Nosipho Nomusa Dladla

Student number:42330726

LPL 4805 May/June Examination

26 May 2023

Question 1

1.1.1 A trust may be defined as a concept of law where a person or body as trustee,
in accordance with formulated prescription of another person or body is the owner or
person entitled to the trust assets subject to the obligation to apply assets of the
trust, exclusively for the benefit of specific to achieve a personal aim.

-A trust always includes three parties, the founder(s), the trustee(s) and the
beneficiary(ies). A trust must be established in one of the following ways :

(a)in Inter vivos trust a founder of a trust may create a trust during his/her lifetime
where he or she transfers assets during his or her lifetime to a trustee to control and
administer in favour of the beneficiary. The trust is established when the founder and
the trustee conclude the agreement, or at such later time that they may determine.
An inter vivos trust may also be created in an antenuptial contract.

(b)Mortis causa trust may be created in terms of a provision in a will and comes into
operation on the death of the testator. A testamentary trust may also be included in
an antenuptial contract.

1.1.2 In terms of section 4 of the Trust Property Control Act 57 of 1988, a trustee
may not act as such before a letter of authorisation has been issued by the master.

1.1.3 A trust must function as an independent, autonomous entity.

-The founder must have the intention to create a trust

-There must be a clear separation between the estate of the founder and the trust
assets

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-The trust assets must be Cleary circumscribed, be it movable or immovable,
corporeal, or incorporeal

-A clear and binding duty to assign the assets to the trust, and to allow the trust to be
managed by the trustee, must be created

1.2 A trust may be terminated if such provision is made in the trust document, the
founder ,trustee and beneficiaries all agree to the termination or in the case where
the court is of the opinion that the deed of the trust contains a provision that is
contrary to the public interest or which may prejudice the interest of the beneficiaries
or is against the intended aim of the founder.

1.3 Notary has to satisfy himself or herself of the identity of the signatory.

(b)X must either sign the document in the presence of the notary or acknowledge
his/her signature if the document is already signed.

(c the notary will authenticate the document by attaching a certificate to the

document, by which he/she verifies the authentication of the signature of the person
signed the document and affixing his or her seal to the signed document.

Question 2

2.1 According to section 3 of Act 70 of 1970 agricultural land may not be subdivided
and an undivided share in agricultural land which has not previously belonged to
someone may not be transferred to a person without the consent of the minister.

section 3(c) the further reduction of an undivided share in agricultural land. As a

result it is possible that a co-owner can be able to transfer a part of his or her
undivided share to the remaining co-owners without obtaining the permission from
the minister, provided that concurrently the transfer, of a certificate of registered tittle
in terms of section 35 of the Deeds Act is taken out according to each co – owners
total undivided share in the land. This increases the shares of the remaining owners

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and that also prevents the newly acquired share from being dealt with separately.
The effect of the will, will not be carried out without Minister’s consent. However, they
can be able to redistribute. And agree that the land will be transferred only to one
person or transferred to the company where the heirs are shareholders equally.

According to section 5 the executor is obliged to sell the land if the Minister
permission is not obtained and if the heirs are not able to reach an agreement.

According to section 6a the registration of a servitude, unless in exceptional

circumstances, is also regarded as a division of agricultural land.

In the case where X was married in community of property with his wife, the usufruct
will have been registered over the entire property. And the will would have had effect
without the consent of the Minister in terms of the usufruct.

If the servitude of aqueduct is narrower than 15 meters, it may be registered without

the consent of the minister.

Therefore may transfer the farm to his daughter, however the farm Kraifontein cannot
be divided and an agreement will have to be reached for one son to get a portion in
money that is equal to the half share value of the farm.

2.2 Y will be liable to transfer duty on the full value of the farm, in terms of section
9(e)(ii) X heir is exempted from paying transfer duty, regardless of whether his
mother waives her usufruct or after transfer of the farm to the heir’s name.

2.3 If both parties agree to such agreement, this agreement must be explicitly stated
in the deed, setting out the rights and obligations of both parties, and it must be
reasonable and in accordance with the law .

Question 3

3.1 (a) A special notarial bond in terms of which X delivery vehicles are specifically
hypothecated and are each individually described in such a manner that they readily

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recognisable at the time of registration, may be registered to fall within the ambit of
Security by means of Moveable Property Act 57 of 1993

A general notarial bond in terms of which X stock in trade are hypothecated in

general may also be executed and registered.

(b) In special notarial bond in terms of Act 57, Y obtains a real security right on
registration of the bond without the vehicles being delivered to him or her

In general notarial bond, Y obtains a real security only on attachments of the goods
as per the court order.

© The notarial bond should be preferable registered in all the deeds registries in the
Republic of South Africa. The registration deeds registry in Cape town the place
where X has its registered address would be sufficient to afford Y the cover in
respect of the whole Republic.

(d) the notarial bond must be registered within 3 months after the execution by the
parties or within such extended period as the court may allow.

3.2 An application must be made by the parties to High Court for the condonation of
the late lodgement and registration of the antenuptial contract. The application has to
be accompanied by the declaration under oath by the notary confirming that the
contract was executed before solemnisation of the marriage. The High court may
then extend the period for registration. The original contract executed before the
marriage and now a new contract, then must be registered within the extended
period.

Question 4

4.1 the spouses may have to enter into postnuptial contract with the permission of
the court, and jointly bring the application to the high court to modify their
matrimonial property dispensation in terms of section 21 of the Matrimonial Property

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Act .The spouses must convince the court that there is a good and justifiable reason
of the application ,creditors of both spouses were notified of the proposed
modification of matrimonial property dispensation and no other person will be
prejudiced by the modification .

4.3 The preparation certificate must be signed by a notary, attorney or conveyancer.

The power of attorney has been signed by a notary; a practicing conveyancer must
co-sign the preparation certificate which serves as confirmation that the notary is a
practicing notary .

The registrar has discretion to waive this requirement if the preparation certificate
has been signed abroad.

Question 5

5.1 The antenuptial contract may be amended after registration by agreement

between parties, on condition that the marriage has not yet been solemnised.

The amendment must be registered in the deeds registry to be enforceable against

third parties.

After solemnisation of marriage, the contract may be amended only in terms of court
order.

5.2 where applicable comply with formal prescribed statutory requirements

The grantor must have legal capacity.

The execution must be physical possible.

Be juristically possible.

And be legal.

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