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Did you know - IV?

8 August 2012

  •  A registrar of deeds has the power, in terms of section 4(1)(a) of the Deeds Registries Act 47 of 1937 (DRA), to require proof on affidavit if he/she is not satisfied with a conveyancer’s certificate (RCR 11 of 1950).

  • When an agreement was made by a deceased during his/her lifetime, the bond may be passed in favour of the estate of the deceased, provided proof is submitted that the deceased agreed to the acceptance of the bond for the balance of the purchase price during his/her lifetime. Alternatively the bond can be registered by order of court (RCR 17 of 1950).

  • Deeds Registries allow for heirs to redistribute property without reference to other heirs, which is regarded as giving effect to the letter and spirit of section 14 of the DRA (RCR 2 of 1951).

  • Conditions, which obviously do not apply by reason of their situation to a portion of land, should be omitted from certificates of registered title (RCR 5 of 1951).

  • Marriages governed by the laws of a foreign country should be described as “governed by the laws of the country of domicile of the husband” and not “by the laws of another country(RCR 35(a) of 1951).

  • The onus to determine the consequences of a foreign marriage is not that of the deeds registries, but that of the conveyancer (RCR 35(b) of 1951).

  • Heirs cannot create reciprocal rights and obligations inter se in a redistribution agreement, in respect of the creation of restraints on alienation (cf De Wet v De Wet 1951 4 SA 212 C and RCR 3 of 1952).

  • Servitudes created reciprocally over or in favour of portions of a property in favour of or over the remaining extent thereof may be embodied in the transfers when all subdivisions and the remainder are transferred simultaneously (RCR 7 of 1953).

  • The following procedure should be followed when shares are transferred:
     
    • Where the shares of the transferees differ as amongst themselves, but the deed conveys similar shares in different properties, the description should be as follows:
      “…hereby cede and transfer … to and on behalf of (1) A …..3/10 share, (2) B…..1/10th share, (3) C…..1/10th share, together comprising ½ share in the following properties their heirs, etc. … (1) ½ share in X property, (2) ½ share in Y property”

    • Where the position is similar to that above, but the deed conveys different shares in the different properties, separate deeds must be passed (RCR 5 of 1954).

  • If a notarial bond is passed by a firm carrying on business in a specified locality, the place of residence and the place of business of the members of the firm must be disclosed and the provisions of section 62 of the DRA must be complied with regard to the registration of the bond (RCR 16 of 1954).

  • Where a conveyancer, acting under a mandate to perform an act in a deeds registry, has implied authority to do all necessary ancillary acts, he/she may under such authority apply on behalf of the owner in terms of sections 34, 43 and 44 when action under such sections is necessary for the performance of the act for which he/she is authorized. A conveyancer may also apply for the necessary endorsement of the title in terms of section 68(1) of the DRA, provided proof is furnished of the facts (RCR 44 of 1954).

  • While there is no provision for amending an erroneous purchase price in a deed, a registrar can make an appropriate endorsement on production of satisfactory proof, in terms of section 3(1)(v) of the DRA (RCR 4 of 1956).

  • The creditor who takes action under an attachment and procures sale of the property is entitled to demand that transfer be passed pursuant thereto, without the withdrawal of earlier attachments by the sheriff (RCR 5 of 1958).

  • With regard to notarially attested instruments it is common practice to require two witnesses, which practice does not appear to lack substance (see the obiter dictum in Meintjies v Registrar of Deeds 1915 T 228 and in Commissioner for Inland Revenue v Graaf 1935 A at 221 and RCR 20 of 1958)).

  • Where an executor who has an unsecured claim which he/she is unable to liquidate immediately is offered and accepts security in the form of a bond, such bond may be registered.

    • In terms of the law advisers’ opinion 1/804/26 dated 6th June 1949, where an executor has sold property, it is permissible to register a bond direct to the heirs when they have agreed to accept such bond as a part of or in full satisfaction of their inheritance.

    • Either a redistribution agreement or the consents of all the heirs must be produced to show that specific bonds were awarded by agreement to a particular heir (RCR 1(r) of 1959).

  • Where a usufruct is registered in favour of persons married in community of property, and the husband acquires the bare dominium, there is no merger of the wife’s usufruct. Where the usufruct flows from testamentary disposition the principle of the jus accrescendi should be applied to the usufruct remaining. Where the usufruct is an inter vivos creation, the question of the extent of the wife’s usufruct is one which depends on the wording of the instrument in which the usufruct was created (RCR 32 of 1961).

  • Where the husband is domiciled in a foreign country and the parties enter into an antenuptial contract regulating the consequences of their marriage (see Johnson v Registrar of Deeds 1931 C 228), the spouses must be described as being married which marriage is governed by the laws of that country (RCR 64 of 1961).

  • In view of the decision Bodasing v Christie N.O. 1961 3 SA 553 A, when a bond is registered over land subject to a pre-emptive right, the bond should disclose such right. Whether a waiver is necessary or not may be left to the conveyancer concerned (RCR 35 of 1962).

  • It is competent that a mandatory may act him/herself under a general power of attorney whilst a power of substitution is still in existence (RCR 51 of 1962).

  • It is essential in redistribution agreements that the capacity of the contracting parties should be proved (RCR 13 of 1964).

Allen West
Deeds Training
Pretoria

Reader Comments: 10
Anville van wyk 03/08/2012:

With a foreign same sex marriage, which of the partner's domiciliums is followed?

Allen West 07/08/2012:

At this point in time this is a lacuna in the Civil Union Act. However, it is clear that a civil union can only be concluded between South Africans and thus it is held that the domicile will not play a role.

Allen West 07/08/2012:

At the Conference of Registrars it was held that a foreign same sex marriage will follow the prescripts of section 17 (6) of the Deeds Registries Act 47 /1937. Should the marriage be valid in the country where it was concluded it will be deemed a foreign marriage and section 17(6) will apply.  As per my previous response, a Civil Union, in my view, can only be concluded between South Africans

Anville v Wyk 07/08/2012:

Alan, why do u say that the CUA is applicable to South Africans only? In my situation, the one partner was domiciled in SA, and the other in the UK. They were married in SA.

Allen West 07/08/2012:

Where another Country does not recognise the validity of such a marriage , you cannot apply the laws of South Africa to enforce it upon such Country

A v Wyk 08/08/2012:

Alan, thank you.  So in my example only SA law can be applicable, ie if there is no Pre-nuptual, they are married in com of ppty? I do not see a prohibition in the Act against foreigners entering into a marriage ito the CUA. So, if a couple gets married in SA ito CUA, one domiciled in England and one in California, how do we describe them if they buy a ppty here?

A S West 08/08/2012:

Should England and California recognise such marriage as a valid marriage, it will be deemed a foreign marriage and described as per CRC 5 / 1994.   Please read the case of Steyn v Steyn which will shed more light on this issue

Mandi Hamman 23/08/2012:

Whether or not a marriage is recognised as valid in South Africa, is determined by the laws of the country where the marriage is concluded. It is only the matrimonial property regime applicable to such marriage which is determined by the country of domicile of the husband.

Therefore, if a same sex marriage is validly entered into abroad, while both partners are domiciled in South Africa, it is a marriage in community of property, not a marriage which is governed by the laws of the other country. Or is it contended that a same sex marriage legally entered into abroad offends public policy in South Africa, and should not be recognized?

Mandi Hamman 24/08/2012:

A person's nationality and domicile is not the same thing.  Whose domicile will be followed if two same sex South Africans get married in South Africa terms of the CUA while the one partner is domiciled in England and the other in South Africa? Who will be the husband for purposes of domicile to determine the matrimonial property system applicable to the marriage?

Heather 31/08/2012:

If the same sex parties have entered into an ANC without the Accrual System. One party is resident in SA and the other in Japan. Japan does not recognise same sex marriages. But both parties have signed the ANC in terms of the Matrimonial Property Act 1984 and the document was authenticated in Japan and the ANC is to be registered in South Africa then the marriage should be OUT OF COMMUNITY OF PROPERTY even though it is same sex. Am I correct?

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