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South African Deeds Journal South African Deeds Journal March 2008 • Issue No. 14 March 2008 • Issue No. 14 CROSS-BORDER INSOLVENCIES COUCHING OF A WAIVER OF PREFERENCE IN A SECTIONAL BOND WAIVER OF LEGAL EXCEPTIONS REGISTRARS' CONFERENCE RESOLUTIONS OF 2007 THE RECOGNITION OF CUSTOMARY MARRIAGES ACT, 120 OF 1998 Department of Land Affairs CHIEF REGISTRAR OF DEEDS Land Affairs Department: REPUBLIC OF SOUTH AFRICA land affairs

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Page 1: South African Deeds Journal - Department of Rural ... · Deeds Training Spreads its Wings 16 The views expressed in the articles published in this journal do not bind the Department

S o u t h A f r i c a n D e e d s J o u r n a lS o u t h A f r i c a n D e e d s J o u r n a lMarch 2008 • Issue No. 14March 2008 • Issue No. 14

CROSS-BORDER INSOLVENCIES

COUCHING OF A WAIVEROF PREFERENCE IN A

SECTIONAL BOND

WAIVER OFLEGAL EXCEPTIONS

REGISTRARS' CONFERENCERESOLUTIONS OF 2007

THE RECOGNITION OFCUSTOMARY MARRIAGES

ACT, 120 OF 1998Department of Land Affairs

CHIEF REGISTRAR OF DEEDS

Land AffairsDepartment:

REPUBLIC OF SOUTH AFRICA

land affairs

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GUIDELINES FOR ARTICLESIN THE SADJ

SADJ welcomes contributions, in any of the 11 official languages,

especially from deeds office staff and practitioners. The following

guidelines should be complied with:

1. Contributions should as far as possible be original and not published elsewhere.

2. Contributions should be useful or of interest to the conveyancing practice and land

issues. The decision of the editorial committee is final.

3. Authors are required to provide their involvement or interest in any matter discussed

in their contributions.

4. Footnotes should be avoided. Case reference, for instance, should be incorporated into

the text.

5. When referring to publications, the publisher, city and date of publication should be

provided. When citing reported or unreported cases and legislation, full reference details

should be included.

6. Articles should be in a format compatible with and should either be

submitted by e-mail or, together with a printout, on a stiffy or compact disk. Letters to the

editor, however, may be submitted in any format.

7. The editorial committee and the editor reserve the right to edit contributions as to style

and language and for clarity and space.

8. Acceptance of material for publication is not a guarantee that it will be included in a

particular issue, since this must depend on the space available.

9. Articles should be submitted to Allen West at e-mail: [email protected] or Private Bag

X659, Pretoria 0001.

Micro-soft Word

Land AffairsDepartment:

REPUBLIC OF SOUTH AFRICA

land affairs

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Page 3: South African Deeds Journal - Department of Rural ... · Deeds Training Spreads its Wings 16 The views expressed in the articles published in this journal do not bind the Department

Land AffairsDepartment:

REPUBLIC OF SOUTH AFRICA

land affairs

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Page 4: South African Deeds Journal - Department of Rural ... · Deeds Training Spreads its Wings 16 The views expressed in the articles published in this journal do not bind the Department

News

Property Law Update

Case Law

Books

Letters to the Editor

Other features

DISCLAIMER

HOW TO SUBSCRIBE

PRINTER

Discussion on section 35A of the Income Tax Act 25Cross-Border Insolvency Law 30

Couching of Waiver of Preference in a Sectional Bond 3Massing and Adiation vis à vis Massing and Election 5Registrars' Conference Resolutions of 2007 8The Recognition of Customary Marriages Act, 120 of 1998 9Beneficiary's Disposal in a Trust and Transfer Duty Implications 17Sales from Estates: Section 18(3) Act 66 of 1965 19Chief Masters Directive 3 of 2006: Appointment of Executorsand/or Master's Representatives in Deceased Estates by the Master 20Waiver of Legal Exceptions 25Change of Names of Building Societies and Banksof Immovable Property in South AfricaDoes Agricultural Land Still Exist given the Stalwo v Wary case? 32

Conveyancing Through the Cases 34

Articles Published in Legal Journals 34

Testamentary Conditions and Redistribution Agreements – Reply 1 35Section 4(1)(b) – A rethink 35Lapsing of Real Rights of Extension 36SADJ – October 2006 – Transfer Duty : Acquisition of Immovable 36Property by a Company, Close Corporation or Trust:Article by PS Franck

The Deeds Registry as a Necessary Economic Infrastructure 2Long Distance Runner 7Reflecting the Past 40 Years 14Deeds Training Spreads its Wings 16

The views expressed in the articles published in this journal do not bind theDepartment of Land Affairs and the Chief Registrar of Deeds. The ChiefRegistrar of Deeds does not necessarily agree with the views of thecontributors.

Anybody who would like to be placed on the mailing list for the SADJ, mustsubmit their postal address to [email protected]

Lesedi Litho Printers88 Visagie Street, PRETORIA

27

The new year has literally commenced

with a bang, albeit with or without load

shedding. This issue is once again

bumper-packed with interesting

articles and news.

Photos are provided on courses and conferences for readers to try

and identify previous Registrars and Deeds Office officials.

The 2007 resolutions taken by the Registrars are included. Please

note that they have become operative with effect from 2 January

2008.

The article chosen as the best article in the previous issue was theone by the former Registrar of Deeds Kimberley, Mr WillieSwanepoel on Fideicommissums. Accolades were received fromfar and wide for the article on Robben Island together with thesuperb photography. Thanks once again Loodt on a well-researched article.

Abelated blessed new year to all.

Contributions may be sent to the Editor:

Via e-mail or post

AS West

Private Bag X659

PRETORIA

0001

This journal is also published on the Department of Land Affairs'

website:

A S West • A Boraine • L J Vosloo • R Rossouw • A van Wyk • M M

Meyer • LKilbourne • I Broodryk • M Grovè • T Maree

Our Front Cover picture this month shows a colourful row of

historic houses on the slopes of Signal Hill in the Cape Town city

bowl, which is known as the “Malay Quarter”, so named after the

inhabitants who have lived there since they were freed from

slavery in the early 1800s. The area is a major tourist attraction,

hence the colourful outside paint schemes of some of the houses.

It is hardly imaginable that in the 1930s, due to the deterioration of

many of these historic buildings, it was considered demolishing

the houses to make way for development. A very informative

paper, written by Cape Town professor Fabio Todescini and

published on the website .

org.victoriafalls2003/papers/A2-6%20-%20 Todescini.pdf gives

an authoritative insight in the background of the Malay Quarter, or

Bo Kaap and its inhabitants, who have shaped this unique

heritage site.

ALLEN WEST - EDITOR

CONTRIBUTORS:

COVER PHOTO

[email protected]

www.dla.pwv.gov.za

http://www.international.icomos

Editorial Committee

Allen West (Editor) - Deeds TrainingJoanne Dusterhoft - King William's TownTebogo Monnanyana - BloemfonteinAli van der Ross - VryburgHennie Geldenhuys - Office of the Chief Registrar of DeedsLood Vosloo (Sub-Editor) - Cape TownZandré Lombaard (Scribe) - Deeds Training (Scribe)Dorethea Samaai - Directorate: Communication ServicesMarie Grovè - Deeds TrainingElizabeth Govender - PietermaritzburgAlan Stephen - JohannesburgLevina Smit - KimberleyGeorge Tsotetsi - Office of the Chief Registrar of DeedsGustav Radloff - Conveyancer, MacRobert Inc.André Schoeman - Office of the Surveyor General, Pretoria

ontentsC ditorialEAllen West - Editor

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2

The Deeds Registry as a NecessaryEconomic Infrastructure By: Professor Andreas van Wyk

University of Stellenbosch

Astrike of Deeds Registry officials during 2006 hardly received

attention in the highest quarters of Government. The reaction

might well have been that it is a strike by just another relatively

obscure group of aggrieved civil servants, within the

Department of LandAffairs.

In reality, the offices of the registrars of deeds, which are

mostly situated in areas where there are also Divisions of the

High Court, form a vital piece of economic infrastructure.

Without it our modern free market system would hardly

function or function with great difficulty, as has been shown in

countries aligned to the former Soviet Union. Likewise, in

many Third World Countries, the lack of a proper land register

stifles economic development.

As an everlasting asset, land forms the most obvious security

one has to offer for the repayment of a loan. However, this

presupposes that the particular piece of land may be clearly

identifiable. Only then will individual or institutionalized money

lenders be prepared to provide credit on the strength of a real

right against the debtor's land this which we nowadays call a

mortgage bond.

This is the basis upon which the whole modern banking

system is built. If all land in a country belongs to the State, then

banks are largely restricted to providing loans to the different

organs of State or merely providing short term loans, even if

individual property rights on land are acknowledged without a

credible system which proves X or Y's legal right. So for

example, in Indonesia, or in other parts of the developing world

no bank will provide significant credit to say a Javanese

subsistence farmer.

It is exactly in this area where South Africa inherited one of its

most significant strategic advantages from the Roman Dutch

law. Fundamental to a credible cadastre (property register) is

the survey performed by many generations of surveyors,

which enables almost each piece of land to be identified. This

provides not only the creation of a register of who owns a piece

of land or has rights thereto, but may also provide this

information for public knowledge.

This all may sound obvious, but it is not really so?

In some of the most highly developed Western countries, such

as Britain there is not really an equivalent to South Africa's

reliable deeds registers (property registers).

During the late Roman times the transfer of land took place by

physically handing over a document in which the transferor

(i.e. the seller of a house) confirmed that he transfers the land

to the transferee (the buyer). This event was not accompanied

by public notification. This in essence is still the situation in

England today with their “conveyance by deed” and

complicated matters to outsiders who wish to know who the

owner of a specific piece of land is.

However, in other parts of North Western Europe things

developed differently during the Middle ages. The transfer of

land had to take place in public, usually in the presence of

family or neighbours. This developed into a practice where this

function was performed in the presence of the local judicial

official who had to keep a copy of the transfer deed in his office.

This finally gave rise to legislation enacted between 1529 and

1580 by the then Austrian-Spanish rulers who also ruled the

Lower Lands of Holland. Accordingly, all transfers of land and

rights thereto (such as a mortgage or servitude) had to be

registered in the local court.

This is precisely what happened in the Cape. Simultaneously

with the establishment of a separate Council of Justice (“Raad

van Justisie”) in 1680, all land transfers were registered there

until the early 19 century when the British administration in

the Cape established a separate registration office for land

titles. The Roman-Dutch principles upon which this office then

functioned remained, and indeed still does so to this day.

South African Deeds Registries are therefore government

offices where information relating to land and certain other

related judicial information (such as antenuptial contracts) are

readily provided for public access. Information kept there

enable potential land purchasers or credit providers to decide

whether they wish to proceed with such transactions or not.

Land registers may function in one or the other way. In certain

Western European countries a so-called positive registration

system is employed, which means that information recorded

may be fully relied upon. By implication this means that the

relevant State will guarantee the accuracy of the information

contained in its land registers.

In South Africa, and elsewhere, the system however is

negative. This means that the information contained in deeds

registers create a strong presumption, but total reliability

cannot be guaranteed.

Nevertheless, great care is taken to ensure the accuracy of our

registers. In its present form, the Deeds Registries Act, 47 of

1937 places a great deal of responsibility on conveyancers

(the specialized attorneys who deal with land transfers and the

rights thereto) to take responsibility for this.

On the other hand, our system also relies to a great extent on

th

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2

Couching of waiver of preferencein a sectional bond

By: Marie GrovéDeeds Training, PRETORIA

The Sectional Titles Act, 95 of 1986 does not provide for the waiver of a personal servitude in a sectional bond. The matter was

recently discussed at the Registrars' Conference, and the Registrars resolved that the bond must be made subject to the usufruct and

the waiver must be contained in the bond, and not the annexure:

Unfortunately the conference did not state whether the Power ofAttorney (PA) must be lodged when the usufructuary (or holder of the

personal servitude) appoints an agent by means of a PA. It can be reasoned both ways whether the PAmust be lodged or not.

In the first instance, the PA falls within the ambit of the documents described in Annexure 6B, as referred to in regulation 40 of the

Sectional Title regulations, in which case the PAshould not be lodged.

It can also be reasoned that the personal right is waived in terms of the Deeds Registries Act, 47 of 1937, and not in terms of the

Sectional TitlesAct, 95 of 1986. Therefore the PAmust be lodged.

It is suggested that the waiver of preference in the bond, as directed by the Conference should be set in the example below, namely:

“52/2007 Couching of waiver of preference of usufruct

Resolution:

2 91/1996 BATCAVESERF 957 ELDORAIGNE TOWNSHIP City

of Tshwane Metropolitan Municipality 90(NINETY)

SUBJECT TO ALL THE TERMS AND CONDITIONS CONTAINED THEREIN AND A LIFELONG USUFRUCT IN FAVOUR OF

Uncertainty at present prevails as to how the waiver or preference of a real right, such as a usufruct, must be couched in

a sectional bond.

The usufructuary must either personally or in terms of an agent appear before the conveyancer. The bond must be

made subject to the usufruct and the waiver must be contained in the bond and not the annexure.”

Mortgagor hereby binds as a FIRST MORTGAGE, subject to the conditions set out in the annexure to this bond:

Aunit consisting of:

(a) Section No as shown and more fully described on Sectional Plan No SS in the scheme known as inrespect of the land and building or buildings situated at , in the local authority of

of which section the floor area, according to the said sectional plan issquare metres in extent; and

(b) an undivided share in the common property in the scheme apportioned to the said section in accordance with theparticipation quota as endorsed on the said sectional plan.

Held by virtue of Deed of Transfer ST

3

Couching of Waiver of Preferencein a Sectional Bond

By: Marie GrovéDeeds Training, PRETORIA

the professionalism of deeds examiners employed by the

State to ensure the integrity of the registers.

Of course our land registration system and all that it is built

upon only forms part of the total judicial infrastructure on which

our economy is based. If anarchy in a given area escalates to

such an extent that a bank can no longer retrieve its

outstanding debt on a property by way of public auction, then

the best land registration system becomes meaningless.

However, one must not underestimate the value to the

economy of a reliable land register.

The above article originally appeared in the SAKE24 supplement of DIE

BURGER and is reproduced here with kind permission from Media24, and the

author. See also the monetary value of bond and bond registrations published in the

October 2007-issue of the SADJ on pages 15 to 20 which is ancillary to the

essence of this article. It was translated from the original Afrikaans by L J Vosloo. -

Editor

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EMMA GEEL, IDENTITY NUMBER 520101 0032 00 2, UNMARRIED, WHICH RIGHT IS BEING WAIVED IN FAVOUR OFTHIS BOND, AS WILLAPPEAR LATER ON IN THE BOND

ALEXANDER HONEY,

SIGNED

__________________________CONVEYANCER

__________________________REGISTRAR OF DEEDS

*I, the undersigned, duly authorized by virtue of a power of attorney, signed at Pretoria on 7 January2004, by EMMA GEEL, IDENTITY NUMBER 520101 0032 002, UNMARRIED, the holder of the usufruct over the withinmentioned property, do hereby waive the usufruct on behalf of the usufructuary, in favour of the mortgagee.

Signed at Pretoria on 20 July 2004

____________________________________Alexander Honey

Duly authorized by Usufructuary

at PRETORIA on 26 July 2004

____________________________________Mortgagor / Duly authorized agent of

Mortgagor

Before me Elaine BuckerooSuite 16, Wildberry Park777 WildberryAvenueMUCKLENEUK

Registered at PRETORIA on

*The exact wording of the waiver is the prerogative of the preparer.

4

See page 5 for other resolutions taken by Conference. - Editor

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Massing and AdiationMassing and Election

vis à vis

By: Allen WestDeeds Training, PRETORIA

Resolutions taken at the Conferenceof Registrars 2007

By: Allen WestDeeds Training, PRETORIA

This article is not intended to provide legal treatise on massedestates, but merely to provide a simple distinction betweenmassing and adiation, and massing and election.

The question begging an answer is whether a will providea limited interest in the massed property in favour of thesurviving spouse. According to 's Mortgage and Pledge(Third Edition) on page 299 it is a prerequisite that thesurviving spouse receives a limited interest in the massedproperty. The authority for this is probably based on theprovisions of section 37 of theAdministration of EstatesAct, 66of 1965. Furthermore the case of

; 1873 Buch 31 provides that “”.Adiation

is thus dependent on the surviving spouse obtaining a limitedinterest in the massed estate.

However, when election occurs in a massed estate entirely,there is no necessity for a limited interest and themay lie distinct from the inheritance.

Thus to summarize, where there is a massed estate, and thesurviving spouse has abided by the terms of the joint will,adiation will be necessary where a limited interest is received,and election necessary where no limited interest is obtained.

must

Wille

Secretary, South AfricanAssociation v Mostert thesupervisor has accepted some benefit under the will

quid pro quo

From a conveyancing perspective the provisions of section 21and regulation 50(2)(b) of the Deeds Registries Act 47 of 1937requires closer perusal.

In the case of massing and adiation, where a joint estate isinvolved, the surviving spouse does not have to join theexecutor in the passing of transfer of the massed property,provided proof is submitted that the surviving spouse hasadiated.

However, where massing and election has occurred, and theproperty forms an asset in the joint estate, the survivingspouse must join the executor in the passing of the transfer ofthe massed property and documentary evidence in the form ofan affidavit from the surviving spouse must be lodged to prove

the election of the surviving spouse Although the latter proofis not a specific requirement in terms of theAct, section 4(1)(a)sanctions the request for same.

In both instances; where the property forms an asset in a jointestate, the joint estate must be divested (see regulation50(2)(c)).

.

The Registrars held their annual conference during November

2007 and 52 resolutions were taken. These resolutions have

become operative from 2 January 2008 and are applicable to

all Deeds Registries.

What follows is merely those conference resolutions deemed

necessary to draw examiners and practitioners attention to

and which has an effect on the day to day practice of

conveyancing.

Given the fact that a death notice cannot be accepted as proof

of children born out of wedlock, it should also not be accepted

as proof that a person died leaving no valid will. Does

conference concur and if so, what proof should be required?

A death notice cannot serve as evidence of intestacy. Proof, in

the form of an affidavit from the executor/representative, must

be insisted upon. However, in the case of a transfer by

endorsement in terms of section 45 of Act No. 47 of 1937, a

regulation 49(1)(g) certificate from the Master will be

acceptable.

RCR 3/2007 - Proof of Intestacy

Resolution:

RCR 4/2007 - Sectional Title Mortgage Bonds

Resolution:

.

RCR 6/2007 - Registration of Usufruct over right to extend

Resolution:

Where a sectional title unit is subject to conditions, imposed in

favour of the Home Owners Association, restricting transfer,

etc. must the bond registered over such unit be made specially

subject to such conditions, in the light of RCR 5 of 1987, read

with RCR 22 of 2005?

Yes, sectional bonds must be made subject to restrictive

home-owners association conditions. RCR 13/2002 is hereby

confirmed

Can a usufruct be registered over a right to extend as provided

for in terms of section 25(9) ofAct No. 95 of 1986?According to

RCR 41/2003 and RCR 37/1996, and Act No. 95 of 1986 it is

possible to register a usufruct over an exclusive use area (this

amplifies the registration of a “right over a right” which the law

does not allow).Also, see RCR 44/2003.

No, Act No. 95 of 1986 does not provide for a usufruct to be

registered over a right of extension.

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RCR 7/2007 - Regulation 68(11)

Resolution:

RCR 12/2007 - Conditions inAntenuptialAgreements

Resolution:

Resolution:

RCR 15/2007 -Application of Section 68(1)

Resolution:

RCR 20/2007 - VAcopy already lodged

An authorized person/agent cannot make an oath on behalf of

his/her principal (see RCR 6.12/1999). What is the position

with an affidavit in terms of regulation 68(11) Act No. 47 of

1937, where the agent (conveyancer) acts in terms of a

general power of attorney on behalf of the Mortgagee (The

Bank)?

RCR 6.12/1999 must also be applied to applications and

affidavits in terms of regulation 68(11) of Act No. 47 of 1937. A

general power of attorney mandating an agent to make an

affidavit on behalf of his/her principal is contra bonis mores

and should not be allowed.

RCR 34/2006 states: the following clause is inserted in an

Antenuptial Contract: “The accrual system is to apply without

modification to their intended marriage, provided that should

either party be an unrehabilitated insolvent at the time of the

dissolution of the intended marriage then the said accrual

system shall not apply”.

Is the proviso legal and enforceable?

Such a proviso is not legal and to the disadvantage of future

creditors. The Matrimonial PropertyAct only allows that certain

assets can be excluded from the accrual system. See

1981 (2) SA831 (O).

In view of the comments made by the judge in

1950 (2) 195 CPD the above resolution should be

revisited.

Registrars of Deeds must register the contract. Should any

dispute arise as to the contents thereof, the parties concerned

may refer the matter to court for clarification. See

1950 2 195 CPD on pages 198 and 199. (RCR

34/2006 is hereby withdrawn).

Where a personal servitude has lapsed and the land

encumbered thereby is transferred, is it peremptory to request

an application in terms of section 68(1), or will the

documentary proof lodged as a supporting document suffice?

Section 68(1) must be complied with in all instances where a

personal servitude lapses for any reason.

Where application and affidavit is made for the issue of a

certified copy of a title deed, bond, etc. for which a VAcopy has

already been issued, must the application be made in terms of

regulation 68(7), or will an application in terms of regulation

68(1) be acceptable?

Vorster

v Steyn

ex parte

Wismer

ex parte

Wismer

Resolution:

RCR 34/2007 - CROSS-BORDER INSOLVENCY

Resolution:

RCR 42/2007 - Lapsing of Right of Extension

Resolution:

RCR 43/2007 - Non-disclosure of Period of Extension

Resolution:

RCR 48/2007 - Subdivision of Agricultural Land Act 70 of

1970

The application must be made in terms of regulation 68(1) and

not 68(7). RCR 26.1/1996 is hereby confirmed in respect of the

disclosure of the full facts.

A Foreign Court has issued a judgment to liquidate a company

that owns property in South Africa. A foreign trustee now

requests the registrar of deeds to note a liquidation order

against the company. Does the registrar of deeds have the

power to note such an order to enable a foreign trustee to deal

with company's assets?

The registrar of deeds must decline to note such an order,

unless it has been recognized by a South African Court. See

1999 (4) SA 216

(C).

Is it the duty of the registrar of deeds to check the right of

extension on transfer of a unit to determine if same has lapsed,

and if so, how must the 15B(3)-certificate be couched or must

section 68(1) be complied with, where same has lapsed?

No, it is not the duty of the registrar of deeds to check the right

of extension on transfer of a unit. It is the duty of the

conveyancer to determine whether or not the right of extension

has lapsed. If it has been determined that such right has

lapsed, then a section 68(1) application by the body corporate

must be lodged. The 15B(3) certificate must reflect that a right

of extension has been registered, but that such right has

lapsed.

What procedure must be followed where it is ascertained

subsequent to registration that the reservation of a right of

extension does not disclose a period of time in which the right

must be exercised?

A Notarial variation agreement entered into between the body

corporate and the developer, with the written consent of all

members of the body corporate as well as with the written

consent of the mortgagee of each unit in the scheme, failing

the agreement or the obtaining of all consents, an order of

court must be obtained.

Should a body corporate not be in existence, a section 4(1)(b)

application may be lodged where a right has been reserved,

from time to time, but no specific period has been stipulated in

the condition.

Where a sectional title register is opened on land

encompassing the word “farm” in the property description

must CRC 6 of 2002 be applied in that the consent of the

Minister must be obtained, alternatively proof that such land is

not deemed to be agricultural land?

Deutsche Bank AG v Moser and Another

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7

Resolution:

RCR 49/2007 - Opening of Sectional Title register and Act

21 of 1940

Resolution:

e

*RCR 52/2007 - Couching of Waiver of Preference in

Sectional Mortgage Bond

Yes, CRC 6 of 2002 is applicable.

Where a sectional title register is opened on land within 95

metres from a main or building restriction road, must the

provisions of section 11(4) of Act No. 21 of 1940 be applied as

per the uniform practice applicable to conventional transfers of

land to two or more persons?

Yes, s ction 11(4) ofAct No. 21 of 1940 must be adhered to.

Uncertainty at present prevails as to how the waiver of

preference of a real right, such as a usufruct, must be couched

in a sectional bond.

The usufructuary must either personally or in terms of an agent

appear before the conveyancer. The bond must be made

subject to the usufruct and the waiver must be contained in the

bond and not the annexure.

Readers are advised to obtain a full set of the resolutions from

their law society or from the Deeds Registry.

Resolution:

Long DistanceRunner

Susan Hurter is an Assistant Registrar of Deeds at the Pretoria Deeds Registry. She is a regular participant in long distancerunning events. In 2007 she participated in five 100-miler ultra marathons. She won all her 100-miler marathons and in theWashie 100 miler she came 9th overall.

Those of us who wonder why Susan does this - It is because she can!

*See also the article by Marie Grovè on page 3 of this issue - Editor

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INTRODUCTION

THE LEGAL RECOGNITION OF CUSTOMARY

MARRIAGES

Which marriages are recognized?

'customary marriage'

'customary law'

The Recognition of Customary Marriages Act, 120 of 1998

came into operation on 15 November 2000, and gives full legal

recognition to customary marriages for the first time in the

history of SouthAfrica.

Prior to the commencement of the Act, customary marriages,

(better known as customary unions) did not enjoy the same

status as civil marriages concluded in terms of the Marriage

Act, 25 of 1961. Customary unions received partial recognition

for purposes of certain legislation and common law, if they

were registered under the BlackAdministrationAct 38 of 1927.

Partners in customary unions were treated as spouses for the

purpose of workmen's compension, income tax, and

maintenance.

Customary unions, as codified in the Black Administration Act,

were also institutions in which women suffered unequal status

and rights, to men. The Black Administration Act treated all

women, regardless of age, capacity and marital status as

minors. Women were not allowed to own property, sue or be

sued in court, or exercise the power of contract. Women could

not negotiate or terminate their marriages, nor could they have

legal custody of their children.

The unequal status of customary marriages reflected the

general approach of the pre-democratic governments to

customary law in South Africa. It was viewed as a system of

law that was 'inferior' to common law and legislation. Its

acceptance as 'law' was based on a concept of 'repugnancy'

defined by Western, Colonial and Christian values. For

example, customary unions were not fully recognized

because, 'potentially polygamous', they were 'against good

morals'

According to section 1 of the Act is

defined as a marriage concluded in accordance with

customary law, while

From the above definitions it is clear that customary marriages

concluded in terms of Hindu and Muslim rites are not affected

by the Act, and remain invalid unless they were solemnized in

terms of the MarriageAct, 25 of 1961 or the Civil UnionsAct, 17

of 2006.

,

is defined as the

customs and usages traditionally observed among the

indigenous African peoples of South Africa and which form

part of the culture of those peoples.

1 2

3

4

5

Customary marriages entered into before 15 November

2000

Customary marriages entered into after 15 November

2000

Subsequent civil marriages

Section 2(1) of the Act recognizes customary marriages

entered into before the commencement of the Act (15

November 2000), provided that such marriages were validly

concluded in terms of customary law and existed at the

commencement of theAct.

According to section 2(3) if a person was a spouse in more

than one validly concluded customary marriage as at date of

the commencement of the Act, all the marriages are

recognized as marriages. Polygamous marriages are thus

given legal recognition.

Section 2(2) recognizes customary marriages entered into

after the commencement of the Act (15 November 2000),

provided the marriage complies with the requirements of the

Act. This also includes polygamous marriages entered in

terms of theAct [section 2(4)].

The general requirements for a valid customary marriage

entered into after the commencement of the Act are as

follows:

• The prospective spouses must both be above the age of

18 years;

• They must both consent to be married to each other

under customary law.

• The marriage must be negotiated and entered into or

celebrated in accordance with customary law.

• If either of the prospective spouses is a minor, both his or

her parents, or if he or she has no parents, his or her legal

guardian, must consent to the marriage. If there is no

legal guardian, theAct provides for substitute consent.

• The parties must not be prohibited from marriage

because of relationship by blood or affinity as determined

by customary law.

• In addition to the above requirements, a husband in a

customary marriage who wishes to enter into a further

customary marriage with another woman after the

commencement of the Act, must comply with a further

requirement set out in section 7(6) of the Act, namely an

application to the Court to approve a written contract

which will regulate the future matrimonial property system

of his marriages.

A man and a woman between whom a customary marriage

subsists may marry each other in terms of the MarriageAct, 25

6

7

9

The Recognition of CustomaryMarriages Act, 120 of 1998 By: Margaret Meyer

Masters’ Training PRETORIA

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of 1961, if neither of them is a spouse in a subsisting customary

marriage with any other person.

A spouse in a customary marriage may, however, not marry

another person in terms of civil law during the subsistence of

such customary marriage.

Registration provides certainty, and consequently section 4 of

the Act provides that all customary marriages must be

registered.

Customary marriages entered into before the commencement

of the Act, which are not already registered in terms of any

other law, had to be registered within a period of 12 months

after the commencement of the Act, or within such a period as

the Minister may from time to time prescribe by notice in the

Gazette.

Marriages entered into after the commencement of the Act

must be registered within a period of three months after the

conclusion of the marriage or within such period as the Minister

may from time to time prescribe by notice in the Gazette.

Although registration of a customary marriage is peremptory in

terms of the Act, section 4(9) provides that failure to register a

customary marriage, does not affect the validity of that

marriage.

Proof of existence of a customary marriage that has not been

registered can pose a problem to the Master when an estate is

reported and it is suggested that the Master is justified in

insisting on proof of registration of the marriage for estate

purposes.

Section 4(8) provides that

Section 4(2) specifically allows 'either spouse' to register a

marriage on behalf of both spouses. This provision read with

section 4(5)(b) makes it possible for a surviving spouse in a

customary marriage, whose marriage is not registered at the

time of death of the other spouse, to register the marriage after

the death of the other spouse in order to satisfy the Master's

requirement of proof of registration.

During the process of developing the law, the women's rights

lobby argued strongly for a provision that would allow wives to

register marriages without their husbands. The purpose was to

ensure that spouses who are reluctant to register their

marriage do not frustrate the other spouse or the purpose of

the Act. Because a customary marriage is a process that

occurs over time and may involve more than a ceremony, it is

8

9

10

REGISTRATION OF CUSTOMARY MARRIAGES

Duty to register

Who may apply to register a marriage?

“a certificate of registration of a

customary marriage issued under this section or any other law

providing for the registration of customary marriages

constitutes proof of the existence of the customary

marriage and of the particulars contained in the certificate.”

prima facie

easy to challenge its existence. Women, in particular, have the

most to lose if the customary marriage is not registered. Men

have been able to challenge customary marriages in order to

avoid maintaining former spouses or the wives dependent on

the estates they have inherited as male heirs.

Essentially, the Act accepts that it is not always in the interests

of both spouses to register their marriage.

The Act also allows 'interested parties to apply to register a

customary marriage on behalf of the spouses.

An interested party may be a friend, a relative, a traditional

leader or one of the people who participated in the marriage

negotiations between the two families. He or she could also be

one of the husband's other wives or the children of the

marriage or of the husband from another marriage. Also

relevant may be persons with an interest in communal land

under the control of the husband, business partners and fellow

trustees. It appears to be left within the discretion of the

registering officer as to who constitutes an interested party. As

long as the party seeking to register the marriage satisfies the

registering office that he or she has 'a sufficient interest in the

matter', they may apply.

Section 4(2) of the Act provides that the applicants must

furnish the registering officer with the prescribed information

and any additional information which the registering officer

may require in order to satisfy himself or herself as to the

existence of the marriage.

The Minister of Justice, in consultation with the Minister of

Home Affairs, is responsible for creating the registration form

and for identifying the necessary information the spouse or

couple must provide to the registering officer.

According to information obtained from the Pretoria Regional

Office of the Department of Home Affairs the following

information is required to register a customary marriage after

one of the spouses is deceased:

• The family agreement, which contains the date of

the marriage, the amount and any of the agreed

information, duly signed by all the parties concerned.

• If the agreement and the marriage was concluded in the

rural area, the written confirmation from the Tribal Chief

or King from that area to the effect that the marriage took

place in that area.

• The death certificate, or a certified copy thereof, in

respect of the deceased spouse whose spouse is

reported.

• One representative each of the bride and the groom's

family must accompany the surviving spouse to the

nearest office of the Department of Home Affairs. All the

parties must produce their identity documents during the

registration process.

11

12

13

Requirements to register a customary marriage

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• A fee of R10,00 is payable in respect of the application for

registration of the customary marriage.

In terms of section 6 of the Act, a wife in a customary marriage

is placed on an equal footing with that of her husband as far as

her status and capacity is concerned, subject, however, to the

matrimonial property system governing the marriage. This

means that she may now acquire assets and dispose of them,

enter into contracts and litigate, on a basis of equality with her

husband, in addition to any rights and powers that she might

have at customary law.

The consequences of a customary marriage differ according to

whether the marriage was entered into before or after the

commencement of the Act. For marriages entered into before

the commencement of the Act, the proprietary consequences

continue to be governed by customary law, unless an

application is made to change the property regime in terms of

section 10 of theAct.

For marriages entered into after the commencement of the Act

the proprietary consequences will depend on whether the

marriage is monogamous or polygamous.

Section 7(1) provides that the proprietary consequences of a

customary marriage entered into before the commencement

of the Act will continue to be governed by customary law. The

question, however, is which customary law?

The concepts of “in community or out of community of

property” are unknown in customary law.

For purposes of the administration of estates, the Master will

regard customary marriages entered into before the

commencement of the Act as being out of community of

property.

The Act allows spouses married under customary law prior to

the Act to apply to a court to change their marital property

regime. Section 7(4) requires the application for change to be

made by both the husband and the wife. The court will grant the

application if:

(a) there are 'sound' reasons for the change;

(b) written notice is given to all creditors owed amounts of over

R500,00;

(c) no one will be prejudiced by the change.

If the husband has other spouses in a polygamous marriage,

then they must be joined in the proceedings to ensure that their

rights are protected. Other parties who have interests in the

marital property must also be joined, including the dependants

of the husband and anyone else who will be affected by the

change.

STATUSAND CAPACITY OF SPOUSES

PROPRIETARY CONSEQUENCES OF CUSTOMARY

MARRIAGES

Customary marriages in existence before the

commencement of theAct

14

Customary marriages entered into after the

commencement of theAct

Monogamous customary marriages

Polygamous customary marriages

DISSOLUTION OF CUSTOMARY MARRIAGES

In terms of section 7(2) of the Act the marriage property

arrangement of a monogamous customary marriage is that of

a marriage in community of property and of profit and loss.

Monogamous customary marriages concluded after the

commencement of the Act thus have the same consequences

as a civil marriage.

The spouses to a monogamous customary marriage can

marry out of community of property, provided they enter into an

antenuptial contract.

Where the marriage is in community of property, it must be

noted that the provisions of Chapter III and sections 18, 19, 20

and 24 of Chapter IV of the Matrimonial Property Act, 88 of

1984, apply to the customary marriage.

A husband in a customary marriage who wishes to enter into a

further customary marriage with another woman after the

commencement of the Act, must comply with the requirement

of section 7(6) of the Act, in addition to the general

requirements set out in section 3 of the Act. He must make an

application to court to approve a written contract which will

regulate the future matrimonial property system of his existing

marriage and the prospective one.

In view of the fact that the Act now provides for polygamous

marriages in respect of indigenous African people of South

Africa, the Master should take cognizance of this fact and

ensure that the rights of all the spouses (where there is more

than one marriage) is protected in the course of the

administration of the estate.

The Master will call for the written contract which regulates the

deceased's marriages, duly approved by the court, if the death

notice indicates the following:

• the deceased was married under customary law;

• the marriage is polygamous;

• the second or subsequent marriage was concluded after

the commencement of theAct (15 November 2000).

In terms of section 8(1) of the Act a customary marriage may

only be dissolved by a court by a decree of divorce, on the

ground of the irretrievable breakdown of the marriage.

As with all other estates administered by the Master, a copy of

the divorce order and any settlement between the parties,

which has been made an order of court, must be called for in

appropriate circumstances, e.g. to establish whether the

deceased estate is liable for future maintenance.

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THE RELATIONSHIP BETWEEN CIVIL AND CUSTOMARY

MARRIAGESAND THEIR IMPACT ON ESTATES

Subsequent civil marriage by the spouse of a subsisting

customary union to a third person: Situation before 2

December 198 -Areas outside the Transkei

Bhe

Subsequent civil marriage by the spouse of a subsisting

customary union to a third person: Situation after 2

December 1988 until 15 November 2000

The practice of combining customary with civil emonies is

common in South Africa, and many variations are possible.

The spouses may celebrate a customary marriage and, on the

same day, or a short while later, have it solemnized again in a

civil registry office. The rites may also be reversed, when a civil

marriage is followed by a traditional wedding. Dual marriages

by the same spouses entered into prior to the Recognition of

Customary Marriages Act, 120 of 1998 created few legal

problems, because the customary union was not recognized

and the civil marriage was simply allowed to prevail.

Where, however, a spouse (normally the husband) purported

to marry a third person by different rights, the situation is more

complicated. A migrant worker, for instance, might marry one

wife in the country according to customary law, and another in

the city according to civil rites. The husband, thinking in terms

of his customary right to take many wives, might have been

unaware of the legal implications of his actions, or a more

calculating man, however might have deliberately kept his

wives in the dark.

Because the Recognition of Customary Marriages Act is not

retrospective in effect, marriages contracted prior to the Act

are still governed by rules that applied before it came into force

on 15 November 2000. These rules can be divided into four (4)

categories.

Only civil marriages were deemed proper marriages, and

consequently where a husband in a subsisting customary

union were to marry a third person or one of his existing

polygamous wives by civil rites, the civil marriage

automatically superseded and extinguished the prior

customary union(s). These consequences caused great

hardship for the 'discarded' customary wife and children.

Section 22(7) of the Black Administration Act, 38 of 1927,

however, provided some measure of protection to the

discarded family when the husband died. For purposes of

succession, the status of the widow and children of the civil

marriage were deemed to be equivalent of their customary-law

counterparts. By implication, the preferential status given the

civil-law wife and children was lost and they ranked equally

with the prior discarded wife (or wives) and their children.

If the Master's Office or Service Point is confronted with a

situation as set out above after the decision , it should be

noted that both the discarded wife and the civil-law wife will be

deemed spouses of the deceased for purposes of intestate

succession.

cer

15

16

17

Areas outside the Transkei

Thembisile

andAnother v Thembisile andAnother

Dual marriages in Transkei

The position after 15 November 2000

In 1988 the Marriage and Matrimonial Property Law

Amendment Act 3 of 1988, which came into operation on 2

December 1988 provided that, although partners to a

customary union could marry one another again by civil rites,

a spouse could not validly marry a third person by civil rites

during the subsistence of the customary union. Should a

spouse in a customary union purport to enter into a civil

marriage without first dissolving the customary union, the civil

marriage will be invalid. This was confirmed in

.

When confronted with a situation as set out above, the Master

or Service Point would have to determine which of the

marriages (customary or civil) was invalid at the date of death

of the deceased. If the deceased entered into a customary

union (first Marriage) with wife A and then into a civil marriage

with wife B, without first dissolving the customary union, then

the civil marriage is invalid and the customary union is the only

valid marriage. If the customary marriage was dissolved

before the civil marriage, then the civil marriage will be the

only valid marriage.

The 1978 Transkei Marriage Act, 21 of 1978 allowed the

husband of a subsisting civil marriage to contract additional

customary marriages, provided that the civil marriage was out

of community of property. Likewise, a husband in a customary

union, could also during the subsistence of such customary

union validly contract a civil marriage with a third person,

provided the civil marriage was out of community of property.

Thus, when the Master or Service Point is confronted with

dual marriages concluded in terms of the Transkei Marriage

Act, both the civil and customary law spouses would be

deemed spouses for purposes of intestate succession.

The Recognition of Customary Marriages Act, 120 of 1998

came into operation on 15 November 2000 and revoked

section 22(1) to (5) of the Black Administration Act, and the

provision in the Transkei Marriage Act that permitted dual

marriages.

Section 2(1) of the Recognition of Customary Marriages Act

determines that a marriage which is a valid marriage at

customary law and existing at the commencement of the Act,

is for all purposes recognized as a valid marriage.

Section 10(1) provides that a man and a woman between

whom a customary marriage subsists are competent to

contract a civil marriage with each other if neither of them is a

spouse in a subsisting customary marriage with any other

person.

Section 10(4) provides that despite subsection (1), no spouse

of a civil marriage is, during the subsistence of such marriage,

18

19

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competent to enter into any other marriage, albeit civil or

customary.

The Act thus confirms that spouses married by customary

union may not enter into a civil marriage if either of them is a

spouse in a subsisting customary marriage with any other

person. The same holds for spouses married under civil rites.

They may not enter into a customary union.

Editor's Note:

The Department of Home Affairs who is responsible for the

registration of customary marriages has ceased to register

marriages subsequent to the dates referred to in section 4 and

thus the matter has to be referred to court for verification of the

marriage should the marriage not have been registered

timeously. This is causing undue hardship for the parties who

have entered into customary marriages.

Foot Notes:

1

2

3

4

5

6

Compensation for Occupational Injuries and DiseasesAct

130 of 1993, s 1.

The Income TaxAct 58 of 1962, s 1.

MaintenanceAct 23 of 1962, s 1.

The BlackAdministrationAct, 38 of 1927, s 11(3)(b).

Justice College, Customary Marriages Bench Book,

February 2004, par. 2.1.

Section 3.

13

7

8

9

10

11

12

13

14

15

16

17

18

19

Refer to sections 3(b), 4(a) & 4(c).

Section 10(1).

Section 3(2).

The Minister of Home Affairs extended the period to

November 2002, but despite the expiry period, Home

Affairs has permitted registration to continue.

Justice College, Customary Marriages Bench Book,

February 2004, par. 4.5.

Section 5(a).

Justice College, Customary Marriages Bench Book,

February 2004, par. 4.5.

Section 7(4)(b).

Benett (2004) 236.

1951 (1) SA377 (A).

,

2005 (1) SA580 (CC) handed down on 15 October 2004.

2002 (2) SA209 (T).

In 2007 (3) SA 403

(E) it was held that the failure of parties to register the

customary marriage in terms of the Transkei Marriage

Act does not affect the validity thereof.

Customary Law in SouthAfrica

Nkambula v Linda

Bhe and Others v Magistrate Khayelitsha and Others

Khambule v The Master and Others

Section 9(1)(i) of Act 40 of 1949 reads as follows:

Section 9(1):

(my underlining).

The Act specifically requires that the surviving or divorcedspouse should acquire “sole ownership” in the “whole” or “anyportion” of a property, registered in the name of his or herspouse. The word “any portion” is used and not “any share”,which indicates that when reference is made to “portion” it willbe a “defined” portion and not a “share” in the property.

“No duty shall be payable in respect of theacquisition of property by - ……. (i) the surviving or divorcedspouse who acquires the

registered in the name of his or herdeceased or divorced spouse where that property or portion istransferred to that surviving or divorced spouse as a result ofthe death of his or her spouse or dissolution of their marriage orunion”

sole ownership in the whole or anyportion of property

By way of an example, should a deceased/divorced spousebe the registered owner of an undivided share in the property,i.e. co-owner together with a third party (not his/her spouse),and the surviving/divorced spouse, who is entitled to theproperty, receives transfer of the share of the other spouse,the transaction will not be exempt from transfer duty in termsof section 9(1)(i). The spouse does not receive transfer of the“whole” or a ”portion” of the property and does not acquire“sole ownership”, but merely an undivided share. Strictlyinterpreted transfer duty should be payable in respect of suchtransactions.

Is this an oversight by the legislator?

your views please! - Editor

Exemption Of Transfer Duty: Section 9(1)(i)Of The Transfer Duty Act 40 Of 1949 By Marie Grové

Deeds Training Pretoria

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14

Reflecting the Past 40 Years

DEEDS REGISTRATION COURSE LEVEL VI 2001

From Left to Right:

1 Row

2 Row:

3 Row:

4 Row:

st

nd

rd

th

: MP Moya, CCE Knoesen (Lecturer),

AS West (Lecturer), JF Scheepers

(Director: Training), JE Grobler (Lecturer),

HF Gerryts (Lecturer), A Lombaard

(Lecturer).

HR Nkambule, VM Tango, D Hoko,

MM Mokale, RT Mamabolo

NS Lefafa, I de Jongh, NV Makete,

WL Motlhabane, PJH Gwangwa, GA

Botha

Avan Rooyen, H Nauschutz,

LCoetzer, S Mallick, M van Niekerk

TRANSVAAL TOWNSHIPS BOARD - 1983

From Left to Right:

Front:

Behind:

Messrs. LW Pentz (Vice-chairperson); JI Le Roux Van Niekerk (Chairperson); PF Bekker (Secretary)

Messrs. H J de Beer (Registrar of Mining Titles); NC O'Shaughnessy (Representative of Surveyor General)

CW Erasmus (Representative of Roads); GE Verster (Representative of Community Development);

MPAuret (Representative of Local Government); WG James (Representative of Roads);

JJGB Knoetze (Member); DJLKamfer (Member); WF Olivier (Registrar of Rand Townships);

DG Raath (Assistant Head of Planning) and EP de Beer (Representative of the Prime Minister's Office

Section Physical Planning) Insert: Mr. DP Wilcocks (Member); Mr.APLKotze (Member) (Pretoria).

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15

COURSE FOR SECTIONAL TITLES ACT - 1973

From Left to Right:

1 Row:

2 Row:

3 Row:

4 Row

st

nd

rd

th

SAWalters; DJAVisser; Mrs. E Grobler; JLE Smit (Chief Registrar of Deeds); Miss. M van Ronge;

MS Kruger (Course Leader); HR Gibbs

L Kriel; CJ Wolfaardt; CAPienaar; BD Davidson; RN Weaving; JH Chamberlain; WFHC Swanepoel

DLW Westpfahl; NT Duvenage; C Streak; CH Myburgh; W Obbes (Assistant Registrar Windhoek);AN Wilson

: PJ van Rensburg; P Lategan; CLWabeke; RR Kretzmann; LHeunis

TRANSVAAL TOWNSHIPS BOARD - 1966

From Left to Right:

Front:

Behind:

Mr. H Preiss, member; Mr. ATW de Klerk, member; Mr. CP Joubert (Registrar of Mining Titles), member; Mr. LJ Vosloo

(Registrar of Deeds); member; Mr. RBJ Gouws (Representative of the Department of Local Management), member;

Mr. JI Le Roux Van Niekerk, (Chairperson); Mr. H Matthee, secretary; Mr. LW Pentz (Surveyor General), member; Mr.

JSM Guldenpfennig, member.

Mr. SG Cronje (Representative of the Department of Roads), member; Mr. DG Raath, Plannner of the Townships

Board; Mr. DG Cruse, member; Mr. PPC van der Hoven, Planner of the Townships Board

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Deeds Training Spreads its WingsBy: L J Vosloo

Deeds Registry, CAPE TOWN

16

The Sub-Directorate: Deeds Training periodically conducts topic courses for Deeds Office officials to keep their

knowledge of the myriad of legislation, procedures and practices ship shape.

Often these courses are presented at the various locations of the Deeds Offices by the lecturers from Deeds Training.

The photographs were taken at one such course and show Deeds Training lecturer Wiseman Bhuqa explaining the

intricacies of Customary Marriages to Deeds Office examiners from the Cape Town deeds registry.

Wiseman Bhuqua presenting lectures.Class attendants

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By: Roelie RossouwConveyancer Rossouws Attorneys, BLOEMFONTEIN

Beneficiary's Disposal in a Trust andTransfer Duty Implications

RELEVANT PROVISIONS OF THE TRANSFER DUTYACT

The following provisions of the Transfer Duty Act 40 of 1949(“Transfer DutyAct”) are relevant:

The following definitions contained in section 1 of the TransferDutyAct:

'property'

any real right in land

held by a discretionary trust

a consequence of or attendant upon the conclusion of anyagreement for consideration with regard to property helby that trust;accompanied by the substitution or variation of that trust'sloan creditors, or by the substitution or addition of anymortgage bond or mortgaged bond creditor; oraccompanied by the change of any trustee of that trust;

in relation to a discretionary trust, the substitution oraddition of one or more beneficiaries with a contingentright to any property of that trust, which constitutesresidential property or shares

means land in the Republic and any fixturesthereon, and includes -

(a) but excluding any right under amortgage bond or a lease or property other than a leasereferred to in paragraph (b) or (c);

(b) ……..(c) ……..(d) a share or member's interest in a residential property

company; or(e) a share or member's interest in a company which is a

holding company (as defined in the Companies Act,1973 (Act 61 of 1973) or as defined in the CloseCorporations Act, 1984 (Act 69 of 1984), as the casemay be), if that company and all of its subsidiarycompanies (as defined in the Companies Act, 1973, orClose Corporations Act, 1984), would be a residentialproperty company if all such companies were regardedas a single entity;

(f) a contingent right to any residential property or share ormember's interest, contemplated in paragraph (d) or (e),

(other than a special trustas defined in section 1 of the Income Tax Act, 1962 (Act58 of 1962)), the acquisition of which is -

(i)d

(ii)

(iii)'residential property' means any dwelling house, holidayhome, apartment or similar abode, improved orunimproved land zoned for residential use in the republic(including any real right thereto), other than -

(a) an apartment complex, hotel, guesthouse or similarstructure consisting of five or more units held by a personwhich has been used for renting to five or more persons,who are not connected persons, as defined in the IncomeTaxAct, 1962 (Act 58 of 1962), in relation to that person; or

(b) any 'fixed property' of a 'vendor' forming part of an'enterprise” all as defined in section 1 of the Value-AddedTaxAct, 1991 (Act 89 of 1991);

'transaction' means -(a) …..(b) …..(c)

or member's interestcontemplated in paragraph (d) or (e) of the definition ofproperty' or a contingent right contemplated in paragraph(f) of that definition;

Section 2 which deals with the imposition of transfer duty inthe following manner:

The following definitions contained in section 1 of the TrustProperty ControlAct are relevant:

It is clear from the definitions of 'property' and 'transaction'contained in the Transfer Duty Act that (for the purpose ofdetermining whether the disposal of a beneficiary's interest ina trust will attract transfer duty) it is imperative that one shouldbe able to differentiate between a “discretionary trust” and atrust which is not a discretionary trust for purposes of the act.

The Transfer Duty Act uses the term “discretionary trust”without defining it. (For the purpose of this memorandum I willaccept that the “discretionary trust” to which the act refers isthe one defined by PAOlivier 'Trustreg en Praktyk' on p 114 asone where the trustees have a discretion as to which of thebeneficiaries will eventually receive the income and/or capitalof the trust. The rights of the beneficiaries are thereforecontingent and not vested).

trust' means any trust consisting of cash or other assets whichare administered and controlled by a person acting in afiduciary capacity, where such person is appointed undera deed of trust or by agreement or under the will of adeceased person.

(1) Subject to the provisions of section 9,for the benefit of the National Revenue Fund a transferduty (hereinafter referred to

on or after thedate of commencement of thisAct

'trust' means the arrangement through which the ownership inproperty of one person is by virtue of a trust instrument madeover or bequeathed -

(a) to another person, the trustee, in whole or in part, to beadministered or disposed of according to the provisionsof the trustee instrument for the benefit of the person orclass of persons designated in the trust instrument or forthe achievement of the object stated in the trustinstrument; or

(b) to the beneficiaries designated in the trust instrument,which property is placed under the control of anotherperson, the trustee, to be administered or disposed ofaccording to the provisions of the trust instrument for thebenefit of the person or class of persons designated in thetrust instrument or for the achievement of the objectstated in the trust instrument, but does not include thecase where the property of another is to be administeredby any person as executor, tutor or curator in terms of theprovisions of the Administration of Estates Act, 1965 (Act66 of 1965);

there shall be levied

as the duty on the value ofany property …. acquired by any person

by way of a transactionor in any other manner…

RELEVANT PROVISIONS OF THE TRUST PROPERTYCONTROL ACT 57 OF 1988

CATEGORIES OF TRUSTS

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The Trust Property Control Act also does not differentiatebetween a “discretionary trust” and a trust which is not adiscretionary trust. (It does, however, differentiate in itsdefinition of “trust” between:a trust where ownership of the trust assets vest in the trusteesin paragraph - (a) of the definition and;a trust where ownership of the trust assets vest in thebeneficiary/ies - in paragraph (b) of the definition.

Cameron, de Waal and Wunsh Honoré's SouthAfrican Law ofTrusts' (Fifth Edition) p 9 refers to 3.3.1 as a'ownership trust' and to 3.3.2 as a 'bewind trust'.

P A Olivier 'Trustreg en Praktyk' p 111 refers to 3.3.1 as a“privaat trust” and says the following of that category of trust:

b On p 114Olivier defines a 'discretionary trust as follows:

It would thus appear as if Olivier acknowledgesthat one does find another form of the “privaat trust” whereownership of the trust assets still vest in the trustees even ifthey do not have a discretion as to which of the beneficiarieswill eventually receive the income and/or capital.

P A Olivier 'Trustreg en Praktyk' p 114 says the followingregarding the practical use of a 'bewind trust':

I am of the opinion that Oliver's “OmegaTrust” would only be a 'bewind trust' if the office building isregistered in the name of the beneficiaries. If, as is much morecommon, the office building is registered in the name of thetrustees the trust is an 'ownership trust' notwithstanding thefact that the beneficiaries have a vested right as regards theincome and capital of the trust when either income and capitalis distributed by the trustees. I base my opinion on the fact thatthe trustees, before they decided to distribute the capital of thetrust, may (if they are entitled to do so in terms of the provisionsof the trust deed) decide to sell the office building and buyanother in the place thereof. The beneficiaries clearly neverhad a real right in either of the office buildings whilst thebuildings are registered in the name of the trustees. Only whenthe trustees decide to transfer the office building to thebeneficiaries do they acquire a real right. This may neverhappen as the trustees may decide to sell and convert theoffice building into cash and then to distribute the cash to thebeneficiaries.

I also find support for my opinion in:

(a) 2003 (5) SA 674(T) where it was said that “Die trustgoed word normaalweg

aan trustees in eiendomsreg oorgedra ('n uitsonderingis die geval van 'n bewind-trust).”

(b)2002 (4) SA 606 (N) where it was

decided that the trust in question although it only had onebeneficiary was “a trust property so called, where the

“Dié soort trust is eintlik die werklike uitvloeisel van die trust inregstegniese sin met die trustee as eienaar van die trustgoeden met bepaalde of bepaalbare egunstigdes.”

“'nDiskressionêre trust is 'n privaat trust met die besonderekenmerk dat die begunstigdes wat uiteindelik deur dieinkomste en/of kapitaal van die trust bevoordeel gaan wordvolgens die diskresie van òf die trustees òf 'n begunstigdebepaal moet word. Dis … 'n besondere verskynsel van dieprivaat trust.”

“Omdat diebewindtrust wel erkenning geniet, is dit bruikbaar in die vormvan 'n beleggingstrust wat ook 'n vorm van 'n besigheidstrustis. 'n Voorbeeld hiervan kan gevind word waar die lede vanbyvoorbeeld 'n prokureursfirma hulle eie gebou oprig. Ditgeskied in die naam van die Omega Trust. Die vennote of hullefamilietrusts is die begunstigdes en die kapitaal en inkomsteen verliese van d ie Omega Trus t ves t i g i n d i ebegunstigdes.”

Coetzee v Peet Smith Trust en andere

Commissioner, South African Revenue Service v DyefinTextiles (Pty) Ltd

assets of the trust vested in the trustees, as opposed by a'bewind' trust,

The trust was a validand binding one” (my underlining).

(c) 1999 (3)SA 517 (BH) where it was held as regards a trust deedwith only one beneficiary that “there were no 'inherentambiguities' in the affected deeds of transfer. No factshad been placed before the Court relating to a bewindtrust, except the legal principles relating thereto. Itappeared from the affected deeds of transfer that the

. What was involved was an ordinary trustin terms whereof the trustee and not the beneficiary hadthe dominium of the land” (my underlining ”.

As regards the 'ownership trust' I am thus of the opinion thatthe trust may be:a discretionary trust where the trustees have a discretion as towhich of the beneficiaries to benefit when income or capital isdistributed (I will refer to this category of trust as a'discretionary ownership trust') or;One where the founder has given the beneficiaries fixed (orvested) rights. In the trust income and capital but where thetrustees remain owners of the trust assets until they decide todistribute it to the beneficiaries (I will refer to this category oftrust as a 'non-discretionary ownership trust').

Although the said learned writers refer to and discuss manycategories of trust (e.g., as opposed totestamentary trusts, trust in the strict sense as opposed totrusts in the wide sense, family trust as opposed to businesstrusts, etc.), I am of the opinion that, for the purpose ofdetermining the transfer duty implications when abeneficiary's 'interest' in a trust is disposed of, one may acceptthat all trusts will fall into one of the following categories:

the 'bewind trust';

the 'discretionary ownership trust' and

the 'non-discretionary ownership trust'.(Kindly note that this memorandum does not deal with a'special trusts' as defined in section 1 of the Income Tax Act,1962 (Act 58 of 1962)).

Bewind Trusts:If the trust in question is a bewind trust the transfer dutyimplications when a beneficiary's 'interest' in a trust isdisposed of are easy to determine. The beneficiary thusdisposing is owner (or co-owner) of the immovable propertyand therefore has 'a real right in land' which, in terms of thedefinition contained in section 1 of the Transfer Duty Act, is'property' and which, when disposed of, will attract transferduty regardless of whether it is 'residential property' asdefined or not.

Discretionary ownership trusts:The position as regards the disposal of a contingent right in a'discretionary ownership trust' is provided for in the TransferDuty act. 'Transaction' in relation to a discretionary trust, is insection 1 of the Transfer Duty Act, defined as “the substitutionor addition of one or more beneficiaries with a contingent rightto any property of that trust, which constitutes residentialproperty ……..”. In terms of the definitions of 'residentialproperty' and 'transaction' contained in the Transfer Duty Acttransfer duty (read with section 2 of the Act), transfer duty will

where the founder made a gift or bequestdirectly to a beneficiary but vested the control of theassets in a trustee or administrator.

dominium of the Bafokeng land vested in the variousgovernment officials whose names appeared thereon intrust for the tribe

)

Bafokeng Tribe v Impala Platinum Ltd and others

inter vivos

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ownership trust' is a personal right and not a real right in landbecause:it is not enforceable against third parties. Should thetrustees, for instance, pass a mortgage bond over the trust'sproperty to secure the repayment of money borrowed by thetrustees, the mortgage would acquire a real right and thebeneficiaries would not be able to enforce their “vested right”against the mortgagee.

It is not registrable in a Deeds Registry2006 (3) SA 342 (SCA) the

following was held as regards a real right in land: “Such a rightis in principle registrable in a Deeds Registry because itconstitutes a 'burden on the land' by reducing the owner's rightof ownership of the land and binds successors in title” and in

1992 (1) SA 879 (A) it was held that “the right to extend” was areal right in land which therefore was, in principle, capable ofregistration.)

It is clear that the use of the word “discretionary trust” in thedefinitions of 'property' and 'transaction' in section 1 of theTransfer Duty Act was an unfortunate one and createsconfusion. I would appreciate the viewpoint of otherpractitioners.

bona fide

(In Dlamini andanother v Joosten and others

Erlax Properties (Pty) Ltd v Registrar of Deeds and others

CONCLUSION

thus be payable if the trust in question is a 'discretionaryownership trust' where the trustees of the trust (in theircapacities as trustees) are the owners of 'residential property'as defined and where beneficiaries are substituted or added insuch a manner that the new beneficiaries acquire a contingentright to any residential property, the acquisition of which is-a consequence of or attendant upon the conclusion of anyagreement for consideration with regard to property held bythat trust; accompanied by the substitution or variation of thattrust's loan creditors, or by the substitution or addition of anymortgage bond or mortgage bond creditor; or accompaniedby the change of any trustee of that trust; 'Non-discretionaryownership trusts’ The position as regards the disposal by abeneficiary of its interests in a 'non-discretionary ownershiptrust' is not so clear. My opinion as regards this category oftrust is as follows: The beneficiary is not the owner of the trustassets but has a vested right (as opposed to a contingentright) regarding any income or capital which the trustees maydecide to distribute. If a beneficiary of such a trust disposes ofits rights as beneficiary the interest disposed of is neither a“real right in land” (see paragraph 4 of this memorandum) noris it a “contingent right in a discretionary trust” and thereforedoes not constitute “property” as defined in section 1 of theTransfer DutyAct.

It would thus appear (incongruent as it may seem) as if thedisposal of a beneficiary's interest in a 'non-discretionaryownership trust' will not attract transfer duty.

The “vested right” of the beneficiary of a 'non-discretionary

REAL RIGHTS IN LAND

By: L J VoslooDeeds Registry, CAPE TOWN

Sales from Estates: Section 18(3) Act 66 of 1965

There has been an ongoing debate as to whether the Master ofthe High Court needs to consent to sales of immovableproperty from a “section 18(3)-estate”, and what proof theDeeds Office requires to ensure that the estate does notexceed the present limit of R125 000,00, notwithstanding RCR3 of 2003.

A letter from the retired Cape Town Master confirmed thatshould a sale from the estate exceed the limit of R125 000,00then it must be referred back to him for the appointment of anexecutor. It has, however, been confirmed that this only appliesto sales directly from the estate, and not to a follow-on sale. Inother words where there is a so-called “same day” transfer andthe heirs in an “section 18(3) estate” transfer the property for ahigher value, then no further deeds office examination queriesneed be made, questioning the section 18(3) procedure.

However, the question now begging an answer is how does theDeeds Registry know that the sale of the immovable propertyis within the R125 000,00 limit?After all it can quite conceivablyhappen that a property is valued at just below R125 000,00, yetthe other assets such as cars, etc. might cause the estate toexceed the limit, having the result that the more formalprocedure of appointing an executor must be followed.

According to the said Master, his office now issuesappointment certificates which list all the assets, and fromsuch document it can then be ascertained what the value of theestate is. Since it is not a requirement to lodge these

appointment certificates for the section 18(3) - transfers, thisinformation is not available to the deeds examiner.

Two schools of thought exist in this regard. Firstly, in the caseof a sale of immovable property from an estate administered interms of section 18(3), the Deeds Office examiner should callfor the appointment certificate by the Master's representativeto ascertain whether the sale falls within the ambit of section18(3). If it appears from such a certificate that the combinedvalue of the immovable property and any other assets in thatestate will have the result that may the maximum amountallowed for a section 18(3) is exceeded, the matter has to bereferred back to the Master for the appointment of anexecutor. This has in fact been suggested by the Master.

Secondly, the Deeds Office should not concern itself with thisissue as regulation 44A(c) covers the deeds office in that theconveyancer, who has signed the preparation clause, hasaccepted responsibility that “such person has in fact beenappointed in that capacity (Master's Representative) and isacting therein in accordance with the powers (that is not to actif the estate exceeds the maximum value permitted by hisappointment) granted to him” (my parenthesis)

Republished with permission from Ghost Digest - Editor

This is a contentious issue and readers are urged to

provide their views hereon. - Editor

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Chief Masters Directive 3 of 2006: Appointment ofExecutors and/or Master's Representatives inDeceased Estates by the Master

PREAMBLE

PURPOSE

SCOPE

OBJECTIVES

The primary function of the Master is to regulate theadministration of estates. It is the duty of the Master to ensurethat the legal and financial interests of those affected in theadministration of an estate are taken care of in acompassionate manner.

The conduct of a Master must at all times assure the public thatthe manner in which estates are administered is -

• in compliance with the law; and

• that the financial and legal interests of all those who maybe vulnerable will be protected.

The Chief Master recognizes that -

the procedures and forms used in the appointment ofadministrators of estates needs to be standardized -

• to ensure uniformity in all offices;

• to eliminate all forms of corruption; and

• to bring about transparency and consistency in the wayappointments are done.

The purpose of this Directive is to direct all Masters in theperformance of their functions. This Directive is issued in termsof -

Section 14(a) of the 3which entitles the Chief Master as the executive officer of theMaster's offices to

;

Section 3 of the whichrequires the Chief Master to

Section 2(1) of theAdministration of EstatesAct.

This Directive replaces all previously issued directives inrespect of appointments in deceased estates.

This Directive addresses the appointment of executors, andMaster's Representatives in terms of the

Administration of EstatesAct, 1965 (Act No. 66 of 1965);

This Directive seeks to achieve the following objectives:-

Compliance with the Promotion ofAdministration of JusticeAct

Judicial Matters Amendment Act, 200

Judicial Matters Amendment Act, 2005

“exercise such supervision over all theMasters in order to bring about uniformity in the practice andprocedure”

“exercise control, direction andsupervision over all the Masters”.

3 of 2000.

To ensure greater transparency and openness in the functionsof the Master.

Establish uniform, fair and transparent appointmentprocedures to be used by Masters of the High Court inappointing executors and Master's Representatives;

To direct the Masters of the High Court with regard to makingappointments of executors and Master's representatives;

Eliminate corruption.

means the person appointed as the ChiefMaster of the High Courts in terms of sections 1 and 2(1) of theAdministration of EstatesAct, 1965.

means (unless otherwise indicated) anestate of a deceased person in terms of the Administration ofEstatesAct, 1965.

means the executor as defined in section 1 of theAdministration of EstatesAct, 1965.

means the Master as defined in section 2 of theAdministration of EstatesAct, 1965.

means the person appointed interms of section 18(3) of the Administration of Estates Act,1965.

means the person appointed / to beappointed as either executor or Master's Representative inthe estate.

This Directive will be effective as from date of signature of theChief Master.

Death Notice (J294)

Every Master is bound by the area of jurisdiction forwhichhe/she is appointed .

• Jurisdiction is determined in terms of section 4(1) of theAct. The ordinary place of residence of the deceasedprior to his death, irrespective of the duration of hisresidence there determines which Master hasjurisdiction.

Ensure that the deceased's residence falls within your area ofjurisdiction.

• If the place of residence falls outside the area ofjurisdiction and there is no appliation on record in terms

DEFINITIONS (FOR THE PURPOSE OF THIS DIRECTIVE)

“Chief Master”

“Deceased estate”

“Executor”

“Master”

“Master's Representative”

“Administrator”

IMPLEMENTATION

REPORTING DOCUMENTS

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of section 4(1) for the Master to assume jurisdiction, theMaster transfer the estate to the appropriate Master'sOffice with jurisdiction.

• The Master can only assume jurisdiction with the consentof the Master who has jurisdiction.

• Once the Master has exercised jurisdiction, for instanceby registering and accepting the will, he shall continue tohave jurisdiction. In such a case, jurisdiction cannot betransferred to or assumed by another Master.

Where the deceased left a will/codicil.

• If the will/codicil has not been lodged yet, it must be calledfor.

• If only a copy has been lodged, the original must be calledfor.

• The Registry Personnel must also check that there is no“live will” filed in Registry, and indicate as such on thedeath notice.

• If a will/codicil was registered but has not yet beenaccepted by the Assistant Master, a JM47 must beplaced on the inside of the soft cover (J257). This Jm47must be removed as soon as the will has beenaccepted / rejected by theAssistant Master.

• Once the will/codicil has been accepted by theAssistant Master, the original will must be filed in the vaultsand a copy must be placed on the file by Registry.

• Any endorsements made on the will/codicil by theAssistant Master, must be noted and taken intoaccount. A will's advice (JM27) must be issued byRegistry, which indicates whether a will/codicil has b e e nrejected or endorsed in any way.

• The Master may release a will delivered to him to a personlawfully requiring it to liquidate and distribute the estate ofthe deceased person outside the RSA, if he is satisfiedthat the deceased testator/testatrix has not left anyproperty in the Republic.

If it is indicated on the death notice that there is a predeceasedspouse, it has to be ascertained from the predeceasedspouse's estate that the will in that estate would have anyeffect on the administration of the estate in question.

This document must be properly signed.

ADeath Certificate, or certified copy thereof, must be lodged inall estates, accept in matters where the person signing theDeath notice was present or identified the body of thedeceased. Even though not required by law in the latterinstance, it would be prudent to call for the Death Certificate.

Marriage Certificate

An original or certified copy of the Marriage certificate or Proofof Registration, issued by HomeAffairs, may be accepted.

AMarriage Certificate must be lodged where the deceased

• died intestate leaving one/more surviving spouse(s) or

• died testate and the spouse claims to be aninterested party due to his/her half share of the estate in

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terms of an alleged marriage in community ofproperty, unless such spouse is named the sole heir in thewill.

Original Will

The original Will, if any, must be lodged or a duplicate originalWill. (Refer to section 8(4B)).

Only copies of registered and accepted wills andcodicils must be on file.

Copies of invalid / rejected wills or codicils are not kept on file,only a note containing the date of the will and the reason why itis invalid / rejected is filed in the file.

Next-of-KinAffidavit (J192)

• The Next-of-Kin Affidavit should be called for wherethe deceased

• left no Surviving Souse or• left a surviving spouse, but he/she will not be the sole

heir and/or• left no valid will, indicating the heirs or• left a will nominating heirs in a class, without specific

mention of the name of the heirs.

The Next-of-Kin affidavit must be completed bysomeone who knew the deceased and his/her family well.

A Commissioner of Oaths, and the person making theaffidavit, must sign the Next-of-Kin affidavit, as well a sany annexure attached thereto. Any alterations oramendments must also be signed accordingly.

Inventory (J243)

A provisional inventory must be lodged in terms ofsection 9 within 14 days after date of death of thedeceased.

If the deceased was married in community of property, theassets of the joint estates of the deceased and the survivingspouse must be reflected in the inventory.

The value of assets must be included as this will indicate whattype of appointment must be issued.

In the case of the death of one or more of the persons whohave massed their estates in terms of section 37, the massedestate must be reflected.

Where an estate is to be administered in terms of Section18(3), a municipal valuation must be lodged as proof of thevalue of the mentioned assets.

The inventory must be signed and dated.

List of creditors (MBU 4)

In all estates, which are administered in terms of section18(3), a full list of creditors must be provided on the form J155.

Where this part of the J155 has not been completed,Written confirmation must be provided that there are nocreditors or a separate list must be provided.

In all estates, where the assets are valued at R50 000, or less,

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Declaration: Reporting (MBU 5)

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a declaration must be provided by the applicant, that the matterhas not been reported to any Service Point, in the form of MBU5.

• This form must be dated and duly signed.

Declaration of subsisting marriages and or co-habitationrelationship

In all estates, a declaration must be provided by theapplicant, indicating if the deceased was a partner in of any ofthe following:

• One/more subsisting Customary marriages or• One/more subsisting Religious marriages or• Asame sex co-habitation relationship or• ACivil marriage

If any of the above is applicable, full details must be providedconsisting of:

• Full names of all partners• ID number of each partner (if available)• Contact particulars of each partner (if available)

Where the deceased

• died intestate or• no administrator has been nominated in a valid will or• the nominated administrator is untraceable, incapacitated

or refuses to act or• the nominated administrator in the will is deceased and no

provision is made in the will to substitute or• the nominated administrator in the will, when called

upon by the Master, by notice in writing to take out letter ofappointment within the period specified by the Master,fails to respond to the Master's request,

all interested parties must nominate, in writing, a person to beappointed as executor / Master's Representative. The Mastermust in every of the above-mentioned consider the calling of ameetingin terms of section 18 for the purposes of electing anexecutor.

Nominations should only be obtained from major heirs and/orlegal guardians of minor heirs.

In intestate estates the heirs, in this regard, must bedetermined by examining the Next-of-KinAffidavit.

If there is competition for the office of administrator, the Mastershall give preference to

• the surviving spouse or is/her nominee,• an heir or his/or nominee,• a creditor or his/her nominee,• a tutor/curator so nominated of any heir/creditor who is a

minor/person under curatorship• where there is more than one surviving spouse, all

spouses must be consulted before making anappointment

• it is advisable to follow the process of a formalmeeting in terms of section 18 where there iscompetition for the office of executor in an estate

If a corporation is nominated as an administrator,

• the appointment letter shall be granted to a person who is

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Nominations

an officer / director of the nominated corporation and• has been duly authorized by the said corporationto act on

their behalf and for whose acts and omissions asexecutor the corporation accept liability;

• the Corporation nominated in the will as executor, mustqualify to liquidate and distribute the estate of a deceasedperson in terms of R910, otherwise section 16 cannot beimplemented.

Acceptance of Trust as Executor (J190) / Undertaking andAcceptance of Master's Directions (J155/MB.48)

Where the gross value of the assets of the estate is more thanR125 000 the applicant(s) must complete the J190 induplicate

• Every person applying must complete the J190 in full;• The form must be signed the properly witnessed• Acertified copy of the applicant's ID must be lodged• If the applicant is a lay person, he/she must be

required to be assisted by a person who, to thesatisfaction of the Master, has the necessarycapabilities and trustworthiness to assist him/her. Theagent must confirm so in writing to the Master.

• A legally incapacitated person, such as a minor, maynot act as an administrator of a deceased person

• Any Board of Executors, trust company, publicaccountant and person licensed under Act 44 of 1962,may act as an administrator.

• The will must be checked for any endorsement by theAssistant Master, to the effect that the nominatedexecutor is disqualified in terms of section 4A(3) and4A(1) of the WillsAct 7 of 1953.

• A copy of the Acceptance of Trust as Executor must beforwarded to SARS. Make sure that the estatereference number is inserted on the J190 beforedispatch.

Where the gross value of the estate is R125 000 or less theestate may be administered in terms of Section 18(3), unlessotherwise directed by the Master. Applicant(s) must completeform MB. 48, in duplicate.

• Every person applying must complete the J155 in full;• The form must be signed and properly witnessed;• Acertified copy of the applicant's ID must be lodged;• A legally incapacitated person, such as a minor, may

not act as an administrator of a deceased person;• Instances where the Master may request an

executor to be appointed for such an estate:

• Minors or mental patients being heirs / creditorsof the estate

• Insolvent deceased estates• Will determines property to be sold• Dispute/complaints by creditors and/or heirs

Security in terms of section (in estates with a value of morethan R125 000)

Every person who has not been nominated by will, as anexecutor, must lodge security in terms of section 23;

• In an amount determined by the Master for theproper performance of his functions.

• The amount is determined by the value reflected inthe section 9 inventory (provisional inventory).

The following persons are exempted from furnishing security,unless the Master directs him/her to furnish security (e.g. if he

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is insolvent, has committed an act of insolvency or resides or isabout to reside outside the Republic):• The parent, child or surviving spouse of the testator o r

a person who has, in terms of the Will, beenassumed as executor by such person.

• A person nominated by a will executed before 1October 1913 or assumed by such a person and hasnot been directed by the Will to find security.

• A person nominated by a will executed after 1October 1913 and the Master has been directed todispense with security.

• A person who has been exempted from furnishingsecurity by the Court.

The Master may by notice in writing require any executor(dative of testamentary) to lodge security if:• His/Her estate has been sequestrated.• He/She has committed an act of insolvency.• He/She is about to go or has gone to reside outside the

Republic.• There is good reason for it. Refer to section 23(2),

proviso.

Sequence of documents in an Estate file:

The reporting documents must be filed in the following order,in the front section of the file:

• Death Notice (J294)• Death Certificate• Marriage certificate (if any)• Copy of the accepted will (if any)• Next-of-kinAffidavit (J192)• Inventory (J234)• List of creditors of the deceased (MBU 4 - see 8.8

hereunder)• Declaration confirming that the estate has not been

reported to any other Master's Office or service point(MBU 5)

• Declaration of subsisting marriages• Written Nominations for the appointment of an

administrator• Undertaking and Acceptance (J155) OR Acceptance of

Trust as Executor (J190)• Originally signed copy of Letter of Appointment once

issued.

Letters ofAppointment

Letters of Executorship

Where the gross value of the assets of the estate is more thanR125 000, the Master must, if satisfied that the aboverequirements have been met, issue the Letters ofExecutorship which must contain the following:

• Estate number

• Full names and ID number of the Executor

• If the nominated executor is a corporation, letters ofexecutorship, shall be granted to a personwho is an officer or director of the nominatedcorporation, indicating that he/she is acting onbehalf of said corporation

• Full names and ID number of the deceased,including themaiden name of a woman, or previous surnames wherethe deceased was previously married

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• Where spouses were married in community ofproperty, both the name and ID number of thedeceased and his/her surviving spouse should bereflected and that fact recorded on the Letters ofExecutorship

• Date of death

• Signed by the Assistant Master / Deputy Master /Master

• Contains a date stamp

• It should be prepared and signed in duplicate asone copy must be given to the appointee, and theother must be filed on record

The following documentation must be sent with the Letter ofappointment:

• Estate Duty Return Form (Rev 267)

• Notice to Creditors of the Deceased (J193)

• If security was lodged, an inventory in terms of section 27

must be sent with the letters of appointment.

Letters of Appointment of Master's Representative (Section18(3)

Where the gross value of the estate does not exceed R125000, the estate may be administered in terms of section 18(3),unless otherwise directed by the Master. The Master must, ifsatisfied that all requirements have been met, issue a Letter ofAppointment as Master's Representative which must containthe following:

• Estate number

• Full names and ID number of the appointee

• If the nominated appointee is a corporation, letters ofappointment shall be granted to a person who is an officeror director of the nominated corporation, indicating thathe/she is acting on behalf of said corporation

• Full names and ID number of the deceased, including themaiden name of a woman, or previous surnames wherethe deceased as previously married

• Where spouses where married in community of property,both the name and ID number of the deceased andhis/her surviving spouse should be reflected

• Date of death

• All assets, and the value thereof, as indicated in theInventory on record

• Signed by the Assistant Master / Deputy Master /Master

• Contains a date stamp

• It should be completed in duplicate as one copymust be given to the appointee, and the othermust be filed on record.

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The Service Point, at the Magistrate's Office where theperson was so resident, can make an appointment in thefollowing instances

(i) The deceased did not leave a valid will and;(ii) The value of the estate is not more than R50 000 and;(iii) The estate is solvent; and(iv) All the beneficiaries are majors or any one or more ofthe beneficiaries is a minor and is assisted by his/herlegal guardian and the cash assets in the estate areworth R20 000 or less.

All estates, where there is a valid will and/or codicil must bedealt with directly by the Master's Office, irrespective of thevalue of the assets.

Note that the advertisements in terms of section 29 and35, refer to the place the deceased was ordinarily resident

prior to his death. A person is “ordinaryresident” at the place to which the deceased, or otherperson concerned, would return from wandering, his realhomeA fully motivated application for transfer of jurisdictionshould be made by an interested partynot the MasterA “live will” is a will which was lodged under the repealedAdministration of Estates Act 24 of 1913, whilst thetestator/testatrix was still aliveIf the document is signed by the making of an “X”, the markof the signatory must be witnessed by a commissioner ofoathsWhen the deceased died of unnatural causes, a deathcertificate is not issued immediately. The interim proof ofdeath document is then sufficient.The marriage certificate serves as proof of the existenceof the marriage and determines the preference in terms ofsection 19 of theActIn this regard also see2004 (5) SA 331 (CC) and (2) SA 272TPDAny reference to a will includes a reference to a codicilwhere applicable.Once the above documents have been lodged, theexaminer must request Registry to refer the original Will totheAssistant Master for acceptance.E.G. “my children”, “my sons”, etc.Although an executor is not usually appointed in an estatewhere the asset value is R125 000 or less, there may becases where theAssistant Master would decide to appointan executor rather than to make an appointment in termsof section 18(3). Also see Amended Master's Instructionno 6 dated 04 June 1992.Section 9(1)(iii)Recognition of Customary MarriagesAct 120 of 1998Daniels v Campbell 2004 (5) SA 331 CC; Khan v Khan2005 (2) SA 272 T; Amod v Multi Lateral Motor VehicleAccident Fund (Commission for Gender Equalityintervening) 1999 (4) SA 1319 SCA; Ryland v Edras 1997(2) SA690 (C)Mark Gory v Daniel Gerhardus Kolver NO and Other(Erilda Start & others intervening) Case no. CCT 28/06Volks v Robinson 2005 (5) BLLR 446 CCSection 18(1)See the provisions of Section 19(i) and (ii)

12 months

Daniels v Campbell and OthersKhan v Khan 2005

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Meyerowitz on th Administration ofEstates

R.910 prohibits the liquidation or distribution of theestates of deceased persons by any person other thanan attorney, notary, conveyancer or law agent.However, any board of executors, trust company,public accountant and person licensed under Act 44 of1962 are permanently exempted from theseprohibitions. Natural persons nominated as executorby Will are also exempted from the prohibitions to theextent as specified in R.910. (R.910 can be found in thehandbook by e

, sixth edition, pp A-63 to A-65 or in the latest2004 edition on pp A-64 to A-66.) A legallyincapacitated person, such as a minor, may also notact as executor of the estate of a deceased personsection 18(6) refers.Where minors or mental patients were involved, anattorney, bank, trust company or accountant should beappointed in section 18(3) estates. An undertakingshould be obtained from this person to deposit the cashdue to the minor into the Guardians Fund within twomonths (60 days) from date of appointment. A note tothis effect should also be affected on the Letters ofAuthority issued in terms of section 18(3). The fileshould be diarized accordingly.Where immovable property is reflected at municipalvaluation, it may appear that the estate is worth R125000 or less, but the sale of immovable property mayresult I this amount being exceeded.Where the nominated executor has been convicted offraud or theft, this may be a “good reason” why he maybe required by the Master to find security. Where anexecutor was ordered by the Master or who in terms orsection 23 was required to find security, must withinthirty days from date of appointment lodge a section 27inventory (final inventory), which reflects all theproperty in the estate. The file must be diarizedaccordingly. When the inventory. When the inventory islodged, you should check whether the section 23security filed, is sufficient to cover all the assets of theestate. If not, additional security should be called for.A full list of documents can be found in the CodeExaminers, and the sequence as set out there in, mustbe followed.After sending off the Letter of Appointments the fileshould be diarized accordingly for the estate account tobe lodged or funds to be deposited as mentioned inFootnote 17 above.This must be signed by the executor personally within30 days after appointment.

Although this directive is not directly

related to the examination of a deed,

it makes for interesting reading

from a conveyancing perspective! - Editor

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Waiver Of Legal ExceptionsBy: Ingrid Broodryk

Conveyancer - Cliffe Dekker Incorporated

Allen West asked the following: “Could you please assist as towhere in the NCAit addresses the waiver of legal exceptions inbonds. As I understand it, the Latin maxims are not permitted,but the defences may still be waived. Am I correct?”

The answer is found in section 90(2)(c)) of the National CreditAct, which provides that a provision of a credit agreement isunlawful if it purports to waive any common law rights that maybe applicable to the credit agreement and have beenprescribed in terms of subsection (5). In terms of subsection(5), the Minister may prescribe particular common law rightsthat may not be waived in a credit agreement.

Regulation 32 of the NCAreads as follows:

“The following common law rights or remedies that areavailable to a consumer may not be waived in a creditagreement:

(a) Exceptio errore calculi;

(b) Exceptio non numeratae pecuniae;(c) Exception non causa debiti.

The unlawful provision is void, not the whole agreement. Theprovision must be severed from the agreement. However, acourt can declare the entire agreement unlawful.

It is has nothing to do with the fact that the provisions are inLatin. It is the provision itself that is unlawful, even if expressedin English.

However, it is advisable to express the other common lawremedies that may still be used in language that the consumerwill understand. You can still use the Latin but should providean explanatory note.”

The exception; de duobus vel pluribus reis debendi may thus still

be waived, but must be in an understandable language - Editor

Discussion On Section 35AOf The Income Tax Act

By: Lizelle KilbourneConveyancer - Igqwetha Training Academy (Pty) Ltd

25

The section was implemented on 1 September 2007.

• Apurchaser of immovable property must withhold(i.e. not pay to the seller) a certain percentage ofthe purchase price where

• the seller is a non-resident; and

• the amount due by the purchaser to the seller ismore than R2 million.

• If the non-resident seller is a natural person, 5% ofthe amount due to him/her must be withheld, if theseller is a company then 7,5%, and if the seller is atrust, then 10% must be withheld.

• The amount withheld must be paid to SARS within 14days after 'the date on which the amount was so

Section 35Ain a nutshell:

withheld' (usually date of registration, onepresumes), but where the purchaser ishimself/herself a non-resident, then within 28 days.

• Payment to SARS must be accompanied by aprescribed declaration (I have not seen the form yet).

• If the purchaser knew or ought to have known thatthe seller is a non-resident, and fails to so withholdthe amount, that purchaser is himself/herself/itselfliable to pay the amount to SARS, with interest if latepayment is made, and penalties.

• Where the seller in a property transaction is indeed anon-resident, the estate agent, if any, and theconveyancer who administers the transaction (thesection phrases it as who “...is entitled to payment ofany remuneration or payment in respect of servicesrendered ..') must notify the purchaser in writing thatthis section may be applicable.

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• If the estate agent and/or conveyancer knew or oughtto have known that the seller is a non-resident, andthen fails to so warn the purchaser in writing, then thatestate agent and/or conveyancer will be jointly andseverally be liable for the amount, but (thankgoodness for small mercies) limited to the amount ofthe remuneration he/she/they/it would havereceived.

The date of implementation -

As most attorneys, agents and property investors know bynow,the Income Tax Act 58 of 1962 was amended in 2004 by theaddition of section 35A, a section that obliges a purchaser ofproperty to withhold, in cases where the seller is a nonresident, a percentage of the purchase price. This requirement

to withhold proceeds became known as the 'propertywithholding tax on foreigners'. The purpose of section 35A is tomake sure SARS succeeds in collecting any taxes due by non-resident sellers; it may be difficult to convince some non-residents to pay tax on the South African authorities oncethese investors (and their assets) have left the country forgood.

It is also common knowledge that the relevant part of the newsection 35Awas not implemented with immediate effect. In thisregard section 35A(2) states:

Subsection 1 (the subsection creating the withholding tax)shall come into operation on a date to be determined by thePresident by proclamation in the Gazette.

Most role-players in the conveyancing and property industrieshave waited with anticipation these last three years, and a fewpredictions as to when the sections were going to beimplemented were made, but the dates always arrived andwent without any notice in the Government Gazette, andwithout communication from SARS.

I recently learned through media reports that the propertywithholding tax on non-resident property owners would take

who says it is really effective

from 1 September 2007?

What a search to find the government notice

implementing section 35A!

effect on 1 September 2007. There was nothing on the SARSwebsite indicating the authority for this, and no one I spoke tocould initially tell me in which Government notice this date wasproclaimed, so I tried my hand at some electronic and manuallibrary detective work, to no avail. Eventually, Jade Van Wykfrom SARS pointed me in the right direction.

While I admittedly overlooked what would have been obviousto tax experts going through tax legislation with finetoothcombs, I do think that the way the 'announcement' wasmade was unduly obscure. One would think such an importanttax date would merit at least a SARS media release to providetimeous forewarning and clarity to the conveyancingprofession, the international community and the SouthAfricanpublic.

Be that as it may, here is what happened in regard to'announcing' the date: Instead of a simple announcement in aGovernment notice stating “in terms of section 35A(2) of theIncome Tax Act, I hereby declare 1 September 2007 as theeffective date …” (or something to this effect), the legislatorchose to amend the section in the 2004 Amendment Act thatamended the Income Tax Act, by means of a furtheramendment Act. This 2007 amendment section states thatsection 30 of the 2004 Amendment Act is amended byinserting the date 1 September. The word “section 35A of theIncome TaxAct” is not mentioned anywhere in this 2007Act.

• Taxation Laws Amendment Act 8 of 2007 waspromulgated on 7 February 2007 in GG 29604. Page 92of this Act contains section 87, which states theamendment to section 30(2) of the Revenue LawsAmendment Act, 2004, to the effect that therelevant date will no longer be a date to be determined byProclamation in the Government Gazette, it will nowbe 1 September 2007.

• Revenue Laws Amendment Act 32 of 2004 waspromulgated on 24 January 2005 in GG 27188. Page 52of this Act contains section 30, which has as its heading“Insertion of Section 35AinAct 58 of 1962'.

Here are the references:

Republished with permission from Ghost Digest.

Pleasenote:

This journal is alsoavailable

in braille on request

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Page 31: South African Deeds Journal - Department of Rural ... · Deeds Training Spreads its Wings 16 The views expressed in the articles published in this journal do not bind the Department

28

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29

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Page 33: South African Deeds Journal - Department of Rural ... · Deeds Training Spreads its Wings 16 The views expressed in the articles published in this journal do not bind the Department

Cross-Border Insolvency Law By: Prof. André BoraineUniversity of Pretoria

30

INTRODUCTION

[Ex parteSteyn

BZ Stegmann Ex parteSteyn, ard v Smit & Others: In re Gurr v ZambiaAirways Corporation Ltd

PROPERTY AND CROSS-BORDER RULES IN TERMS OFTHE SOUTHAFRICAN GENERAL LAW

South Africa has a mixed legal system because its common-law the Roman-Dutch law has been significantly influenced byEnglish law in certain areas. Mercantile law, in particularinsolvency and company law, thus has a strong English lawcharacter.

The Insolvency Act 24 of 1936 remains the principal source ofinsolvency law in this jurisdiction, but some provisions relatingto corporate insolvency are found in the Companies Act 61 of1973 and the Close Corporations Act 69 of 1984. Insolvencyprovisions of the Insolvency Act and the general law (i.e.common law) will nevertheless apply to corporate insolvencyin the absence of a particular provision in the relevantlegislation.

The estates of natural persons are sequestrated andcompanies are wound up or liquidated in terms of theapplicable legislation. (For purposes of this discussion theterm “sequestration” will be used in both instances, unlessindicated otherwise.)

With regard to the recognition of foreign appointments, theForeign Trustees and Foreign Liquidators Recognition Act of1907, being the first statutory enactment that applied in theformer Cape Colony, provided that the then Supreme Courtcould recognize the appointment of a foreign representative.Although this Act no longer forms part of South African law,some of its principles survived through precedent.

1979 2 SA309 (O).]

At present there is no legislation in force that deals with cross-border insolvency in SouthAfrica and therefore the general lawand precedent must be applied in this regard. Based on comity,convenience and equity a South African High Court is thus stillentitled to recognize the appointment of a foreignrepresentative. [Ex parte 1902 TS 40;

; W1998 3 SA 175 (SCA).] The

principles of international private law (conflict of laws) will beapplied in such an instance with regard to the treatment ofproperty situated in this jurisdiction.

South Africa adopted the UNCITRAL Model Law on cross-border insolvency as the Cross-Border Insolvency Act 42 of2000 on 8 December 2000. However, it must be noted thatalthough being adopted as an Act of Parliament, this Act willthus only apply to designated countries but no countries havebeen designated as yet.

In view of the introduction of the principle of reciprocity, thisjurisdiction will in future follow a dual approach to therecognition of foreign bankruptcy orders in thatrepresentatives from designated countries will follow theprocedure of the Cross- Border Insolvency Act whilst thosefrom non-designated countries will still have to follow thegeneral law route.

The definition of “property” in the Insolvency Act includes alltypes of property, both movable and immovable, situated inSouth Africa. With regard to property situated in a foreign

supra

jurisdiction, the principles of private international law apply.These rules apply in the case of property situated outside theborders of SouthAfrica (outward bound situation) as well as inthe case of a request by a foreign representative to berecognized in SouthAfrica (inward bound situation).

Apart from property in the Republic, movable property of theinsolvent in a foreign country will vest in the insolvent estate ifthe estate is sequestrated by the court where the insolvent isdomiciled [ 1981 2 SA 152 (W)]. Inprinciple this means that the foreign representative will beable to lay claim to any such property outside his or herjurisdiction without first obtaining such recognition.

In case of immovable property theprinciple applies and recognition must be obtained from theforeign jurisdiction. If the representative fails to obtain thisrecognition, the immovable property remains vested in theinsolvent [1947 4 SA 192 (A);

1959 1 SA180 (D)].

Contrary to the situation with movable property where suchrecognition is deemed to be a mere formality, the recognitionin case of immovable property is a necessity and the courtshave an absolute discretion to reject or approve such anapplication [ 1993 3 SA 359(C)]. In

, the court held that it is imperative for the foreignrepresentative of a juristic person to apply for recognitionwhere the trustee has to deal with either immovable propertyor movable property in SouthAfrica.

After recognition has been obtained the foreignrepresentative may deal with local assets. A South Africancourt may impose conditions on the foreign representative inorder to safeguard the rights and interests of local creditors. Ifrecognition is refused by a South African court, or not appliedfor, a foreign creditor may apply for the sequestration of theestate in this jurisdiction.

In order to be recognized as such in South Africa, the foreignrepresentative must apply to a local High Court for recognitionand assistance. When the rights of a third party (i.e. a localcreditor) may be effected by the application, such person mustbe notified of the application [see 1985 3SA950 (W)].

Granting recognition to a foreign administrator to deal with aninsolvent's immovable property in South Africa is within thelocal court's discretion. This discretion is absolute butrecognition is usually granted in the interests of comity andconvenience. In , Innes JP,while accepting the above rule, went on to state:

“But on the other hand, the same court, acting from motives of

Viljoen v Venter NO

Mavromati v Union Exploration Import (Pty) LtdHymore Agencies Durban (Pty) Ltd v

Gin Nih Weaving Factory

Ex parte Palmer NO: In re HahnWard v Smit: In re Gurr v Zambia Airways Corp Ltd

PROCEDURALAND RELATED MATTERS

Inward bound request

Application for recognition by a foreign representative

Clegg v Priestley

The discretion to recognize foreign orders andappointments

Ex parte BZ Stegmann

lex forum rei sitae

supra

supra

0

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31

comity or convenience, is equally justified in allowing the orderof the judge of the domicile to operate within its jurisdiction, andin assisting the execution or enforcement of such order. Thematter is entirely one for its own discretion. [See also

, .]

The effect of recognition is that the local assets will be treatedas if the foreign debtor is an insolvent in terms of South Africanlaw, although he or she will not be an insolvent in terms of thisjurisdiction. [ , .] However, our courts willnot adjudicate foreign offences or tax claims. [See

1985 3 SA955 (T).]

The court will describe the mode of notice of the order tointerested parties. The order should deal with the following:

(a) Recognising the appointment of the foreignrepresentative;

(b) Duration of the order;(c) General powers of the foreign representative;(d) Security to be afforded by the foreign representative to the

satisfaction of the Master of the Supreme Court;(e) The service of the order to relevant parties;(f) S u p e r v i s i o n b y t h e M a s t e r a n d p r a c t i c a l

arrangements regarding the administration of theorder and submittal of estate accounts; and

(g) Special conditions regarding meetings of creditors;proof, admission and rejection of claims; plans ofdistribution and the rights and powers of the foreignrepresentative. These procedures will be gleanedfrom the Insolvency and the Companies Act. [See

1990 10SA954 (AD); , .]

South African courts will protect the interests of local creditorsand orders will sometimes state that “[p]roperty can only betransferred once administration costs and local debts havebeen paid before assets may be transferred” [ ,

]. However, a foreign creditor should receive preferentialtreatment if he or she holds a security acknowledged by thelocal forum.

In case of a South African sequestration order, the localrepresentative will seek to recover all assets situated in aforeign jurisdiction. In this respect the laws and procedures ofthe foreign jurisdiction must be complied with. [South Africa isnot a party to any international treaty in this regard but it is arelevant country for the purposes of recognition in terms ofsection426 of the InsolvencyAct 1986 (England).]

Although not compulsory, local representatives sometimesapply for a letter of request at a local court before approachingthe foreign court. In

1996 2 SA 677 (O) the courtdenied such a request by considering the merits of therepresentative's request to pursue assets situated in England.The court disapproved of this approach in

2002 2 SA796 (C) and stated that thecourt is not asked to approve or sanction the actions of therepresentative in the foreign jurisdiction.

Ex partePalmer NO: In re Hahn

The effect of recognition

Ex parte SteynPriestly v

Clegg

The contents of the order

Moolman v Builders & Developers (Pty) LtdEx parte Steyn

Ex parte Steyn

Outward bound request

Ex parte Wessels & Venter NNO: In RePyke-Nott's Insolvent Estate

Gardener andAnother v Walters NNO

supra

supra

supra

supra

The courts have expressed a preference for a single forum ofadministration where the main proceeding is directed by the

[See 1907 TS 657;, .] Nevertheless, if an

application for recognition fails, foreign creditors may alwaysapply for the opening of a local procedure in terms of local law.Where the local statutory requirements can be met, the localestate of a foreign natural person debtor may for instance besequestrated in South Africa. However, it is important to takenote of section 149 of the Insolvency Act in terms of which theSouth African court has a discretion to refuse such an order incase of sequestration based on the principle of conveniencewhere the debtor comes from a non-designated country. Thelocal court has no such discretion in case of a foreign debtorfrom a designated country. When exercising the discretion,the local court will rather be lead by what will happen after thegranting of the order than the convenience of the local courtsas such [ 1933 TPD 304;

1961 4 SA 329(W); 1999 4 SA216 (C).]

ThisAct applies to states designated by the Minister of Justiceby notice in the . The minister may onlydesignate a state if he or she is satisfied that the recognitionaccorded by the law of such a state justifies the application ofthe Act to foreign proceedings in such state. This requirementhas introduced the principle of reciprocity. [See sections 2(a)and (b) of theAct.]

ThisAct applies:

(a) Where a foreign court or representative seeks SouthAfrican assistance in a foreign proceeding; or,conversely,

(b) where such assistance is requested in a foreigncourt in a proceeding under the laws of the Republicrelating to insolvency (a “local proceeding”);

(c) where a foreign and a local insolvency proceedingrun concurrently in respect of the same debtor; or ( d )where creditors or other interested (foreigner)persons apply to commence or to participate in alocal insolvency proceeding [s 2(1)].

The Act will afford certain advantages to representatives andcreditors from foreign jurisdiction of designated countries.These advantages include:

• The Act will provide direct and speedy access andrecognition to foreign representatives or creditors.

• The Act also provides clarity with regard to theranking of foreign creditors by stating that theirranking will not be lower than non-preferent claims oflocal creditors.

• Foreign creditors are entitled to similar notificationsas (local) creditors.

• Local courts will not have a discretion based onconvenience to refuse a local sequestration order [ s e ediscussion ].

As far as the application for recognition is concerned, the Actclearly states that a foreign representative may apply to theHigh Court for recognition of the foreign proceeding in whichhe or she has been appointed. Such application must beaccompanied by the relevant documentary evidence,including a statement of all foreign proceedings that he/she

Application for a local proceeding

Re Estate Morris Ex partePalmer NO: In re Hahn

Morley v Pederson Goode, Durrant& Murray (SA) Ltd and Another v Lawrence

Deutsche Bank AG V Moser and Another

THE CROSS-BORDER INSOLVENCYACT 42 OF 2000

forum domicilii.supra

Government Gazette

supra

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32

knows relate to the debtor [section 15]. After recognition hasbeen granted, the foreign representative may take part in alocal proceeding [ss 11 and 12] and may intervene in anyproceeding to which the debtor is a party [ss 11, 12 and 24].Upon registration of a foreign proceeding, the foreignrepresentative acquires to initiate legal action tolocus standi

set aside any disposition that is available to a South Africantrustee or liquidator [ss 23].

The latter is indeed so see RCR 34 of 2007 - Editor

Does Agricultural Land Still Exist giventhe Stalwo v Wary case?

By: Allen WestDeeds Training - PRETORIA

Before commencing with a discussion of[2007] SCA133 (RSA), a case which

has placed the cat among the pigeons, it is apt to first provide abrief background to the Agricultural Land Act 70 of 1970 (theAct), from inception to date.

TheAct was assented to on 28 September 1970 and came intooperation on 2 January 1971. The purpose of the Act is tocontrol the subdivision and use of agricultural land. Since itsinception, the Act underwent numerous amendments. Themost significant of these was the amendment of the definitionof agricultural land, by virtue of Proclamation R100 dated 31October 1995, which included the following to the saiddefinition:

The whole Act was subsequently repealed by section 1 of theSubdivision of Agricultural Land Act Repeal 64 of 1998, whichrepeal will come into operation on a date to be proclaimed bythe President by proclamation in the Gazette (which to datehas not yet occurred).

Subsequent to the amendment of the Act by ProclamationR100 of 1995, uncertainty prevailed as to which land should beclassified as agricultural land. In view of this uncertainty andthe concerns of the Department of Agriculture, the State LawAdvisors in two opinions, 553/2000 and 408/2001, dated 21December 2000 and 25 October 2001, respectively, held thatall “farm property” must, in future, until proof to the contrary hasbeen furnished, be regarded as agricultural land for purposesof applying the provisions of the Act. The latter opinion

reads as follows:

Stalwo (Pty) Ltd vWary Holdings (Pty) Ltd

proviso

interalia

“Provided that land situated in the area of jurisdiction of atransitional council as defined in section 1 of the LocalGovernment Transition Act, 1993 (Act 209 of 1993) whichimmediately prior to the first election of the members ofsuch transitional council was classified as agriculturalland, shall remain classified as such.”

“The Department of Land Affairs, hereinafter referred to as “theDepartment” has requested our opinion on the questionwhether consent for subdivision in terms of the provisions ofthe Subdivision of Agricultural Land Act, 1970 (Act No. 70 of1970) hereinafter referred to as “the 1970 Act”, “in areas whichpreviously included 'agricultural land' but now falls in the newmunicipal jurisdictions, is still required.”

In terms of section 3 of the 1970 Act, the Minister ofAgriculturemust give his or her consent before the subdivision of anyagricultural land can be effected. “Agricultural land” is definedin section 1 of the 1970 Act and includes any land with theexception of “land situated in the area of jurisdiction …” ofcertain local authorities. Therefore, any land falling outsidethe “area of jurisdiction” of the said local authorities was“agricultural land”.

The Department refers us to the Local Government TransitionAct, 1993 (Act No. 209 of 1993) hereinafter referred to as “the1993 Act”, which changed the situation with regard to the areaof jurisdiction of the local authorities existing at that time byextending their areas of jurisdiction. The result is that“agricultural land” which prior to the commencement of the1993 Act fell outside the area of jurisdiction of the localauthorities referred to in section 1 of the 1970 Act, now fallswithin the area of jurisdiction of the “extended” localauthorities.

We are further referred to Proclamation No. R.100 of 1995promulgated in Government Gazette No. 16785 of 31 October1995, hereinafter referred to as “the Proclamation”. In terms ofthe Proclamation, section 1 of the 1970 Act is amended by theaddition of a to the definition of “agricultural land” todeclare land situated in the extended area of jurisdiction (interms of the 1993 Act) of the said local authorities asagricultural land.

According to the submission the validity of the Proclamation isquestioned. The Department is of the view that section 235(9)of the Constitution of the Republic of South Africa, 1993 (ActNo. 200 of 1993), hereinafter referred to as the “InterimConstitution”, under which the Proclamation was issuedprovided only for the assignment of the administration of a lawto an administrator or other authority and did not confer anypowers on the President to amend an Act of Parliament. TheDepartment submits that the Proclamation is anddid not change the situation with regard to the definition of“agricultural land”. “Agricultural land”, according to theDepartment which fell outside the area of jurisdiction of thelocal authorities referred to in section 1 of the 1970 Act andnow falls within the larger area of jurisdiction of transitionalcouncils established in terms of the 1993 Act, is no longer“agricultural land” for the purposes of the 1970 Act. Thereforethe Minister's consent in terms of section 3 of the 1970 Act isno longer required with regard to an application for thesubdivision of such agricultural land.

proviso

ultra vires

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Under section 235(9)(a), the President assigned theadministration of all laws with regard to agriculture to theMinister of Agriculture, including the 1970 Act, inProclamation No. 102 of 3 June 1994.

In terms of section 235(9)(b) of the Interim Constitutionsubsection (8)(b) thereof shall apply inrespect of an assignment by the President of theadministration to an administrator or other authority doneunder paragraph (a) of section 239(9). Subsection (8)(b)(i),

, clearly provides that when the President assignthe administration of a law, or at any time thereafter, he orshe may such law to regulate its application orinterpretation.

We are therefore of the opinion that the Proclamation, whicheffected the amendment of the definition of “agriculturalland” in terms of section 1 of the 1970 Act, is legally sound.The fact that the amendment has not been done with theinitial assignment in Proclamation No. R. 102 of 1994 doesnot nullify the subsequent Proclamation whatsoever, for thereason that section 235(8)(b) provides that an amendmentmay (also) be done any time after the initial assignment.

Therefore, in our view, the consent in terms of section 3 ofthe 1970 Act by the Minister of Agriculture for the subdivisionof agricultural land is still required. However, in view of thepending repeal of the 1970 Act (see the Subdivision ofAgricultural Land Act Repeal Act, 1998), it is not clearwhether the question posed to us is not at this stage of purelyacademical value.”

mutatis mutandis

inter alia

amend

Kotze v Minister van Landbou

supra

Following on this legal opinion, the Chief Registrar of Deeds,in terms of Chief Registrars' Circular 6 of 2002, laid down auniform practice. The uniform practice is that the registrationof all subdivisions of agricultural land and the increase ofshareholders in agricultural land requires the consent fromthe Minister of Agriculture or a letter from the Department ofAgriculture to the effect that the land in question is notagricultural land as defined in the Act. For the sake ofuniformity, the Registrars of Deeds applied the aboveinstruction to all land, irrespective of its extent, whichcontained the word “farm” in its property description.

In 2003 (1) SA 445 T it washeld that agricultural land still exists for the purposes of theAct, and it consists of all land except land situated within thejurisdiction of the structures named in section 1 of the Act atthe last moment when those structures actually existed. Itwas further held that until the Act is repealed, the writtenconsent of the Minister is still required for the subdivision ofagricultural land. This decision was in line with the practiceof the Department of LandAffairs and in accordance with thepractice laid down by the Chief Registrar of Deeds, referredto .

Now to return to the case that placed the cat among thepigeons. The facts of the case are briefly as follows:

On 6 December 2004 proposed subdivisions of agriculturalland were sold.At the time of the sale the land was still zonedas “agricultural land”. The purchaser brought an applicationto court to presumably compel the seller to give transfer,which application was duly opposed by the seller on thefollowing grounds:

• The agreement did not comply with section 2(1) ofthe Alienation of Land Act 68 of 1981, in that thewritten agreement did not contain a suspensivecondition; and

• The agreement was in contravention of section3(a) of Act 70 of 1970, in that no consent of theMinister was obtained.

The court found that the contract did not fall foul ofthe provisions of the Alienation of Land Act, but, due to thefact that no ministerial consent was obtained for thesubdivision, the contract was void.

Suffice to say, the Supreme Court of Appeal agreed withthe court on theAlienation of Land dispute. However,the court held that the land in question was not agriculturalland and therefore the agreement was valid and binding onthe parties.

The court based its argument on the following grounds:

• The Act is a piece of “old order legislation”envisaged by the Constitution and section 93(8)of the Municipal Structures Act 118 of 2000, andthus the definition of agricultural land mustinclude all municipal structures. This is notcontained in the decision. Furthermore, how cana definition of land include a municipal structure?The below is what is contained in the decision.

“[17] To my mind, there is no question that theAgricultural Land Act is a piece of the 'old orderlegislation' envisaged by the Constitution andsection 93(8) of the Municipal Structures Act.That being so, the words 'municipal council, citycouncil, town council' in the definition of'agricultural land' in the Agricultural Land Actmust be construed to include a category Amunicipality such as the NMMM.

• The status of agricultural land is fluid rather thanstatic and changes with the expansion of localauthorities and new ones.

• The Minister retains, in terms of the definition ofagricultural land, as set out in section 1 of the Act,the power to declare land agricultural land for thepurposes of theAct.

The author agrees that as there is no longer any landsituated outside the jurisdiction of a local authority, there isthus, strictly according to the definition of agricultural land,no more agricultural land.

However, the Department of Land Affairs is of the opinionthat the Minister will have the say as to which land is to bedeemed agricultural land.

At a management meeting with Registrars held on 29October 2007, the Registrars of Deeds held that they willcontinue to apply Chief Registrars Circular 6 of 2002, albeit

, until such time the matter isresolved by the Constitutional Court. The ConstitutionalCourt will be deciding on this matter in due course.

a quo

a quo

ex abudantei cautela

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Articles Published in Legal JournalsArticles Published in Legal JournalsHerewith a list of articles published in Legal Journals, which should beof interest to the land practitioner:

2007 TSAR 560 - Extension of schemes in terms of section 25 of the Sectional TitlesAct 95 of 1986 by D J Lots and C J Nagel.

2007 DJ 166 - Commentary on the Civil Union Act 17 of 2006 by L N van Schalkwyk

Conveyancing Through the CasesBy: Allen West

Deeds Training - PRETORIA

The following summaries of cases are of note, however,readers are advised to read the cases

(CPD) Date ofJudgement 28 March 2007; Per; Griessel, J

In the Cape High Court, Justice Griessel delivered ajudgement on 28 March 2007 regarding the validity of analleged agreement that had been concluded to purchaseimmovable property, in terms of an option that had beengranted to the alleged buyer in a lease agreement.

Simply put, an option is an unconditional and irreversible rightthat is given to a person to buy a certain property within acertain time, at a predetermined price. The option is thenexercised in writing by the purchaser, by simply advising theseller that he is now exercising the option, and in doing so, thesale is concluded. The seller may not refuse to then concludethe agreement.

In the present matter, Mr. Mostert had leased certain land to acompany, in terms of which lease the company was granted anoption to buy the property during the duration of the lease, at anagreed sum, subject to an annual escalation. On a certain day,during the existence of the lease, the company's attorney thensent a letter to Mr. Mostert indicating that his client had decidedto exercise the option, and attached a draft Deed of Sale. Thecovering letter invited Mr. Mostert to make such changes to theDeed of Sale as he thought might be necessary, and if he werehappy with it in its present form, to please sign it and return it tothe attorney for his client's signature. Several months went byand the company heard nothing. After the lease expired, Mr.Mostert wanted his property back. The company, however,refused to vacate the property on the grounds that it had

in toto:

CASE NO. 1Exercising Options to Purchase

Mostert/Van der Westhuizen and Another

exercised its option in terms of the lease. Mr. Mostert thensued the company for eviction. The company defended theclaim on the basis that it was entitled to the property on thebasis of having exercised the option.

Mr. Mostert then raised a point in law which he referred to theCourt to be determined as a separate issue, namely that theoption had in fact not been properly exercised, in that theproposed Deed of Sale that was sent to him contained aclause stating that the agreement would be subject to thecompany being able to obtain a bond from a financialinstitution first, within a certain time. In other words, the optionwas not properly exercised because the proposed Deed ofSale contained a suspensive condition.

The company argued that the condition that was attached wasmerely one of several terms and conditions that needed to benegotiated, and that this condition did not affect the questionof price but only the manner of payment. The company alsoargued that Mr. Mostert should have simply replied and statedthat he was not prepared to make it subject to bond approval,and this clause could have been removed as Mr. Mostert hadbeen invited to do in the attorney's letter.

Mr. Mostert however argued, and the Court agreed, that firstlythere was no duty on him to supplement any shortcomings inthe draft Deed of Sale, and secondly, that when one exercisesan option, it must be completely in line with the option that wasgranted above all, it must not introduce terms or conditionsthat were not part of the original option. In this case the optionwas simply worded I the lease, namely that the companywould be entitled to buy the property at a certain price, within acertain period of time. No other terms or conditions wereattached. As such, irrespective of the company's bestintentions, by law, the option was not exercised. As such thecompany's defence was ruled out.

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CASE NO. 2Suspensive Conditions

Summary:

Maharaj & Another v Govindsamy & Another [2007] JOL 19052(D) Case 17125/05 - 12/01/2007

The applicants purchased immovable property from the tworespondents. Their agreement of sale was subject to theapplicant obtaining a loan within 21 days of the date ofsignature. Furthermore, this suspensive condition was for thebenefit of the purchaser who could unilaterally waivecompliance with it. After the applicant failed to fulfill thissuspensive condition, the respondents wrote a letter to theapplicant to inform him that the contract had lapsed. Inresponse the applicants lodged this application to claimtransfer. In his founding affidavit the first applicant asserted

that the respondents were aware that they had, ,already obtained a “pre-approved bond” at the time when theysigned the agreement. The obligation had been fulfilled;alternatively, they had elected to waive compliance with thecondition. In addition, the respondents had not notified them inwriting before purporting to cancel the agreement as wasrequired by a clause in the agreement.

Held that in terms of section 19(1) of theAlienation of LandAct68 of 1981 a seller of immovable property who decides to takeaction as a result of a breach is required to give the buyerwritten notice to rectify the breach before the seller canterminate the contract. Cancellation constitutes a drastic stepthat cannot be taken willy-nilly without following the necessaryprocedure. The agreement was declared to be valid and therespondent was directed to take steps to effect transfer of theproperty into the name of the applicants.

inter alia

LETTER NO. 1TESTAMENTARY CONDITIONS AND REDISTRIBUTION

AGREEMENTS - REPLY 1

causa

causae causa

to the legatee/heir to the asset(s)

“In response to the above article I wish to submit the following:If a transfer of property is done subsequent to a will andredistribution agreement, the refers

entered into between the heirs (interms of the will):- What would have been 2 subsequent

, have become one as the Deeds Registries Actallows it by virtue of section 14(1)(b)(iii). The redistributionshould therefore no longer be seen as another 'transaction'.

I disagree with the conclusion reached in the said article andhold the opinion that any asset transferred in terms of a will andredistribution agreement shall either be fully subject to atestamentary condition or fully exempt therefrom (unless acontrary intention of course appears from the will!).

Fortunately the usual 'exclusion' condition in a will refers to allbenefits received by all beneficiaries in terms of the will. If notso, the next step will be to determine whether a particularbequest/legacy is subject to or exempt from a testamentarycondition.

I believe the intention of the testator should be the determiningfactor as to whether any testamentary condition was intendedto apply or so bequeathed.

If the condition was intended to , thechange of beneficiary by reason of a redistribution agreementshould not affect the condition applying to the asset. The ruleapplies that one cannot transfer more rights than one holds(Nemo Potest rule). Each heir contributes that which he wouldotherwise have inherited to the 'pool of assets for distribution'.When an asset which is subject to a condition is contributed,the condition continues to limit the rights to the asset even afterit has been re-distributed to a different beneficiary.

If the condition was intended to , theassets allocated to him/her in terms of the redistributionagreement will all be subject to the condition.

In the example under discussion A dies and leaves his farm to

his 3 sons subject to the condition that the inheritance shall be

excluded from marital community of property. In terms of the

to the will and theredistribution agreement

apply to the asset(s)

apply to the beneficiary

re-distribution agreement the farm is allocated to one of the 3

sons.

(i) If they also inherit other assets in respect of which nocondition applies, it shall be presumed that the

should not form part of any joint estate irrespectiveof which son receives it;

(ii) If they also inherit other assets in respect of which thesame condition applies, it shall be presumed that

(iii) Athird possibility which does not apply to this example is ifthey also inherit other assets and the testator has placeda condition only on the assets accruing to a particularbeneficiary it shall be presumed thateventually received in terms of a redistribution agreementby shall be excluded from his joint estate withhis/her spouse whilst no condition applies to the assetsredistributed to the other beneficiaries.

The practice regarding affidavits required for the registrationof the rectification of an error in terms of section 4(1)(b) of theDeeds RegistriesAct 47 of 1937 (DRA) and the application fora certified copy in terms of regulation 68(1) of DRA needs arethink.

The article by A S West in issue No. 10 of the on theapplication of section 4(1)(b) of the Deeds Registries Actstates that “although the aforementioned section does notrequire an application or affidavit, this is established practice”.This is true, and so much so that examiners believe that therehas to be an affidavit. Deeds are rejected, even by senior staff,on that basis. With respect, simple proof of the error inregistration should, given the wording of the section, be all thatis required for such a rectification to be made. Admittedly, anapplication makes for better conveyancing practice. However,established practice cannot usurp the provisions of the Actand the insistence on an affidavit should be relaxed, if notabandoned altogether.

asset assuch

allassets of all heirs are excluded;

all assets

such heir

Adrie van der MerweFisher, Quarmby & Pfeifer

SECTION 4(1)(b):ARETHINK

SADJ

LETTER NO. 2

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The article also correctly points out that section 4(1)(b) does notstipulate who may request the rectification of a deed, yet it is alsoestablished practice that deeds are rejected if someone otherthan the owner applies for their rectification. It is a simple fact that,with few exceptions, owner of land, owners of land, mortgages,etc., do not have, except for the spelling of their names and datesof birth (and sometimes even that!), any idea what requirementsare involved in the registration of deeds.

The last paragraph of that article begs comment as well.Remember, if you make no mistakes, you make nothing.However, if firm A registered the title and firm B is now instructedto pass a bond over the property and realizes that some errorexists in the title, what is there to do? Does firm B sue firm A? Tryto force firm A to attend to the rectification? Blame it on the deedsoffice and its employees for not seeing the error? Must firm B nowtend to the rectification for free? Time is money … and maybe it isthe mad rush to give rectification for free? Time is money … andmaybe it is the mad rush to give good service that can sometimesbe blamed for the errors! Batho Pele shooting itself in the foot?

As regards applications for the issue of certified copies underRegulation 68(1) of the Deeds Registries Act, it is submitted thatconveyancers are responsible for their own misery in thisinstance. The regulation clearly states that the registered owneror his agent may make the application. It continues to specify anaffidavit supporting the application, without specifying who shouldmake that affidavit. Deeds registries insist that the owner mustmake the supporting affidavit, and conveyancers blindly complywith that view, but that practice does not make sense.

It is common knowledge that by far the majority of title deedsnever pass through the hands of the owner, but are retained bythe mortgagee. How can an owner in such a case be required toissue an affidavit as to the whereabouts of the title? He cannotknow where it is!

He believes it to be safe in the custody of the bank. Big mistake!Titles are lost by banks, conveyancers, post offices, couriers,other postal services, but relatively rarely by the owner himself,because he never sees it or has it in his possession. Surely, itwould be far better practice to require the mortgagee orconveyancer, or whoever actually could have handled orpossessed the title at some time, to issue the supporting affidavit.

In terms of RCR 39 of 2003 the following question was asked:

“A real right to extend the scheme is reserved in terms of section25 of the Sectional Titles Act 95 of 1986, but the right, however,lapsed. Is it permissible for an owner of a unit in the scheme or thebody corporate to apply in terms of section 68(1) ofAct 47 of 1937to note the lapsing of the right to extend or must the developerapply?”

The resolution given was:“The body corporate on behalf of the owners may apply in terms ofthe provisions of Section 68(1) of Act 47 of 1937 to note thelapsing of the right to extend.”

In RCR 1/1991, the following question was asked:“Must the building(s) to be erected be completed within the periodreserved in terms of the section 25 of the Sectional TitlesAct 95 of1986 reservation or must the registration of the sectional plan ofextension also be completed within this reserved period?”

By: D LeeCAPE TOWN

LAPSING OF REAL RIGHTS OF EXTENSION

What is the opinion of readers? -Editor

LETTER NO. 3

The resolution given:

“The intention is that only the building(s) must be erected andcompleted within the stipulated time.”

The problem which now arises is that even though the rightmay have lapsed by effluxion of time, RCR 1 of 1991 providesthat only the building(s) need to be completed within thisperiod, the developer can bring his/her application for theregistration of the extension of the scheme at any time, evenyears after the reserved period has lapsed. The developer will,however, have to prove that the building(s) were completedwithin the reserved period.

It may further appear from the perusal of the estimatedparticipation quotas filed with the section 25-reservation thatthe developer has exhausted his/her right by the registrationof all the units reflected in such estimated participation quotas.

Section 25(13) of the Sectional Titles Act 95 of 1986 provides,“with due regard to changed circumstances the developerdoes not need to strictly follow the section 25(2) plans” (myparaphrase); see also Knoetze v Saddlewood CC 2001 I AllSA42 S.E. in this regard.

The developer may therefore still have further registrationspending under such section 25 reservation and it will not bepossible for anyone besides the developer to know whetherthe right has lapsed or not.

It is therefore imperative that RCR 39 of 2003 be withdrawn inthat only the developer may apply, in terms of the provisions ofsection 68(1) of Act 47 of 1937, to note the lapsing of the rightto extend. The danger is that the body corporate couldextinguish a title in terms of which the developer still haspending registrations.

In the SADJ of October 2006 on page 11 the calculation of thetransfer duty payable by each shareholder seems to be incontradiction with the way of determining the transfer dutypayable as provided for in section 2(5) of the Transfer DutyAct(Act 40 of 1949).

Am I missing something?

Congratulations and also thank you for a very goodpublication.

One should note what kind of shares is talked about.Undivided shares in a property is not deemed to be the sameas shares held in a company. As I had the same queryregarding “shares in a company” and “undivided shares in aproperty”, I queried this with SARS Law Writers and NationalTreasury when “shares” was brought into of the Transfer DutyAct, 1940 (“the Act”) as part of the definition of “property” andwas assured that the meaning of the amendment was as is setout below.

Section 2(5) the Act refer to “undivided shares in a property”which means person A has a share (i.e. 50% undivided sharein the property) and person B has the other 50% undividedshare in the property.

However when shares in accompany is sold, i.e. 50% sharesin company ABC the examples as set out in Mr. Franck'sarticle will be used.

Warren HamerBuchanan Boyes

SADJ OCTOBER 2006 TRANSFER DUTY : ACQUISITIONOF IMMOVABLE PROPERTY BY A COMPANY, CLOSECORPORATION OR TRUST:ARTICLE BY PS FRANCK

Steinman de Bruyn

SARS responded as follows to the above concern:

LETTER NO. 4

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