Professional Documents
Culture Documents
September 2016
Part 1
2 In favour of ABSA Bank Limited, for credit account Gawie le Roux Attorneys,
account number 9998887774, ACB code 163345 for the amount of
R380 000,00 less interest on the amount of R1 646 000,00 at a rate of 12,5%
per annum from 1 September 2016 until date of payment, both days
included, payable free of commission at Pietermarizburg.
1
A similar question was asked as Question 6 (Part 1) May 2009 for 10 marks.
1 The Former Portion 10 of the Farm Green Valley 249, of which the property
hereby transferred forms a portion, is subject to a servitude in favour of
Eskom to convey electricity over the property with ancillary rights, as will
appear from Notarial Deed of Servitude K328/1988S with diagram annexed
thereto.
Explanation of conditions
Condition 1: Although Portion 20 is not directly subject to the power
line servitude, it is subject to the ancillary rights contained
in the servitude. The condition must therefore be brought
forward into the deed of transfer and provided with an
appropriate qualification.
2
Similar questions were asked in Question 8 (Part 1) May 1997, Question 1
(Part 1) September 2004, Question 11 (Part 1) September 2007 and Question
5 (Part 1) September 2012.
The servitude of right of way has been omitted because the right of way is
along the western boundary of Portion 10, whereas Portion 20 is the eastern
portion of Portion 10. Portion 20 is therefore not affected by this servitude.
No servitude note appears on the subdivisional diagram and there are no
ancillary rights applicable to this servitude. [10]
2.2 Prepared by me
CONVEYANCER
Gabriël Jacobus le Roux
CONSENT TO PARTITION
I, the undersigned,
Amanda Els
Identity Number 360606 0018 08 1
widow
the holder of a life long usufruct over
½ (one half) share in Portion 10 of the Farm Green Valley 249
Registration Division J.Q, Province of Gauteng
In extent 500,0000 (five hundred comma nil nil nil nil) Hectares
By Virtue of Deed of Transfer T200/1989
do hereby consent to the partition of the said Portion 10 into two portions namely:
a) portion 20 (a portion of portion 10) of the Farm Green Valley 249; and
b) the Remaining Extent of Portion 10 of the Farm Green Valley 249
and that my usufruct shall apply and be registered over the said portion 20 (a
portion of portion 10) of the Farm Green Valley 249.
As witnesses
1
USUFRUCT HOLDER
2
Prepared by me
CONVEYANCER
Gabriël Jacobus le Roux
I the undersigned,
Richard Minnie in my capacity as the sheriff of the High Court, Cape Town,
duly authorised by virtue of a writ issued by the registrar of the court at Cape
Town on 12 July 2016
hereby make oath and say that:
1 Ryan Black
Identity number: 600722 0219 08 2
Unmarried, is the legal holder of mortgage bond B1234/2000, passed in his
favour by Syringa Investments CC.
3 The mortgagee has since disappeared and I was unable to trace the said
mortgagee or obtain possession of the aforementioned bond. The said
mortgage bond was either lost or destroyed and cannot be found despite
diligent efforts to do so on my part.
4 To the best of my knowledge the said bond has not been pledged and is not
being detained by anyone as security for a debt or otherwise.
3
Also asked in Question 2 (Part 1) September 2012 for 20 marks, Question 5
(Part 1) September 2007 for 20 marks and Question 4 (Part 1) May 1997 for
20 marks.
4
As a mortgage bond is regarded as movable and as a certificate by the sheriff
in terms of regulation 51(2) to the effect that he is unable to obtain
possession of the title deed may only be used in respect of the title deed of
immovable property, an application by the sheriff in terms of regulation
68(1) & (14) is required.
Richard Minnie
Signed and sworn to before me at Cape Town on 7 September 2016 by the
Deponent, who acknowledges that he knows and understands the contents of this
affidavit.
Commissioner of Oaths
5
Previously asked as Question 10 (Part 1) May 2000.
As witnesses:
1
2
R Minnie
6
You cannot say “consent to cession” as this is not a consent to the cession
but the cession itself.
Form WW CONVEYANCER
Monique Oosthuizen
I, the undersigned,
Allen Ashbury
Identity Number 600605 5054 081
unmarried
having applied for the issue of a Certificate of Consolidated Title in respect of
Erf 120 Hoekpunt
District of Kimberley, Northern Cape Province
Measuring 4 000 (four thousand) square metres
represented on consolidation diagram SG no 123/2016
And other land, do hereby apply for the consolidated land as represented on the said
diagram to be substituted for the aforesaid land mortgaged under the said bond.
As witnesses
1
2
A Ashbury
and I, the undersigned, Austin Powers, the signing officer of
First National Bank Limited
Registration number 1970/005832/06
duly authorised hereto by virtue of a resolution of the directors of the said bank, the
said Bank being the legal holder of the aforesaid bond, do hereby consent to the
substitution of the consolidated land as represented on the said diagram for the
aforesaid land mortgaged under the said bond.
As witnesses: 1
2
A Powers obo First National Bank Ltd
Prepared by me
Form WW CONVEYANCER
Monique Oosthuizen
I, the undersigned,
Allen Ashbury
Identity Number 600605 5054 081
unmarried
having applied for the issue of a Certificate of Consolidated Title in respect of
Erf 121 Hoekpunt
District of Kimberley, Northern Cape Province
Measuring 4 000 (four thousand) square metres
represented on consolidation diagram SG no 124/2016
And other land, do hereby apply for the consolidated land as represented on the said
diagram to be substituted for the aforesaid land mortgaged under the said bond.
As witnesses: 1
2
A Ashbury
As witnesses
1
2
S Stipinovich obo ABSA Bank Ltd
[18]
7
Also asked in Question 8 (Part 1) September 2000 for 35 marks. See Example
7 H in Part 4 of the Self-study notes for Attorneys.
CONVEYANCER
Gabriël Jacobus le Roux
DEED OF TRANSFER
that Erinda Frantzen appeared before me, the Registrar of Deeds at PRETORIA
she, the said appearer being duly authorised thereto by a power of attorney granted to
her by
WHEREAS the said late John Brown who died on 15 May 2000 and his surviving
spouse Mary Brown, to whom he was married out of community of property by
virtue of their joint will signed at Pretoria on 30 July 1995, massed their estates
and bequeathed the hereinafter mentioned property to their son Frank Brown,
subject to a life usufruct in favour of the said surviving spouse8 and subject to a
right of way servitude;
AND WHEREAS the said Mary Brown adiated under the will by Deed of Adiation
signed at Pretoria on 6 June 2000;
NOW THEREFORE the said Appearer in her capacity as aforesaid, did, by these
presents cede and transfer in full and free property, to and on behalf of
Frank Brown
Identity Number 720923 5067 084
and
Peggy Brown
Identity Number 791224 0007 085
Married in community of property to each other
8
The lifelong usufruct in favour of the surviving spouse is indeed referred to in
the causa clause, but this servitude must be created by means of a notarial
deed. However, if they were married in community of property, this same
servitude could have been created directly in the deed of transfer, by
referring to its existence in the causa clause and by quoting the complete
servitude in the conditional clause.
3 Subject to a right of way 10 metres wide, running parallel and along the
entire length of the southern boundary, which southern boundary is
indicated by the line CD on diagram SG No A188/1912 annexed to Deed of
Grant T303/1913, in favour of the farm Hillside 457, Registration Division
JR, Gauteng Province, as will more fully appear from Notarial Deed of
Servitude K /2016S.
5.3 1 Application for noting the lapsing of the usufruct in favour of Jeanette
Brown in terms of section 68(1) Act 47 of 1937.
2 Notarial Deed of Servitude of right of way in favour of the farm Hillside
457.
3 Notarial Cession of Usufruct in favour of Mary Brown in respect of the
farm Saxondrift.9
4 Deed of Transfer in favour of Frank Brown and Peggy Brown.
5 Deed of Transfer in favour of Pam Brown. [5]
9
The lifelong usufruct in favour of Mary Brown must be created by the
executor by means of a notarial deed, because the spouses were married
out of community of property. That is why the notarial deed links prior to
the deed of transfer so that it can be created first. After registration of the
servitude, the registrar of deeds will allocate a number thereto which
number will be inserted in the conditional clause of the deed of transfer
where a special space is left for this insertion.
6.2 The two banks must respectively consent to the release of one of the
subdivided units from the operation of their respective bonds. Nedbank should,
for example consent to the release of the newly subdivided unit 201 from the
operation of its bond and ABSA in turn must consent to the release of the newly
subdivided unit 202 from the operation of its bond. The bond of Nedbank will
then continue to exist over unit 202 and the bond of ABSA over unit 201. [6]
10
Also asked in Question 6 (Part 1) September 2008 for 30 marks.
Form O CONVEYANCER
Erinda Frantzen
Application under section 22(1) 11
of the Sectional Titles Act, 1986
We, the undersigned
Mandla Mekwe
Identity Number 750808 5432 08 7
and
Ben Burger
Identity Number 601215 5001 08 2
partners in a civil partnership in community of property registered in terms of the
Civil Union Act 17 of 2006 12
do hereby apply to the Registrar of Deeds at Johannesburg for:
11
Form O to the Sectional Titles Act is used. Also see Question 2, September
2007 (part 1).
12
The parties entered into a civil partnership and not a marriage and as they
did not enter into an antenuptial agreement before entering into the civil
partnership, they have a civil partnership in community of property. See
Part 3, Chapter 12, “Civil Unions”.
do hereby consent to
1 the registration of the sectional plan of subdivision and the subdivision of section
132 into sections to be known as sections 201 and 202 in the scheme The
Waldorf, subject to the abovementioned bond in accordance with Sectional Plan
SS No. to be registered;
2 the issue of certificates of registered sectional title in respect of section 201 and
202 and the undivided share in the common property attached to such sections
according to the participation quotas reflected on the said sectional plan; and
3 the substitution of the new sections in lieu of section 132 as security under the
bond and the endorsement of the abovementioned bond to the effect that it
attaches to the sections and common property as shown on the said sectional
plan.
As witnesses:
1
2
CONVEYANCER
Erinda Frantzen
Consent 13
I the undersigned
Maud Sumner
in my capacity as signing official and duly authorised thereto by virtue of a
resolution of the board of directors of
ABSA Bank Limited
Registration number 1962/000523/06
do hereby consent to
1 the registration of the sectional plan of subdivision and the subdivision of section
132 into sections to be known as sections 201 and 202 in the scheme The
Waldorf, subject to the abovementioned bond in accordance with Sectional Plan
SS No. to be registered;
2 the issue of certificates of registered sectional title in respect of section 201 and
202 and the undivided share in the common property attached to such sections
according to the participation quotas reflected on the said sectional plan; and
3 the substitution of the new sections in lieu of section 132 as security under the
bond and the endorsement of the abovementioned bond to the effect that it
attaches to the sections and common property as shown on the said sectional
plan.
13
Although the two banks consent to the same thing, separate consents need
to be drafted for each bond.
2 ANN MARTIN
Identity number 700209 0173 08 8
and
PETER MARTIN
Identity number 691030 5019 08 8
Married in community of property to each other [3]
7.3 and the mortgagors acknowledged themselves to be lawfully and true fully
indebted to and on behalf of
(“the Mortgagees”)
in the sum of R100 000,00 (one hundred thousand rand) arising from and being
money lent and advanced whereof the sum of R60 000,00 was advanced by the
said MARY HOLMES and the sum of R40 000,00 was advanced by the said
ANN and PETER MARTIN [2]
7.4 Interest is payable on the outstanding amount at 13% per annum from date of
registration of this bond. [1]
7.5 The mortgagor shall repay the capital and the interest in monthly installments of
not less than R2 500,00 each, the first payment being due on the first day of the
month following registration of this bond. All payments shall be appropriated
first to interest and only thereafter to capital. [1]
1.6 The capital and interest shall be repayable on the 5th anniversary of the date on
14
The exact same question was asked as Question 5 (Part 1) September 2006
for 30 marks and Question 7 (Part 1) May 2001 for 30 marks. In our view
insufficient marks were allocated for questions 7.3 to 7.6.
8.1 Prepared by me
CONVEYANCER
Erinda Frantzen
Form H
Deed of Transfer
Peter Philips
Identity number 850315 5879 08 7
Unmarried
AND the said appearer declared that the said Peter Philips on 31 August 2016 truly
and lawfully sold the property mentioned hereinafter to the transferee mentioned
hereinafter for the sum of R200 000,00 (two hundred thousand rand) including the
exclusive use areas Parking Bay P5 and Garden Area G5 which are part of the
common property.
AND that she in her capacity aforesaid, did, by these presents, cede and transfer, in
full and free property, to and on behalf of
Janus de Villiers
Identity number 850830 5369 08 7
Unmarried
A unit consisting of -
a) Section No. 5 as shown and more fully described on Sectional Plan No. SS
46/2014 in the scheme known as Eagles View in respect of the land and
building or buildings situated at Durban, in the eThekwini Metropolitan
Municipality of which section the floor area according to the said sectional plan
is 132 (one three two) square metres in extent; and
15
This is the description in the case of -
a) a first transfer of a new unit from the developer to a private purchaser; or
b) units registered before 1992 in terms of a Certificate of Registered Sectional
Title and still being held thereby.
i) the servitudes, other real rights and conditions, if any, as contained in the
schedule of conditions referred to in section 11(3)(b) and the servitudes
referred to in section 28 of the Sectional Titles Act, 1986 (Act No. 95 of
1986);
WHEREFORE all the right, title and interest which the transferor hereto had to the unit
aforesaid is renounced and, in consequence it is also acknowledged that the transferor
is entirely dispossessed of, and disentitled to, the same, and that, by virtue of these
presents the aforesaid transferee now is entitled thereto, the State however, reserving
its rights.
In my presence
...................................................... .................................................
Registrar of Deeds Appearer
[10]
Although such real right of extension has not been disclosed to me in the deed of sale
dated 31 August 2016, I declare that I waive my right to annul the agreement of sale.
As witnesses
1
2
J de Villiers
[5]
8.3 Future Bank must sign a consent to release of the unit and the exclusive use
areas from the operation of the bond.
1 A unit consisting of -
a) Section No. 5 as shown and more fully described on Sectional Plan No. SS
46/2014 in the scheme known as Eagles View in respect of the land and
building or buildings situated at Durban, in the eThekwini Metropolitan
Municipality of which section the floor area according to the said sectional plan
is 132 (one three two) square metres in extent; and
b) an undivided share in the common property in the scheme apportioned to the
said section in accordance with the participation quota as endorsed on the said
sectional plan.
As witnesses:
1
2
[10]
8.4 Sequence of transactions and documents to be lodged at the deeds
registry
5 SB: J de Villiers / Future Bank (new bond registration over unit and
exclusive use areas)
sectional bond [10]
8.5 17 It would depend on what the circumstances are at the time when I discover the
oversight. If I discover it at the time when the developer is still the owner of
other units in the scheme (in other words, if he is still a member of the body
corporate), I would do a cession of the Parking Bay P5 from the developer to
the purchaser who bought unit 5 from the developer, setting out the full facts in
the causa. If the purchaser has already sold and transferred the unit to a
subsequent purchaser, section 14 read in conjunction with section 33 of the
16
Note that this certificate should be lodged in triplicate as from 7 October
2016 (the date of the coming into operation of the Sectional Titles Schemes
Management Act).
17
Also see Question 4 (Part 1) September 2013 for 10 marks and Question 4
(Part 1) May 2008 for 10 marks.
If the developer is no longer a member of the body corporate,18 at the time when
I discover the oversight, the exclusive use area vests in the body corporate (free
from any mortgage bond). The body corporate must thereafter apply to the
Registrar of Deeds for the issue of a certificate of real right of exclusive use area
whereafter the exclusive use area can be ceded to the latest owner of the unit.
[5]
Question 9 - Model answer [12]
18
In other words, if the developer is not an owner of a unit anymore and the
real right of extension has lapsed or has been exercised in full.
CONVEYANCER
Monique Oosthuizen
Application in terms of Section 58(2)
of the Deeds Registries Act 47 of 1937
I, the undersigned
Thandi Molefe-Ponti 19 (formerly Molefe)
Identity number 600822 0219 08 2
Married out of community of property
do hereby apply in terms of section 58(2) of the Deeds Registries Act 47 of 1937 to the
Registrar of Deeds at Cape Town, for the endorsement of the Deed of Transfer
T9133/2010 in respect of
Erf 525 Hillcrest
Situate in the City of Cape Town, Cape Division, Province Western Cape
Measuring 834 (eight hundred and thirty-four) square metres.
Whereas the creditors have returned the abovementioned property to me, free of the
insolvent estate, and whereas the Master of the High Court has consented thereto, I
hereby apply for endorsement of the said title deed to the effect that the said
property has been restored to me and that I may now freely deal therewith.
I further declare that the value of the property hereby transferred is R1 200 000,00
(one million two hundred thousand rand)
T Molefe-Ponti
19
Where an insolvent is rehabilitated by composition in terms of section 119 of
the Insolvency Act, either the trustee or the rehabilitated insolvent may
apply for the restoration of the rehabilitated insolvent’s property into
his/her name.
CONVEYANCER
Erinda Frantzen
Application in terms of Section 16 20
of the Deeds Registries Act 47 of 1937
I, the undersigned
Koos Koekemoer
in my capacity as administrative officer in the Department of Agriculture
duly authorised thereto by virtue of a special power of attorney signed at Cape
Town on 15 May 2015 granted in my favour by the Minister of Agriculture
do hereby declare that -
2 I hereby apply to the Registrar of Deeds at Cape Town for the endorsement of
Deed of Transfer T1892/1988 in terms of section 16 of the Deeds Registries
Act, in order to register the transfer of the aforementioned land in favour of the
State.
20
The application must contain the following information:
the authority in terms of which the rights have been acquired, property
description of the expropriated land, name of registered owner and his title
deed number, a statement that the State has in terms of a particular
authority acquired all the land held by the title deed.
10.3 Ownership vests immediately when the expropriation comes into operation, i.e.
on the date stated in the expropriation notice. [1]
10.4 According to section 31(5) the expropriating authority may only, inter alia, create
a real right (right of way in this case) over the expropriated land if such land has
been transferred to it formally or in terms of section 16. A section 16 transfer
cannot be done in respect of a portion only where such portion does not have its
own title deed. The registered owner can apply for the issue of a CRT ito
section 43 in respect of the expropriated portion. There will then be a separate
title deed for that portion and the state can then take transfer of that portion by
using the second provisio to section 16.21 [2]
TOTAL: [200]
21
As the question does not insist that the less costly method should be utilized,
it is also possible to transfer the portion of the expropriated land by means
of a formal deed of transfer drafted in accordance with Form G.
September 2016
Part 2
2.2 Section 68(1) of the Deeds Registries Act requires a written application to be
lodged at the deeds registry by or on behalf of the owner of the land
If the condition pertains to a registered lease, the registered owner must apply in terms
of section 78 of the Deeds Registries Act to the Registrar of Deeds to endorse thte title
deed of the land to the effect that the lease has terminated.
Yes. He must however obtain the consent of the Master of the High Court in terms of
section 80bis of the Insolvency Act 24 of 1936. The provisional trustee must make
written recommendations to the Master, stating reasons for his recommendations. If
the property is subject to a right of preference, the Master may not authorise the sale
unless the person who has the right of preference has given his consent or he has
been guaranteed against loss.
5.1 Section 35A places an obligation on any purchaser who pays a consideration in
excess of R2million to a non-resident seller of any immovable property in South
Africa to withhold a certain percentage of the purchase price (which is
22
Previously asked as Question 17.2 (Part 2) September 2010 for 2 marks,
Question 3.3 (Part 2) May 2005 for 2 marks, Question 10 (Part 2) September
2002 for 4 marks and Question 6.2 (Part 2) May 2000 for 2 marks.
5.2 Yes. In the case of a company 7,5% of the purchase price should be so
withheld and in the case of a trust, 10%. [2]
5.3 The conveyancer has an obligation to inform the purchaser, in writing of the fact
that the seller is a non-resident for tax purposes in South Africa before any
payment is made to the seller and that section 35A may apply to the transaction.
If the conveyancer knows or reasonably should have known that the seller is a
non-resident and fails to comply with this legal obligation, the conveyancer will
be jointly and severally liable for the payment of the amount which the
purchaser is required to withhold and pay over to SARS. The liability of the
conveyancer is, however, restricted to the amount of remuneration or other
payments receivable in respect of services rendered relating to the disposal of
the relevant property. [3]
6.1 By a Notarial Deed of Cession of Usufruct the executor in the estate will first
cede the usufruct over a half-share in the property to X. Thereafter the whole
property is transferred to both X and Y, Y’s half-share being subject to the
usufruct created in the Notarial Cession [6]
6.2 Have X and Y pass the bond over the property in accordance with the
provisions of Section 69(3). X would pass the bond in her capacity both as an
owner of a half-share and as an usufructuary in respect of the other half-share.
Y would pass the bond in her capacity as the bare dominium owner of her half-
share. This, of course, apart from being cheaper than arranging for X to waive
preference in respect of her usufruct, also more accurately reflects the reality of
the situation - i.e. both X and Y are joint borrowers. [6]
23
Also asked as Question 2 (Part 2) May 2003 for 8 marks.
24
A similar question was asked in Question 9 (Part 2) September 2014 for 5
marks.
An attorney must keep records for a period of at least five years from the date on
which the business relationship with a client has been terminated or from the date on
which a transaction has been concluded. [6]
The four children will be jointly entitled to the one-half share of the deceased. In other
words each of the four children will be entitled to a one-eighth share in the property.
The surviving spouse will be entitled to the other one half share in the property. I will
not create the usufruct. The surviving spouse will only be entitled to the usufruct if she
adiated.
Yes, section 34(1A) of the Deeds Registries Act makes provision for any person who
is the owner of the whole of or a share in a piece of land to apply for the issue to him of
a certificate of registered title of any fraction of his or her undivided share in such land.
25
Also asked as Question 13.2 and 13.3 (Part 2) September 2014 for 8 marks.
In the name of the deceased by reciting his full names and surname, identity number
and marital status (in this case “unmarried) and in brackets thereafter “(now
deceased)”
14.1 No. He must first take out a Certificate of Registered Title for each of the erven
before consolidation may take place - (section 43(5)(a) of the Deeds Registries
Act.26 [2]
14.2 i) a) The owner must first apply for the issue of a certificate of
registered title in respect of the erven to be consolidated - (section
43(5)(a)).
b) The bank must consent to the release of these two erven from the
operation of the bond.
c) The owner must apply for the issue to him of a Certificate of
Consolidated Title - (section 40).
26
Previously asked in Question 4.2 (Part 2) September 1997 for 2 marks.
27
Previously asked in Question 5 (Part 1) September 2000 for 8 marks.
Question 15 29 [14]
28
Previously asked as Question 3 (Part 2) May 1998 and Question 17 (Part 1)
September 2009 for 4 marks.
29
Questions 15.1-15.3 were previously asked in Question 7 (Part 1) May 1997
for 10 marks and Question 4 (Part 1) September 2012.
15.4 The preparer accepts responsibility that from perusal of the documents
evidencing the appointment to the executor, that -
i) such person has in fact been appointed in that capacity;
ii) is acting therein in accordance with the powers granted to him; and
iii) that any security required has been furnished to the Master. [3]
Question 16 [6]
The usufructuary can waive preference of her usufruct in favour of Security Bank’s
bond. Preference can be waived in one of two ways: by means of a separate
unilateral notarial deed by the usufructury or by inserting the waiver into the new bond
itself. In this instance the second option would be the cheaper one. The waiver is
done by inserting a renunciation clause at the end of the bond before the execution
clause. The bond must be made subject to the usufruct by specially referring thereto
and then it must be indicated that preference in respect thereof is being waived. The
usufructuary has to personally or through a conveyancer appear before the registrar of
deeds to waive preference. In the event that the usufructuary appoints a conveyancer
for this purpose a special power of attorney by the usufructuary should also be lodged
together with the new bond.
TOTAL: [100]
Erinda Frantzen
BCom(Law)(UP) LLB (UNISA)
Attorney, Conveyancer and Notary of the High Court of South Africa
and
Gawie le Roux
BA(Law)(UP) LLB (UP) BA Honours (UNISA)
Attorney and Conveyancer of the High Court of South Africa
and published by
PO Box 74047
Lynnwood Ridge
0040
SOURCES