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Lopes Attorneys Inc, Stonemill Office Park, 300 Acacia Road, Johannesburg (2026)

16/10/2026

The Bloody Hand Rule

South African succession law contains a rule with a grim name: de bloedige hand neemt geen erf. The bloody hand does not inherit. A person who unlawfully causes the death of another may be disqualified from inheriting from that person. The Pretoria High Court discussed the rule in L.V.N v N.J in 2025, while considering the broader common-law doctrine of unworthiness to inherit.

The doctrine of unworthiness to inherit, or indignitas, comes to us through Roman and Roman-Dutch law, and in Danielz NO v De Wet the Western Cape High Court described the maxim as part of our common law since Roman times. The facts show that murder is not the only conduct that may make someone unworthy to inherit. Mrs De Wet had arranged an assault on her husband, who was shot and killed. She was convicted of conspiracy to assault and of assault with intent to do grievous bodily harm, not of murder, and the court still held that she could not take the proceeds of his life policies and was unworthy to inherit under his will. A person who deliberately planned and took part in a vicious assault that caused death, the court said, should not benefit from the consequences, whether or not she foresaw them.

In Lombard v Van Der Merwe in 2026, the North West High Court discussed how unworthiness extends beyond homicide, citing earlier cases involving conduct such as concealing or forging a will. It declared an heir unworthy after considering financial abuse of the estate and false evidence in the proceedings.

Danielz observed that the grounds of unworthiness are not static and that the common law should be developed. The name still points to homicide, but the courts’ inquiry can reach further: whether an heir’s conduct towards the deceased makes it contrary to public policy to let that person inherit.

14/10/2026

The Legal Meaning of a Baseline

Every environmental assessment measure changes against something. That reference point is baseline, the condition of the water, air, habitat or land before a proposed activity begins. It is usually presented as a neutral fact, a description of what is already there, yet the choice of what to describe and when to describe it can shape the outcome of the whole assessment.

The effect is easiest to see where an environment is already under pressure. A river that has declined over several decades, or a habitat already fragmented by earlier development, can be recorded in its present state and treated as the starting point. Against that figure a further loss looks modest. Each new assessment then inherits the condition left by the last one, and what was lost earlier drops out of the comparison. This is often described as a shifting baseline, and it matters legally because baseline data influences how significance is measured, what mitigation is thought necessary and whether an impact appears acceptable at all.

South African law does not leave the problem entirely open. The EIA Regulations define a cumulative impact as including the past, current and reasonably foreseeable future impacts of an activity, considered together with those of an associated and similar activities, and section 24(2)(a) of the National Environmental Management Act 107 of 1998 requires impacts that may become significant in combinations with other activities to be considered. In South Durban Community Environmental Alliance v Minister of Forestry, Fisheries and the Environmental [2025] ZASCA 134, the Supreme Court of Appeal upheld the complaint that the Minister had not considered the cumulative effect of gas extraction and transport when authorising Eskom’s Richards Bay gas power plant. The case was not about baselines as such, but the definition it relies on looks backwards as well as forwards.

A decision-maker, or a reviewing court, can ask whether the data is recent enough to be reliable and whether it was gathered in an unusually wet, dry or disturbed period. It can also ask whether earlier pressures on the system have simply been absorbed into what is called the existing condition.

A baseline is only as useful as the care taken in setting it. Where the starting point already reflects earlier damage, an assessment that treats it as normal will tend to understate what a new activity adds, which is why the reasoning behind a decision should show how that starting point was chosen.

12/10/2026

The Hidden Life of a Definition

Some of the most consequential legal disputes begin with a word that looks ordinary. Whether a worker is an “employee”, or a substance is “waste”, can seem a matter of plain meaning until a court has to decide where the term stops and which statutory regime follows from the answer.

A definition usually works as a threshold. Once something falls inside a defined term, the statute that uses it applies, together with whatever that statute attaches to the status. A person classified as an employee is entitled to protections that an independent contractor does not have, and material that qualifies as waste attracts environmental controls that would not otherwise apply. Falling outside the definition can place a person, object or activity beyond the reach of the statute altogether.

Section 200A of the Labour Relations Act 66 of 1995 shows how much can ride on this. A person who works for another and earns below the threshold set by the Minister is presumed to be an employee if any one or more of the listed factors is present, regardless of the form of the contract, until the contrary is proved. The presumption can be rebutted, but it places the burden on the party disputing employment.

Two parties can therefore agree on every underlying fact and still reach opposite legal results because they classify the same thing differently. Courts approach the meaning of a definition by looking at the language, the context and the purpose of the provision, as the Supreme Court of Appeal explained in Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13.

A definition in the opening section of an Act can look like background. It often decides whether the statute applies at all, which is a good reason to read it as carefully as the provisions that follow.

02/10/2026

Can You Steal Your Own Property?

Theft is usually understood as taking something that belongs to somebody else.
South African law allows for a stranger version of it.

An owner can steal their own property from someone who, at that moment, has a stronger legal right to possess it.

This is possible because ownership and possession are not the same thing.
You may own an object without being entitled to immediate physical control of it.

Someone else may lawfully hold it under a contract, a pledge, a lien or another recognised right. Your ownership survives that arrangement even while your right to possess is temporarily limited.

If you then take it back without lawful authority, the law can treat the taking as theft.

South African courts have treated self-help as a separate problem from the underlying ownership dispute for well over a century. The Constitutional Court reaffirmed this in Ngqukumba v Minister of Safety and Security: the remedy against unlawful dispossession exists precisely to stop people taking the law into their own hands. It does not matter whether the person doing the dispossessing actually had the better claim. That question is for a court to decide.

Ownership alone does not make every repossession a crime. A court still has to find unlawful and intentional appropriation, together with an intention permanently to deprive the person entitled to possession.

Property law can recognise, at the same time, that one person owns something and another has the better immediate right to hold it.

Taking back what is legally yours is not always the defence it sounds like.

30/09/2026

The Difference Between Being Permitted and Being Protected

A licence, approval, registration or contractual permission answers one question: may this be done? It doesn’t, however, answer what happens if doing it affects someone else’s rights, breaches a legal duty, or creates consequences elsewhere in the legal system.

A business may be properly licensed and still get sued for breach of contract over the same activity. Regulatory approval for a product doesn’t mean the product is safe from a consumer protection claim, and a permit to carry out an activity says nothing about the environmental or common-law consequences that follow once it’s actually carried out.

The Constitutional Court confronted a version of this problem in Mankayi v AngloGold Ashanti. Mineworkers had received compensation under the Occupational Diseases in Mines and Works Act for occupational lung disease, and the mining company argued that this statutory compensation scheme barred them from also suing in delict for negligence. The Court disagreed. Section 35 of the Compensation for Occupational Injuries and Diseases Act, the provision that does bar a common-law claim, only applies to workers who are entitled to claim under that particular Act. Because mineworkers were compensated under a different statute altogether, one that contained no such bar, their common-law claim survived. Being covered under one legal regime did not extinguish liability under another.

Most legal permissions work the same way. They operate within a specific statutory, contractual or regulatory framework, and they confirm that one requirement has been satisfied. They do not automatically displace duties that arise elsewhere, particularly in heavily regulated environments where several legal regimes can apply to the same conduct at once. The same activity can engage licensing rules, consumer obligations, contractual duties, data protection requirements, intellectual property rights and environmental controls simultaneously, and compliance with one of these does nothing to satisfy the others.

Authorisation and immunity are not the same concept, even though they are often treated as interchangeable in practice. The first allows conduct to proceed. The second protects against legal consequence, and South African law, as Mankayi shows, does not assume the first includes the second unless a statute says so clearly.

Organisations can find themselves in real difficulty even where nobody ignored a single rule. Good legal risk management has to ask what a given permission actually covers, what it leaves out, and which other obligations continue to operate once that permission is in hand.

28/09/2026

The Evidence an Animal Cannot Give

Animal welfare law has an unusual evidentiary problem: the subject of the case cannot explain what it is experiencing.

An animal cannot tell a court when pain began, whether a condition became intolerable, or whether unusual behaviour comes from fear, injury or distress. The law has to reconstruct that experience indirectly through veterinary findings, behaviour, physical condition, environment and records made at the time.

Some evidence is straightforward. A wound can be photographed and weight loss measured. Chronic stress is harder to pin down. Behaviour may be significant, but only when understood against what is normal for that species and those circumstances. Often, the picture emerges from several indicators rather than one decisive fact.

That creates two risks. One is anthropomorphism: reading human emotions into animal behaviour without enough scientific basis. The opposite is treating the absence of human-like expression as evidence that suffering is absent. Neither is a reliable starting point.

South African case law has recognised something of this difficulty. In National Council of Societies for the Prevention of Cruelty to Animals v Openshaw, Cameron JA observed in a minority judgment that animals can suffer immensely while having “no voice of their own”. The remark was not part of the majority holding, but it captures a practical reality of welfare cases: the animal’s experience reaches the courtroom through somebody else.

That makes veterinary and behavioural expertise particularly important. It does not remove uncertainty, but it gives a court a better basis for interpreting what the available signs may mean.

Records matter too. Changes in appetite, repetitive behaviour, deteriorating condition or recurring treatment may appear insignificant individually but become meaningful when viewed together over time.

The animal’s silence proves nothing either way. It cannot confirm suffering, but it cannot reassure us either.

The better the evidence surrounding that silence, the more reliably the law can assess an experience it will never hear described directly.

21/09/2026

The Problem With Decisions Built on Assumptions Nobody Tested

Some decisions only look rational because nobody checked the assumption underneath them.

A forecast assumes demand holds steady. A regulator assumes a safeguard will work as intended. A strategy depends on a customer behaving as they always have. None of that is a problem while the assumption holds. It becomes one the moment it doesn't, and nobody thought to check beforehand.

South African administrative law has a well-known example of exactly this. When the President appointed Menzi Simelane as National Director of Public Prosecutions, he did so believing Simelane was fit for the job, despite adverse findings already before him from the Ginwala Commission and a Public Service Commission report recommending disciplinary proceedings. The Constitutional Court set the appointment aside, not because it decided Simelane was unfit, but because the President had never properly engaged with the evidence in front of him. His fitness had been treated as settled, not established.

That's usually how the problem arises. An untested assumption rarely announces itself. It sits inside a model or a decision-maker's own settled impression, and takes on the same weight as everything else without ever having earned it. A decision-maker can walk through every step of the logic, and each one can sound sensible, while the actual weakness sits one level down.

The same risk exists commercially. A board approves an investment because the projected return looks sound. A risk goes unescalated because a control is assumed to be effective. None of it looks reckless from the outside.

Not every assumption can be tested. But there's a real difference between relying on one because it's the best available basis for a decision, and relying on one because nobody thought to test it. Simelane's appointment looked defensible right up until someone finally did.

18/09/2026

For the women of Ekurhuleni.

The deaths of women across Ekurhuleni in recent weeks are deeply disturbing.

We stand with the families who are grieving, with the women who are afraid, and with every woman who should be able to move through her community without fear.

What has happened in Ekurhuleni is part of a much wider crisis. Women across South Africa continue to live with the reality of violence and fear in places where they should be safe.

The answer cannot be to keep telling women to be more careful, more vigilant or more restrained in how they move through the world. The burden of safety cannot keep being placed on women while the violence itself remains insufficiently confronted.

Every woman deserves to live freely, to move without fear, and to know that her safety is not something she must earn through caution.

May whoever is responsible be brought to justice, and may the women whose lives have been lost be remembered as more than the circumstances of their deaths.

16/09/2026

When the Law Treats a Forecast as Evidence

Some of the most important evidence in law concerns events that haven't happened yet.

Environmental assessments predict future impacts. Financial models estimate future losses. Regulators weigh projected demand and anticipated risk. None of that is a fact in the ordinary sense, but it's never stopped South African courts from treating it as evidence that matters.

In Earthlife Africa Johannesburg v Minister of Environmental Affairs, the Gauteng High Court had to decide whether a coal-fired power station's environmental authorisation could stand without a proper assessment of its climate change impact, projected out to 2060. The Department argued the authorisation was valid regardless. The Court disagreed, holding that a formal climate change impact report was the best evidentiary means available for weighing a harm that hadn't yet occurred.

A forecast starts with facts that already exist: historical data, present conditions, known patterns. Those get combined with assumptions about what's likely to follow. Change the assumptions or the model, and the projected future changes with them, which is exactly why the Court didn't just ask whether the authorisation looked reasonable. It asked whether the underlying modelling had actually been done properly.

A forecast doesn't become a fact simply because it's sophisticated. But the future doesn't have to arrive before the law takes it seriously.

The harder question: how rigorous does a forecast have to be before a court will let a decision rest on it?

14/09/2026

The Problem with Decisions That Are Correct for the Wrong Reason

A decision can look perfectly defensible at the end and still be legally vulnerable because of how it was reached.

We focus on outcomes: was the permit granted, the application refused, the licence renewed? But legality doesn't begin and end with the final answer.

In Bato Star Fishing v Minister of Environmental Affairs and Tourism, the Constitutional Court confirmed that a decision can be reviewed not because the outcome seems wrong, but because the reasoning wasn't rationally connected to the evidence before the decision-maker.

The Court didn't ask only whether the result looked fair. It asked whether the decision-maker actually engaged with the right considerations at the time.

That distinction has teeth. A decision-maker may reach a sensible-looking conclusion while relying on irrelevant factors or misreading the statutory purpose. The fact that someone else might have reached the same result doesn't fix that.

Public power isn't judged only by whether a result can be defended after the fact. It's judged by whether the decision was connected to the law, the evidence, and the purpose the power was given for.

If a decision could survive purely because lawyers later found a better justification for it, the discipline lawful decision-making is meant to impose would quietly disappear.

None of this means every imperfect explanation invalidates a lawful result. But where the wrong considerations clearly drove the decision, a correct-looking outcome may not be enough to save it.

How do you know your reasons would survive scrutiny, if no one has ever had to test them?

Lopes Attorneys Inc

16/10/2026

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Monday	08:00 - 17:00
Tuesday	08:00 - 17:00
Wednesday	08:00 - 17:00
Thursday	08:00 - 17:00
Friday	08:00 - 17:00