Lecture 1

DEEDS AND NOTARIAL PRACTICE INTRODUCTION AND TRANSFER OF

OWNERSHIP

INTRODUCTION

Classification of the South African Registration System:

• (1) Types of registration systems

• (a) Registration of deeds (negative system)
• The deed is registered and not the title
• Some government involvement but deeds are registered more or less on face
value without any guarantee of title
• Not necessarily continuity and completeness of records
• Searches must be done in the deeds registry preceding 40 years in respect of
names of persons who had property rights in the land
• Delivery of the title still not without risks

• (b) Registration of title (positive system)

– The whole process is under the control of the central government
– Identity of the land is specific and undisputable
– Title is undisputable and guaranteed
– There is security, completeness of records, accuracy, simplicity, effectiveness and
applicability for the purpose and protection of the rights of persons who have limited
rights in the land. The best example of this system – the Torrens system in Australia.

• (2) The South African system

• The SA land registration system has elements of a system of registration of title
– Our system is not merely a system of registration of deeds
– Contrary to the official title of the Act governing our registration system namely
“Deeds Registries Act”
• Our system complies with most of the requirements of a positive registration of the
title system, namely:
 There is a scientifically prepared diagram of each parcel of land in order to
eradicate any uncertainty as to the identity thereof
 There is security and an indisputable title
 There is continuity and completeness of records
 The deeds are meticulous and accurate because all deeds and documents are
thoroughly examined
 There is however simplicity in the process
 It is an effective and suitable system - developed over many years

Furthermore, our system rests on the following principles:

• Only the registered owner or nominee may convey rights in land.
• Title must be registered in the name of the owner.
• Each registered owner of land or holder of a right remains owner or holder, until:
– Coram lege loci;
– By order of the court;
– In terms of the operation of law

he/she is dispossessed

In our system, contrary to the Torrens system, we have a tacit guarantee of an

indisputable title:
– Negative guarantee by the government – no other method of acquiring ownership
of immovable property by way of registration;
– Positive guarantee by the government – the government can be held responsible if
Registrar did not act with the necessary care and diligence;
– Registration is a guarantee of the unassailability of the registered right –
presumption of ownership extremely strong;
– There is a duty on the Registrar of Deeds to examine all deeds and documents
thoroughly and to reject them if they don’t comply with a legal principle or relevant
Act;
– Cancellation of a registered right can only be done by a court of law unless the
Deeds Registries Act or other law provides otherwise;
– Each deed must have acceptable causa – registration cannot be effected for
unlawful or forbidden reasons and the security of title is therefore strongly enhanced;
– Transferee becomes an owner in their own right – no uncertainty or argument over
who the lawful owner is;
– Transferor must have own title which must be lodged at the Deeds Office – this
creates a strong presumption that the transferor is the actual owner of the property;
– Reason why our system is not called registration of title – Act also makes provision
for registration of deeds which have nothing to do with land registration such as
notarial bonds and antenuptial contracts.

Summary – SA Land registration system is a unique system which is a combination

of the positive and negative system
Leans however more over to the positive registration of the title system

TRANSFER OF OWNERSHIP

• 1. How ownership of land is conveyed from one person to another

• The Development Facilitation Act 67 of 1995 provides the machinery for the
transfer of initial ownership of land
• The general rule for transfer of initial ownership in a land – Deed of transfer in
accordance with the prescribed form CCC
• Re-transfer of initial ownership – Form E

• Causae:
– Sale agreement
– Donation agreement
– Rectification agreement
– Exchange agreement
– Inheritance – testate or intestate

• 2. Exceptions to the general rule – Transfer by Endorsement

• 2.1 Proviso to section 16
• The proviso to section 16 of the Act provides that where the State acquires all the
land held under any title deed, whether by way of expropriation or otherwise, or
where a local authority by the provisions of any law acquires all the land held under a
title deed from another local authority, the registrar shall make such alterations and
entries in his registers and such endorsements on any such title deeds as may be
necessary to register transfer to the State or such authority.
• Unfortunately this proviso, at some cost to clarity and consistency of legal principle
refers to the words “register transfer” where ownership has passed by operation of
law i.e.expropriation.
• The endorsing of the title in the instance where the state acquired all the land by
way of expropriation only constitutes a fact i.e. transfer of ownership has already
occurred by operation of law and the endorsement of the title only provides the State
with documentary evidence of ownership which it already possesses.
• If the State or local authority, however, acquires ownership of land in any other
manner than expropriation, then the endorsement of the title will be tantamount to
the registration of transfer (traditio).

• 2.2 Section 24bis (2)

• From the Act it would appear as if a partnership is a separate legal entity distinct
from the individuals who constitute the partnership.
• However, a partnership is not, under the common law, a persona or separate legal
entity. Thus any land registered in the name of a partnership vests in the partners in
undivided shares (bound common ownership) which become divisible upon
dissolution of the partnership (free co-ownership).
• Section 24 bis (2) of the Act provides that if on the dissolution of a partnership, any
land owned by such partnership is awarded to all the partners the registrar shall
endorse on the title deed of the land that the land vests in the individual partners as if
they had taken formal transfer in their names.
• Once again the impression is created that the endorsement constitutes a transfer of
ownership, but keeping in mind that a partnership is not a separate legal entity,
distinct from the individual partners, the endorsement of the title is nothing more than
the constituting of a fact i.e. that the bound common ownership of land is now
converted into free co-ownership and may be dealt with individually by the former
partners of the dissolved partnership.

• 2.3 Marriages in the community of property

• 2.3.1Conclusion of a marriage

• Marriages in the community of property must be the most common instance where
a person acquires ownership, or rather a share in the ownership of immovable
property without registration.
• At the commencement of such a marriage the property of the spouses, subject to
certain exemptions, are brought automatically into the community without the
necessity for the transfer of such land.
• It occurs by operation of law and the spouses become bound-tied owners of any
land belonging to either of the spouses.
• Community of property in a joint estate can be dissolved by death, divorce, an
order of division or by a change in the matrimonial property system in terms of
section 20 or 21 of the Matrimonial Property Act No. 88 of 1984.
• On dissolution of the community, the shares of the former spouses become
determinate and divisible and each of the former spouses or their estates becomes
free co-owners.

• 2.3.2 Section 45(1) – Transfer by means of endorsement

• Where immovable property constitutes an asset in a joint estate and the surviving
spouse has lawfully acquired the share of the deceased spouse in the land, the
registrar of deeds shall endorse on the title deed of the property that the surviving
spouse is entitled to deal therewith as if he/she had taken formal transfer into his/her
name of the share of the deceased spouse.
• The effect of this endorsement is that the deceased spouse’s common law half
share has now formally been transferred to the surviving spouse.
• Delivery of the deceased’s half share has thus taken place by virtue of the
endorsement, the other half share belonging to the surviving spouse vests in him/her
by operation of law.

• 2.3.3 Section 45 bis(1)(a)

• If the immovable property or a lease under any law relating to land settlement or a
bond is registered in a deeds registry and it formed an asset in a joint estate of
spouses who have been divorced, and one of them has lawfully acquired a share of
his or her former spouse in the property, lease or bond; the registrar may, on written
application by the spouse concerned and accompanied by such documents as the
registrar deems necessary, endorse on the title deeds of the property or on the lease
or the bond that such spouse is entitled to deal with such property, lease or bond,
and thereupon such spouse shall be entitled to deal therewith as if he or she had
taken formal transfer or cession into his or her name of the share of the former
spouse or his or her spouse, as the case may be, in the property, lease or bond.
• 2.3.4 Section 45 bis(1)(b)

• If the immovable property or a lease under any law relating to land settlement or a
bond is registered in a deeds registry and it forms or formed an asset in a joint
estate, and a court has made an order, or has made an order and given an
authorisation, under section 20 or 21 (1) of the Matrimonial Property Act, 1984 (Act
88 of 1984), or under section 7 of the Recognition of Customary Marriages Act,
1998, as the case may be, in terms of which the property, lease or bond is awarded
to one of the spouses, the registrar may, on written application by the spouse
concerned and accompanied by such documents as the registrar deems necessary,
endorse on the title deeds of the property or on the lease or the bond that such
spouse is entitled to deal with such property, lease or bond, and thereupon such
spouse shall be entitled to deal therewith as if he or she had taken formal transfer or
cession into his or her name of the share of the former spouse or his or her spouse,
as the case may be, in the property, lease or bond.

• 2.3.5 Other exceptions

• (a) Section 45bis(1A) – Division of the joint estate after divorce or in terms of a
section 20 or 21(1) order (same as s 45 bis except both parties are entitled to deal
with the property as if there was a formal transfer)
• (b) Section 58(2) – Revesting of rehabilitated insolvent with land (endorsement to
procure the transfer of ownership of land from the trustee of insolvent estate to
rehabilitated insolvent)
• (c) Section 33 – Registration of title by other than the ordinary procedure (eg an
application to the court for an order authorising the registration of property in a
person’s name after prescription)
• (d) Section 31 – Transfer of expropriated land or land vested by statute

Lecture 2
THE TRANSFER PROCESS
Instruction to transfer immovable property received from :
(a) Estate agent
(b) Seller
(c) Purchaser
(d) Developer
(e) Correspondent

 Instruction to register or cancel a bond primarily received from:

(a) A financial institution

 Categories of documents in a file of a deed of transfer:

(1) Correspondence
(2) Documents which should be obtained and kept on file, including all
supporting documentation
(3) All documentation intended to be lodged at the deeds office.

 The first step that the conveyancer should do is to investigate the contract of sale
in order to determine and confirm its validity and take note of any conditions or any
specific instructions
 It is a good idea to make a summary of the instruction on the front of the file with
relevant contact details

1. CORRESPONDENCE
1.1 Acknowledgement of receipt – conveyancer must send a letter acknowledging
receipt of the new instruction received.

If instruction is received from an estate agent, it will most probably be expected from
the conveyancer to give an undertaking for his/her commission.

Due to the fact that the estate agent may hold the conveyancer responsible by virtue
of such undertaking, it is important to stipulate that the commission will only be paid
out to the agent at registration of the property, if sufficient funding is available and if
the seller grants the necessary authorization to do so.
1.2 Letter to the purchaser – The purchaser should be informed that you have
received the instruction.

1.3 Letter to the seller – Even if the seller nominated you as a conveyancer, you
should also inform him/her that you received the instruction.

2. OBTAINING INFORMATION
2.1 Deed-search – contains a variety of information regarding immovable properties
as well as persons.

2.2 Cancellation figures – the amount required by the current

bondholder/mortgagee for the full and final payment of the current bond. Consent
must be granted by the bondholder for cancellation of the current bond.

Information that should be provided to the bondholder to obtain cancellation

figures is:
(a) Bond Number
(b) Account number of the mortgagor
(c) Title deed number
(d) Complete property description.

Conveyancer must request the following from the mortgagee of the existing
bond:
(a) Cancellation figures
(b) Existing title deed
(c) Name of the firm dealing with bond cancellation

2.3 Clearance figures – A clearance certificate should be obtained from the local
municipality where the property is situated. Before a certificate is issued, you must
first obtain clearance figures.

The obtaining of a clearance certificate consists of a twofold process:

(a) The majority of municipalities have a pro forma form that should be completed.
The form must be presented to the municipality. Previously in Tshwane, a prescribed
tariff also had to be paid but the new practice is to include this tariff in the clearance
figures itself. It is practice to request clearance figures for a period of at least 3
months ahead of time.

(b) As soon as the conveyancer has received the clearance figures, he will request a
deposit from the seller/purchaser (not to be confused with the deposit
in terms of the deed of sale) to pay the rates and taxes in advance. Form plus
payment/proof of payment must be presented to the municipality, where a clearance
certificate will be issued. In certain cases, the property may be located in an area
where a Section 10 company is in place. In such cases, there are usually conditions
in the title deed determining that a clearance certificate should also be obtained from
the Section 10 company.

If the immovable property is a sectional title unit, the certificate of clearance should
be obtained from the local authority as well as the body corporate or the sectional
title managers. The process followed is similar to in the first case, where the
certificate is obtained by the local authorities.

2.4 Title Deed

The existing title deed of the land should be obtained from the current
bondholder/mortgagee - the deed is usually kept by the bondholder as additional
security.

The reason why you should get the title deed is threefold:
(a) It is required that it should be submitted to the deeds office with the registration of
the new title deed.
(b) You will use this in the compilation of supportive documents and the new deed of
transfer.
(c) You, as a conveyancer, will have to investigate the existing conditions of the title
to see to it that it is adhered to.

2.5 Valuation Certificate

In certain circumstances, it may be necessary to be in possession of a valuation

certificate.

3. THE COMPOSITION OF THE SUPPORTIVE DOCUMENTATION

There are certain documents that should accompany the title deed to the deeds
office in order to accomplish the transfers. These documents are known as
supportive documentation. Certain preceding documentation however has to be
obtained first.

3.1 Preceding Documentation

Kindly note that the preceding documents should not be submitted at the deeds
office, but are merely kept on file at the office of the transferring attorney.

(a) Purchase agreement - The conveyancer should determine whether the

agreement meets all the required formalities, whether the parties having signed the
agreement have been authorized to do such, as well as whether there are any
compelling conditions.
(b) Identity documents - It is wise to obtain a copy of the identity documents of
every party involved, so as to correctly refer to their full first names, surnames and
identity numbers in all the deeds, powers of attorney, as well as other documentation
that may be compiled.
(c) Marriage certificate - In all documentation submitted to the deeds office, the
marital status of natural persons should be indicated. It is therefore essential to get
hold of a copy of their marriage certificate, due to the fact that their marital status will
be indicated therein.
(d) Antenuptial contract - If the purchaser or seller has an antenuptial contract
regulating their matrimonial property system, a copy of their antenuptial contract
should be obtained.
(e) Resolutions - If the purchaser or seller is a company, close corporation, trust,
church or society, the conveyancer should be wary. These organizations cannot act
for themselves, but is represented by a natural person. In such cases a resolution
should be obtained wherein the entity authorizes the transaction and the natural
person involved is authorized to act on behalf of the entity. In the majority of the
cases such a resolution does not exist and the conveyancer then has to prepare one
on behalf of the entity.

3.2 Supportive Documentation

The conveyancer should prepare a set of supportive documents for the
PURCHASER and the SELLER.

3.2.1 Documents to be signed by the seller

(a) Power of attorney to give transfer -only the owner of the immovable property, or
alternatively a conveyancer, having been properly authorized to do such through
written power of attorney may appear before the registrar in order to accomplish the
transfer.
(b) Affidavits - Depending on the circumstances, the following affidavits may be
prepared for the seller:
• Marital status declaration
• Solvency declaration
• Company/close corporation/trust resolution
declaration
• Vendor declaration
• No identity document declaration

 Marital status declaration - In accordance with the Deeds Registries Act, the
marital status of the natural person should be stated in every deed or document
submitted at the deeds office. It is therefore common to obtain an affidavit from every
natural person in which he declares his marital status. In certain cases, it may also
be necessary to determine which country’s laws regulate the marital dispensation
between the parties. This affidavit is not submitted but is only kept in the file of the
conveyancer for record purposes.

 Solvency declaration - In the case where a person is sequestrated, his/her name

will be recorded in an index known as the “insolvency index”. The registrar of deeds
will see to the presentation of a solvency interdict against the name of the insolvent
in the register of the deeds office to prevent such a person to trade with any
immovable property, bond or real right. Important to obtain an affidavit from the seller
in which he declares that he is currently not insolvent and that he has never been
insolvent, as well as that there is no pending application for the sequestration of his
estate. This affidavit is not submitted but is only kept in the file of the conveyancer for
record purposes.

 Company/close corporation/trust resolution declaration – The conveyancer

takes the responsibility that a person who signs documentation on behalf of a
company, closed corporation, trust, church, club or association, is sufficiently and
legally authorized to do such. This documentation is not submitted to the deeds
office but is only kept on file at conveyancer on behalf of record purposes.

 Vendor declaration - If the seller is a vendor as described in the

Value-Added Tax Act, an affidavit should be obtained from the vendor in which he
declares that he is a registered vendor in accordance with section 23. This
declaration is not submitted to the deeds office but is only kept on file at the
conveyancer for record purposes.
 No identity document declaration - If the seller does not have an identity
document, a No Identity Document declaration should be taken. This declaration will
have to accompany the other documentation to be submitted at the deeds office, due
to the absence of an identity document of one of the parties.

(c) Transfer Duty Declarations, as well as VAT-declarations

The Transfer Duty Act determines that transfer duty is to be paid at the obtaining of
immovable property or rights on immovable property. In certain cases, the payment
of transfer duty is exempted. Nevertheless, transfer duty declarations must be filed
on behalf of the parties involved. Previously, these declarations, together with other
documentation, depending on the kind of transaction, together with the cheque for
the transfer duty, should have been simultaneously submitted to the office of the
Receiver of Revenue, who would in return grant proof of payment by way of a
transfer duty receipt. As of 1 April 2011, the transfer duty declarations and other
relevant documents must be submitted electronically by way of “e-filing”.

Thereafter the transfer duty amount must be paid electronically where after a transfer
duty receipt can be printed. This transfer duty receipt should ultimately be submitted
at the deeds office as proof that the transfer duty has indeed been paid. Previously,
the format of the transfer duty declaration by the seller was prescribed and there
were several different forms over the years that had to be filled in and signed by the
seller. In 2011 all these forms were merged into one all-encompassing form
(TDC01), which must be filled in and submitted electronically.

In the cases where the seller is registered as a vendor in terms of the Value-Added
Tax Act he will have to pay the VAT to the Receiver of Revenue. The purchaser will
then not be responsible for the payment of any transfer duties. In such cases the
seller should also fill in and submit the TDC01 form electronically.

3.2.2 Documents to be signed by the purchaser

(a) Affidavits - Marital status declaration; Solvency declaration; Company/close
corporation/trust resolution declaration; Vendor declaration; No identity document
declaration Mutatis mutandis to the seller‟s affidavits, where applicable.
(b) Transfer Duty Declaration - Previously, the format of the
transfer duty declaration by the purchaser was prescribed and there were several
different forms over the years that had to be filled in and signed by the seller.
In 2011 all these forms were merged into one all-encompassing form (TDC01),
which must be filled in and submitted electronically.
See the SARS website for forms: www.sars.gov.za - quick link to all forms

(c) Request for Deposit and Pro forma account - The conveyancer should at the
initial observance of the contract determine whether a deposit is indeed payable. If
so, it should be requested from the purchaser in due time.

The following funds are to be received from the purchaser:

(i) The amount of transfer duty payable to SARS should be obtained

(ii) Deeds office registration fee
(iii) Depending on the terms of the contract - sufficient funding to pay the clearance
figures in advance for about three months (includes the amount to obtain figures)
(iv) An amount for post and petties
(v) Professional fee
(vi) If the firm of attorneys is registered for VAT, the VAT on the post and petties, as
well as the VAT on the professional fees

Documents (eg proof of residence) must also be obtained from both parties to
comply with FICA.

4. FINANCIAL ARRANGEMENTS

4.1 The Clearance Certificate

The process to obtain a clearance certificate was already discussed.

4.2 Transfer Duty Receipt

It basically entails the electronic submission of the transfer duty declarations
(TDC01) and other documentation requested by the Receiver by way of “e-filing” on
the website of the Receiver. At reception, the Receiver of Revenue will verify
whether all applicable information is indeed correct. Hereafter a notice of the amount
transfer duty payable will be issued electronically. This amount must be paid
electronically to the Receiver after which the transfer duty receipt can be printed
electronically by the conveyancer. All additional documentation accompanying the
submitted transfer duties declaration will depend on the kind of transaction, as well
as whom the parties involved with the transaction are.

4.3 Cancellation Figures

As mentioned above, the conveyancer will after observing on the deed search that a
bond is registered on the property, obtain certain information from the seller, after
which the conveyancer will direct a letter to the bondholder/mortgagee (bank) in
order to obtain the cancellation figures.
The mortgagee will then send the cancellation figures, together with the existing title
deed, as well as the name of the attorney’s firm who will see to the cancellation of
the bond (cancellation attorneys) to the transfer attorney.

4.4 Request Guarantees

Section 56 of the Deeds Registries Act determines that immovable property

encumbered by a bond, may not be transferred unless the bond is dealt with. The
mortgagee will only agree to cancellation when he is given a guarantee.

The conveyancer takes the cancellation figures, together with the other information
being provided to him by the current mortgagor, processes it and requests the
guarantees from the bond attorney.

Guarantees are not only requested to ensure the cancellation figures but also to
ensure the balance of the purchase price.

The guarantees requested should at least contain the following information:

 The beneficiary;
 The amount;
 The interest rate;
 The capital amount on which interest is payable;
 The date from which interest should be calculated;
 Where the guarantees are payable;
 Which transactions should be registered before payment can take place;
 On whose advice and insistency the guarantee is payable.

The format in which guarantees are requested can be best outlined by way of an
example. Suppose that George Russell sells his house to Susan Brown for an
amount of R200 000-00. The contract determines that an amount of R20 000-00
deposit be paid into the trust account of the transfer attorney at signing of the
contract which she did. She obtains a bond at Nedbank on behalf of the balance
purchase price, being R180 000-00 at the registration of a first bond in the favour of
Nedbank.

George Russell bought this property three years ago. He obtained a bond at ABSA
at the registration of a first bond in the favour of ABSA. The transfer attorney
requests the cancellation figures from ABSA. He is informed that George Russell
owes ABSA a capital amount of R141 467-51 plus interest at 14,25%.

In order to obtain the necessary permission from ABSA to cancel the bond, a
guarantee should be obtained from Nedbank (the purchaser‟s bank) to ensure the
cancellation figures. This is the first guarantee the transfer attorney should obtain.

The transfer attorney should however ascertain that the full purchase amount is in
his trust account with registration. He should consequently request a second
guarantee from Nedbank to ensure the balance purchase price. Do keep in mind that
the buyer has already deposited R20 000-00 into the trust account.

The transfer attorney would request the following guarantees:

1. A guarantee in favour of ABSA for an amount of R141 467-45 plus interest on the
amount of R141 467-45 at a rate of 14,25% calculated from January 5, 2014 up to
the date of payment, both days included, payable at Midrand to the credit of George
Russell, account number 876 223 987.
2. A guarantee in favour of MA Christian Attorneys for the amount of R38 532-55
minus interest on the amount of R141 467-45 at 14,25% calculated from January 5,
2014 up to the date of payment, both days included, payable at Centurion Standard
Bank, account number 1604 678 432.

If the transfer attorney has received the guarantees, he may feel comforted that the
purchase price has been provided for in full, and indeed as indicated:
On the date of registration, the interest on the first guarantee will have accumulated,
as the guarantee makes provision for the cash amount plus interest. The first
guarantee will therefore on the date of registration pay out more than the R141 467-
45.

The second guarantee makes provision for a capital amount minus interest. As
interest therefore increases on the first guarantee, it is diminished on the second
guarantee.

4.5 Receipt of guarantees

The guarantees received from the bond attorneys must be scrutinized in order to
ensure that guarantee 1 complies with the requirements of the existing mortgagee
and that guarantee 2 is in order to be paid into the trust account of the conveyancer.

The original guarantee in favour of the current bondholder must be sent to the
cancellation attorneys. The cancellation attorneys attend to the interests of the
existing bondholder and shall ensure the correctness of the guarantees.

The guarantee in favour of the conveyancer is kept on file and will be presented at
registration for payment.

5. DRAFTING OF THE DEED OF TRANSFER

The new deed of transfer can now be drafted. The conveyancer shall needd a draft
title deed if a mortgage bond is going to be registered on the property at the time of
registration in order to enable them to draft the necessary documentation.
When drafting the new deed it is important to ensure that the existing conditions are
transferred to the new title deed verbatim.
The conveyancer must also ensure that all previous endorsements in the existing
title deed are included in the new title deed. Conditions created in the power of
attorney must also be included in the new title deed.

6. LINKING
In order to register various transactions simultaneously, (in our example the transfer,
the registration of new bond and the cancellation of the existing bond) the
documents must be linked and handed in at the deeds office on the same day.
Linking implies that various documents are linked to each other. The registration of
one of them is then a precondition for the registration of any of the other documents.
Linking is indicated on the lodgement covers in which the different units are
submitted.

The aforementioned may be explained by way of the following example:

Mrs Smith sells her property to Mr Nkosi, which property is covered by a mortgage
bond in favour of ABSA, which bond now has to be cancelled. Mr Nkosi procures a
loan from Nedbank in order to purchase the property. A first bond in favour of
Nedbank shall therefore have to be registered.
The transfer of the property, the cancellation of the existing bond and the registration
of the new bond must be affected simultaneously. In this instance three sets of
documents together it‟s supporting documents shall be submitted. Each set shall
consist of the deed of transfer (T), the cancellation (BC), and the new bond (B).
As previously mentioned it may be possible that a different attorney’s firm submits
each of the various units. The deeds office then combines the units into one set. In
the example above where three units are linked with each other, the linking on all
three-lodgement covers shall be identical. This enables the deeds office to combine
the three units into one set. The linking shall then be as follows:
T SMITH / NKOSI 171
BC ABSA / SMITH 589
B NKOSI / NEDBANK 129

In the deeds office, every kind of transaction is identified with a particular code. In
the abovementioned example, the „T‟ indicates transfer, the „BC‟ the cancellation of
a bond and the „B‟ the registration of a new bond.
Following the codes, the respective parties involved in the unit will shortly be referred
to for identification purposes. Apart from the code the firm number with whom the
linking takes place should also be mentioned. Whenever deeds are submitted in a
set, they may not be submitted in any order. Although section 13 determines that all
the documents considered to be registered with the registration of the last document
in the set, certain units should precede others. If these units have been linked in an
incorrect order, the deeds office will reject the documents.

7. LODGMENT
Now the purchaser and the seller have signed all the documentation involved, the
clearance certificate has been obtained, the transfer duty receipt has been obtained,
the guarantees are in place and the new title deed has been compiled, the
documents may be lodged at the deeds office.

In the case of a normal purchase transaction, the following documentation will have
to be submitted to the deeds office:
(1) The new deed of transfer
(2) The current title deed
(3) The power of attorney
(4) The transfer duty receipt
(5) The clearance certificate

If the property is encumbered with a bond, the existing bond, together with the
consent for cancellation should be submitted in an additional cover.
If a new bond is registered on the property, the new bond, together with the
necessary power of attorney should be submitted in a separate cover.

Example of an ante nuptial contract:

Example of Section 29a Cooling of rights:
Lecture 3
THE POWER OF ATTORNEY AND THE DESCRIPTION OF THE
PARTIES
 Very seldom, if ever, will it occur that the owner appears before the registrar
 It is standard practice that a power of attorney is drawn up to be signed by the
seller
 This power of attorney accompanies the other relevant documentation to be
lodged at the deeds-office
 Regulation 44 determines that the power of attorney may be drawn up by a
conveyancer, attorney or notary
 Every power of attorney should contain a preparation clause
 The person as well as the capacity in which the preparation clause is signed
should be mentioned
 The person signing the preparation clause takes the responsibility as set out in
Section 15(A)(1) read together with regulation 44A
 Section 15A(1) provides that the person who prepares and signs the preparation
clause on a deed or document, for registration or filing purposes in a deeds registry,
accepts by virtue of signing it, the responsibility for the accuracy of those facts
referred to in regulation 44A, in such deed or document
 Regulation 44A - See document on click-up!
 NB: By virtue of regulation 44(5), the clause should, if signed by notary or an
attorney, be co-signed by a conveyancer
Examples:

 Special Power of Attorney

 In the case of a special power of attorney, the assignee is authorized to perform a
particular juridical act on behalf of the warrantor.
 If A sells his home to B, but grants C power of attorney to sign all documents on
his behalf, such power of attorney will be considered to be special power of attorney.
 General Power of Attorney- In the case of a general power of attorney the
assignee is granted authority to act in various actions on behalf of the principal. A
general power of attorney is therefore a bundle of special powers of attorney.
 No prescribed form pertaining to a power of attorney exists
 Apart from the date and place of execution of the power of attorney (reg 65(2)),
the power of attorney should also contain the following information;
 Transferor
 Transferee
 Property Description
 Purchase price/market value
 Date of transaction
 New conditions, if any.
 Section 95 provides that the power of attorney should be attested by two
witnesses above the age of 14 years, a magistrate, a commissioner of oaths, a
justice of the peace or a notary
 THE DESCRIPTION OF THE PARTIES IN DEEDS AND DOCUMENTS NB!
 See document: Description of the parties on click-up
Regulation 44A (click up)
Description of parties (click up)
Example of power of attorney (click up)

Lecture 4
STUDY UNIT 8 – DEED OF TRANSFER

1. INTRODUCTION
 The deed of transfer has a twofold purpose:
(a) It is the way of transfer through which the right of ownership in land is transferred
from one person to another
(b) It serves as proof of ownership on behalf of the owner

 Deeds of transfer should be drafted by a conveyancer (section 15 of the Deeds

Registries Act)

 Previously it was a condition that the conveyancer drafting the documents should
practice in the province where the land is situated

 Since 31 January 1997, a conveyancer may draft a deed of transfer for registration
in any deeds office within the Republic of South Africa regardless of which province
the conveyancer practices

 Deeds of transfer should be drafted in accordance to the format being prescribed

by the act and regulations (section 20 of the Deeds Registries Act)

Six kinds of deeds of transfer are prescribed in the regulations, which are:
a. Form E (the conventional deed of transfer)
b. Form F (the deed of transfer of division)
c. Form G (the deed of transfer on behalf of land that has been expropriated or land
being transferred in accordance with an act)
d. Form H (the deed of transfer at the execution of an order of the court)
e. Form CCC (transfer of initial ownership)
f. Form DDD (cost-effective transfers)

2. FORMALITIES

 When a deed of transport is compiled there are a variety of regulations that should
be taken into account.
 These regulations are not only applicable to deeds of transfer but also to all
documentation being submitted to the deeds office, with the intention of registration.

2.1. A4 size paper

 All deeds and documentation being submitted to the Deeds office should be on an
A4 sheet of paper of proper quality (regulation 20).

2.2 Writing
 All deeds and documentation should be in clear print or type writing, as the
majority of the documentation is currently stored on microfilm.
 All copies of documentation being submitted should also be very clear (regulation
20).

2.3 The top half section of the first page to remain clear
 Due to the fact that the registrar may add possible endorsements to the deeds, the
top section of the first page of such a deed should be left blank.

2.4 Margins
 Even though the majority of documents are currently no longer bound in, it is still
required that a margin of at least 4cm should be left on all pages, in order to
ascertain that no part is hidden. (Regulation 20.2)

2.5 Signing in black ink

 Only black ink may be used for the subscription and initializing of deeds and
documentation. Discretion has been ascribed to the Registrar to use any other ink
being of an expensive quality and being of such a colour density with which he may
be satisfied, to be approved.
 All essential changes or interlineations in deeds or documents may be certified
through the signature of the person whom has signed the deed or document as well
as the person attesting his signature (regulation 20(4).

2.6 Line through unused spaces

 A line should be drawn through all unused spaces in deeds. This is to ensure that
nobody could later add a stipulation in such an empty space. It is a common use that
the compiler of the deed or document should sign next to such a line. Regulation
44A(a)

2.7 Numbering of pages

 If a deed consists of more than one page, every page should be numbered
(regulation 22).

2.8 Side of the Paper

 Only one side of the page may be used to print or type the deed or document. The
backside of every A4 page is therefore left blank with the intention of leaving space
that the registrar may add endorsements thereupon.

2.9 Execution
 All deeds and documents should state the place and date where it has been
executed (regulation 25).

3. ANALYSIS OF A DEED OF TRANSFER

 The analysis of the deed of transfer is a simple deed of transport drafted according
to form E.

3.1 The Preparation Clause

 Every deed of transfer (as well as other documents such as certificate off
registered title and a bond(s)) should be drafted by a conveyancer. Such a
conveyancer should add a preparation clause in theright-handd top column of the
first page of such a document and sign it (regulation 43(1)).
 The registrar of deeds is prohibited (except for another act determining differently)
to attest, to undersign or to register, a deed of transfer (bond, title certificate or
certificate of registration), unless it has been drafted by a conveyancer (section 15).
 The conveyancer signing such a preparation clause does with the mere signing of
such a clause accept certain responsibilities. These responsibilities are set out in
Regulation 44A.

3.2 The Heading

 It is important to provide the deed of a heading to ensure that it may be identified

at first glance, for example the "deed of transfer” as opposed to for example a
servitude or bond.

3.3 The Preamble

 In this component, two aspects are referred to. In the first place, the preamble
refers to the so-called appearer. The appearer is the conveyancer appearing on
behalf of the transferor before the registrar of deeds to register the documents. Only
the complete names and surnames of the conveyancer should be mentioned.
 Together with the reference to the conveyancer, mention is made of the place
where and the date on which the conveyancer has been authorized by the transferor
to undersign the documentation on his behalf before the registrar.
 In the second place, a reference is made to the transferor. If the transferor has
personally signed the power of attorney, the complete particulars of the transferor,
whom will be discussed in particular below, will be mentioned.
 If the person who undersigned the power of attorney is already an agent of the
transferor, the complete particulars of the transferor, as well as the full names and
surname of the authorized agent, together with the full particulars of the plenary
power of attorney, the place where and the date on which the power of attorney has
been granted, should be mentioned.

3.4 The Causa clause – (Recital)

 Immediately following the introduction in the deed of transfer, the causa clause
follows. It is required that a suitable exposition of the character of the transaction, or
the circumstances causing the necessity, should be added to the deed of transfer
(Form E).
 The regulations do not stipulate the exact wording of the causa and it should be
compiled in discretion of the transferor.
 In the majority of the cases the practice has provided guidelines as to the way
certain causa clauses should seem like. Following below are a couple of examples of
the cases appearing the most:

3.4.1 Sales3.4.1 Sales

 "…… and the appearer declared that his principal had truly and legally sold on 4
March 2014 ..."

3.4.2 Donations
 "... and the appearer declared that his principal truly and legally donated on 4
March 2014 …"

3.4.3 Decree of Divorce

 "…… and the appearer declared that according to the stipulation of a divorce deed
of settlement, which was made an order of the High Court of South Africa (Gauteng
Division, Pretoria) on the 5th of March 2014 ….”

3.5 The vesting clause

 The vesting clause entails the description of the transferee/s. It is consequently a
description of the person (natural or juristic person) to whom the property is
transferred. (See document on click-up)

3.6 The Property Clause

 The conditions stipulated through the regulations seem to be the following:

3.6.1 Reference should be made to the registered number, if any, of the land (reg.28
(1)(b)). It should for example be described as:
i. Erf 3251
ii. Portion 1 of Erf 3251
iii. The remainder of Erf 3251
iv. Holding 162
v. The Farm Olifantshoek 173
vi. Portion 1 of the farm Olifantshoek 173
vii. Portion 5 (a portion of portion 1) of the farm Olifantshoek 173
▪ 3.6.2 The name of the registration division and Province in which the piece of land
is situated should also be mentioned. If the land I situated in a town, the applicable
registration division, the administrative district, as well as the name of such town and
province should be mentioned (regulation 28(l)(a)). In the old Transvaal (the
registration offices of the deeds-office of Pretoria and Johannesburg) no mention is
made of administrative districts, but merely of a registration division. Reference
should also be made to the extent of the land, which should be described in both
words and figures (regulation 29).

3.7 The extending clause

 Every title deed should, following the property description, contain an extending
clause, which essentially corresponds with form TT or UU (regulation 26 read
together with section 47(7)). These forms do not indicate exactly in which way the
extending clauses should be worded, due to the fact that various possibilities do
exist as to in which way they may be presented. Following below is a set of rules that
may be used as a guideline for the drafting of this extending clause:

▪ If land has never been registered before (for example, in the case of a subdivision
diagram as well as an Erf being indicated on a general plan) form TT should be
followed.
▪ If the land has been registered before, that means that the extending clause in the
current title deed is already in accordance with form TT, then form UU should be
adhered to in the new title deed.

 If there is no reference to the diagram or general plan in the current title deed, it is
not necessary to refer to it in the new title deed. If the diagram was not added to the
first title deed, but was filed in another place, reference should be made to the
extending clause of the first deed of transfer with the diagram relating to it.
 Examples of Extending Clauses – See document on click-up.
 NB for test / exam

3.8 Conditions
 All the conditions being applicable to the concerned erf at hand in the deed of
transfer is set out in this clause. Conditions are included in the deed of transfer
immediately after the extending clause (regulation 35.5).

Three categories of conditions should be discerned, which are:

3.8.1 Existing conditions
 These conditions appear in the existing title deed and should be transferred to the
new deed of transfer in the same language in which it appears on the current deed of
transfer. It should be noted that in some cases endorsements have been brought
onto the existing title deeds with new conditions. Such conditions should also be
transferred to the new deed of transfer.

3.8.2 New Conditions

 These are new conditions, which have been created and which should now for the
first time be included in the deed of transfer. New conditions may be created in
power of attorney or by way of a notarial deed. These conditions should comply with
section 63. An example of this is an usufruct created in the power of attorney.

3.8.3 General conditions

 In the majority deed-offices (Pretoria and Johannesburg included) a general
condition clause is included to make provision that conditions possibly being omitted,
will also be covered (regulation 35 (1)(c)).

3.9 The Divesting Clause

 In this clause the present owner is divested of his right of ownership. The wording
of this clause is prescribed in Form E. It is only necessary to refer to the complete
name and surname of the transferor.

3.10 The Consideration Clause

 In Form E it is a prerequisite that the purchase price should be mentioned in the
deed of transfer. It may occur that the property may be sold at a lower price than that
of the property's value.
 ln such a case it is the practice that the market value should also be mentioned, in
order to indicate on which amount transfer duty have been paid. If there is no
purchase price, as the causa of the transfer is not a sale, the value on which transfer
duty have been paid, should be mentioned.

3.11 The Execution Clause

 This is the clause in which the execution is noted by the conveyancer (or owner).
Execution takes place once the conveyancer (or owner) signs the deed in front of the
registrar and the latter then signs this as a witness (attest). Once the registrar signs
the deed, it serves a twofold purpose, namely that of attestation and registration.

Examples of extending clauses:

Examples for an erf being indicated on a general plan.
The first transfer
"As will appear from General plan 23/1999 and held by deed of transfer
T1713/1999".

For a subsequent transfer

"First transferred and still held by deed of transfer no T1713/1999 with General plan
23/1999 relating thereto".

For all subsequent transfers

"First transferred by deed of transfer T1713/I999 with General plan 23/1999 relating
thereto and held by deed of transfer T 436/2000.

Examples on behalf of a new subdivision with a new diagram for the subdivision

The first transfer

"As will appear from the annexed diagram S.G. no A 23/1999 and held by deed of
transfer T1713/1999".

For a subsequent transfer

"First transferred and still held by deed of transfer no T1713/1999 with diagram S.G.
no 23/1999 relating thereto".

For all subsequent transfers

"First transferred by a deed of transfer T1713/1999 with diagram S.G. no A 23/1999
relating thereto and held by deed of transfer T 436/2000.

Analysis of a deed on click up NB!

Lecture 5
TRANSFER DUTY AND VAT