractive to investors. A problem tenant or an unusually low rent can do the opposite.

As a tenant, can the new owner evict me after the property is sold?

No, not simply because the property has been sold. Your right to stay for the rest of the lease is protected, and the sale on its own gives the new owner no ground to end your lease early.

Your rights and duties stay the same. You still pay rent on time and look after the premises, and you are entitled to be told about the change of ownership and given the new landlord’s contact and banking details.

There are limits, though. If your lease itself allows the landlord to cancel on notice, that clause travels with the lease and the new owner can use it. And where the law does allow removal, the owner must still follow the proper eviction process, which we explain below.

Which lease terms transfer to the new owner, and which do not?

Most terms that define the day-to-day landlord and tenant relationship transfer automatically, but purely personal “extras” that have nothing to do with occupation may not.

Lawyers call the terms that pass with the property the essentialia, meaning the essential terms that give the lease its identity. Side rights that are not really about renting the property are called collateral rights, which means extra rights that sit alongside the lease rather than forming part of it.

What transfers to the new owner under huur gaat voor koop?

Lease term or right	Transfers to the new owner automatically?	Plain-English note
Tenant's right to occupy for the lease term	Yes	The core protection the rule exists to give
Rent amount and payment dates	Yes	Part of the essential bargain
Lease duration and renewal options	Yes	An option to renew runs with the lease
Landlord's maintenance and repair duties	Yes	These become the new owner's duties
Permitted use of the premises	Yes	What the tenant may do on the property
The rental deposit	Liability yes, the cash in practice no	Arrange the handover of the money in the sale agreement
Option to purchase the property	Usually no	A collateral right, enforce against the seller, unless the buyer had notice

 

The most important example is an option to purchase, which is a right giving the tenant the first chance to buy the property. As the case law below shows, our courts have held that this kind of right does not automatically bind the new owner.

What do the South African courts say about huur gaat voor koop?

South African courts have applied and refined this rule for decades, and a 2025 Supreme Court of Appeal judgment has added fresh guidance. Here are the four decisions that matter most, in plain English.

Genna-Wae Properties v Medio-Tronics (1995)

Genna-Wae Properties (Pty) Ltd v Medio-Tronics (Natal) (Pty) Ltd [1995] ZASCA 42; 1995 (2) SA 926 (A)

This Appellate Division case settled the core rule. A company rented a unit in a Durban building for three years. While the lease was running, the owner sold the building to Genna-Wae, which told the tenant it would honour the lease. The tenant tried to walk away, arguing the lease had ended with the sale.

The court disagreed. It held that selling leased land does not end the lease. The buyer is substituted by law for the old landlord, who falls out of the picture, and the buyer takes over all the landlord’s rights and duties. Importantly, the tenant has no choice in the matter either, and stays bound to the lease on the same terms.

Spearhead Property Holdings v E & D Motors (2009)

Spearhead Property Holdings Ltd v E & D Motors (Pty) Ltd [2009] ZASCA 70; 2010 (2) SA 1 (SCA)

This Supreme Court of Appeal case drew the line between ordinary lease terms and collateral extras. A tenant’s lease included an option to buy the leased premises. The owner sold the whole shopping centre to Spearhead, and the tenant then tried to exercise the option against Spearhead, the new owner.

The court held that an option to purchase is a collateral right and does not pass to the buyer automatically under huur gaat voor koop. The tenant must exercise such an option against the seller who granted it. The court added one qualification through the doctrine of notice, the rule that a buyer who took transfer knowing about the tenant’s prior right to buy can be held to it, not because of the maxim, but because the buyer cannot ignore a right it knew about.

Properties in Motion v Lunkanga (2022)

Properties in Motion (Pty) Ltd v Lunkanga and Others (2021/9110) [2022] ZAGPJHC 248

This High Court case answered a timing question. When exactly does the buyer become the landlord? The court reaffirmed Genna-Wae and held that the substitution happens only once transfer is registered in the Deeds Office.

The practical effect is that before transfer, the seller is still the landlord and the only party who can enforce or end the lease. The buyer cannot act as landlord until the property is registered in its name.

Els v Venter (2025)

Els v Venter and Another (449/2024) [2025] ZASCA 163; 2026 (3) SA 366 (SCA)

This is the most recent Supreme Court of Appeal word on the subject. A couple emigrated to Australia and let their Stellenbosch home. The lease allowed them to cancel on three months’ notice. They sold the property and gave the tenant notice. The tenant relied on huur gaat voor koop and argued he could stay.

The court made three points that matter to everyone in a sale. First, the lease passes with all its terms, so a clause letting the landlord cancel on notice travels with it and stays valid. Second, the Consumer Protection Act did not protect this tenant, because the owners were private individuals letting a home, not landlords in the business of renting. Third, and most striking, even after a lawful cancellation you cannot force a residential tenant out by yourself. Any order requiring someone to leave a home is in substance an eviction, so the owner must follow the PIE Act, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act. The court set aside the fixed move-out date because that process had not been followed.

What should I do before buying or selling a tenanted property?

Treat the lease as part of the deal, not an afterthought. Whether you are buying or selling, the lease will shape your rights, your timing, and your money.

A practical checklist

1.    Ask for and read every lease, including any verbal or informal arrangements.

2.    Check the rent, the term, renewal options, and the landlord’s maintenance duties.

3.    Look for any option to purchase or right of first refusal, and get legal advice on whether it binds the buyer.

4.    Deal with the deposit expressly in the sale agreement, including who holds it and who must refund it.

5.    As a seller, disclose every lease in writing and be ready to give a warranty about it.

6.    As a buyer, build the lease, and any required eviction process, into your transfer timing, so you do not promise vacant possession you cannot lawfully give.

7.    Have a property attorney review the lease and the sale agreement before you sign anything.

The bottom line

Huur gaat voor koop protects tenants and keeps leases alive through a sale, but it also hands the new owner a set of obligations that careful planning can manage. The lease survives, the buyer becomes the landlord on registration of transfer, and most, but not all, lease terms move across with the property.

The 2025 Els v Venter judgment is a reminder that even a clear contractual right to end a lease must still be exercised through the correct legal process. Before you buy, sell, or rent a tenanted property, get the lease checked and the sale agreement drafted properly.

Frequently asked questions

Does a lease survive the sale of a property in South Africa?

Yes. Under the principle of huur gaat voor koop, a valid lease continues after the property is sold. The buyer is substituted for the old landlord by operation of law and must honour the lease until it ends. The tenant keeps the right to occupy for the full lease term.

Can a new owner evict a tenant after buying a property in South Africa?

Not merely because the property was sold. The sale alone gives no ground to evict. A new owner can only end a lease on grounds allowed by the lease or the law, and for a home must still follow the PIE Act’s eviction process, as confirmed by the SCA in Els v Venter (2025).

Does huur gaat voor koop apply to verbal leases?

Yes. The rule protects valid leases whether they are written, verbal, or implied by conduct. A verbal lease is just as binding as a written one, although it can be harder to prove. Sellers must disclose verbal leases to buyers, and buyers should ask specifically about any informal arrangements.

Is an option to purchase in a lease binding on the new owner?

Usually not. In Spearhead Property Holdings v E & D Motors (2009), the SCA held that an option to buy is a collateral right that does not pass automatically to the new owner. The tenant must enforce it against the seller, unless the buyer took transfer knowing about the option.

Does the Consumer Protection Act apply to my residential lease?

Not always. In Els v Venter (2025), the SCA held that the Consumer Protection Act does not cover private homeowners who let a property incidentally, because they are not in the business of renting. It generally applies only to landlords who rent out property in the ordinary course of business.

Need help with a tenanted property sale or lease?

Property deals with tenants reward careful planning and punish guesswork. At Bregmans Attorneys we have guided buyers, sellers, landlords, and tenants through these transactions since 1974, and we will make sure your lease and sale agreement protect you.

Call us on +27 (0)11 646 0335, email roy@bmalaw.co.za, or visit bregmans.co.za. Send an email and we will call you back within 24 working hours.

This article is for general information and does not constitute legal advice. The law may change, and every situation is different. Please consult a qualified attorney for advice on your specific circumstances. Last updated: June 2026.