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Coetzee-attorneys-conveyancingCOETZEE ATTORNEYS ACADEMY – JANUARY 2016
SUBJECT: CONVEYANCING UPDATES
PRESENTED BY: NICOLA HORSTINK

CONVEYANCING UPDATES

Conveyancing, like any other field of our Law is ever changing and evolving. For every Practitioner and secretaries alike it’s of the utmost importance to keep up to date with all new developments in practice and procedure.
The following is a summary of new developments in the Conveyancing field:

1. PURCHASE PRICE AND VAT ON THE PURCHASE PRICE OF A PROPERTY

Section 64 of the Value-Added Tax Act, No 89 of 1991 determines that any price charged by a vendor in respect of any taxable supply of goods or services shall, for the purposes of the Act be deemed to include any tax payable in terms of Section 7(1)(a) in respect of such supply, whether or not tax has been included by the vendor in such price or not.

In a contract it is often stated that the Purchase Price of a Property is “including VAT” or “VAT will be added to the Purchase Price (if any)”. Should the Offer to Purchase or Sale Agreement not mention VAT, the price is for VAT purposes deemed to include the VAT charged under section 7(1)(a) of the Act.

Conveyancers and Estate Agents are therefore urged to draft their contracts correctly and convey the correct information in the deed of transfer and supporting documents.

2. NATIONAL CREDIT ACT
In terms of a recent judgement of Van Heerden v Nolte (19428/11) 2014 ZAGPPHC 12; 2014(4) SA 584(GP) it was held that where money is lent to anyone (as part of a property transaction or not) and the total amount of your loan is more than R500 000.00 then in terms of the NCA (National Credit Act) the lender must register as a credit provider. Failing to register as a credit provider will render the loan agreement as unlawful and void.
The NCA’s registration requirement does not apply to only those who make a business out of providing credit, but also applies to any person lending money.

3. MUSLIM MARRIAGES
In terms of the Marriages Act 25 of 1961 a Muslim marriage was previously not recognized as having the same status of a Civil marriage.
As from 1 May 2014 an Imam, who has been duly registered as a marriage officer in terms of the Marriage Act, may now solemnize a Muslim marriage.
The Proprietary consequence of a Muslim marriage, so solemnized, will now be regarded as a civil marriage in terms of the Marriage Act. This means that such a marriage will be in community of property, unless the spouses have entered into an ante nuptial contract excluding the community of property regime, with or without the inclusion of the accrual system.
This does however NOT mean that all Muslim marriages are now valid. Muslim marriages not solemnized before a registered Imam will still be regarded as “unmarried”.
From a Conveyancing perspective, a marriage certificate will be required to prove whether the marriage is valid or not and the Parties will then be described in deeds and documents as married in or out of community of property.

4. VALIDITY OF AN ANTENUPTIAL CONTRACT
Section 10 of the Recognition of Customary Marriages Act 120 of 1998 allows parties who have entered into a customary marriage, to “convert” such marriage into a civil marriage, governed by the Marriage Act of 1961. Such “converted marriage” remains a marriage in community of property and cannot be converted into one of out of community of property by the mere entering into of an ante nuptial contract, prior to the solemnization of the “conversion” before a marriage officer, Where parties are desirous to change their matrimonial property regime, from in community of property to out of community of property, they must jointly approach the High Court for an order in terms of Section 20 or 21 of the matrimonial Property Act 88 of 1984 to effect such changed.

5. Customary marriage
All monogamous (only one spouse) customary marriage entered into before or after the coming into operation of the Recognition of Customary Marriages Act 120 of 1998 is marriages in community of property, unless an ante nuptial contract was entered into and registered at the deeds Registry. Polygamous (more than one spouse) customary marriages are governed by order of court or customary law, but at the best deemed marriage out of community of property.
The non-registration of a customary marriage does not invalidate such a marriage, however from a property law perspective one would always insist on proof or registration of the marriage to prove that a valid marriage subsists. Alternatively, an affidavit must be provided that the person is unmarried and that he never entered into any negotiations, in terms of the customs and usages of the indigenous people of South Africa, resulting in a marriage.

Note on Customary marriages:
– Two woman or men can’t enter into a customary marriage;
– If it’s not your customs where the marriage is negotiated and celebrated, then the marriage won’t be classified as a customary marriage;
– Can a white and black person enter into a customary marriage? Yes, possibly if the marriage is negotiated and celebrated.

6. THE LEGAL CONSEQUENCES OF A MARRIAGE CONCLUDED OUTSIDE OF SOUTH AFRICA
The formal validity of a marriage is determined by the law of the place where the marriage is solemnized. This however, does not imply that the law of the country where the marriage was solemnized governs the legal and proprietary consequences of such marriage.
In terms of the matrimonial Property Act, where the husband to a marriage is domiciled in South Africa at the time of conclusion of the marriage, such marriage I one of in community of property, in the absence of the execution of a valid ante nuptial contract.
The matrimonial regime is therefore governed by the law of the husband’s domicile at the time of the marriage, and that it is not governed by the law of another domicile which he then intends to acquire immediately or within a reasonable time after his marriage.
Presently uncertainty prevails as to whose domicile will be the deciding factor where a civil union is concluded. Another however prevents spouses to a civil marriage, where the husband is domiciled in a foreign country, from entering into an ante nuptial contract regulating the consequences of their marriage and effecting the registration thereon in South Africa. However, this does NOT result in the marriage being one of out of community of property. The Parties must still be described as “married which marriage is governed by the laws of (name of country).

7. PROHIBITION TO AFFORD AN OPTION TO PURCHASE A PORTION OF AGRICULTURAL LAND
No sale agreement/Offer to Purchase inclusive of an option for the purchase of an undefined portion of agricultural land may be concluded without prior written consent of the Minister being obtained.

8. PROVIDING OF ELECTRIC COMPLIANCE CERTIFICATES FOR SECTIONAL TITLE TRANSFERS
The regulations promulgated in terms of the Occupational Health and Safety Act which became operative from 1 October 2012 made it compulsory that an Electric Fence System Certificate is issued in terms of an electric fence system – Sectional Title Units.
The liability of a Seller in terms of Section 22 of the Act to furnish an EFSC upon the sale of a sectional Title section or unit can be shifted from the seller to the purchaser by agreement. It would then be the responsibility of the purchaser to obtain an EFSC.
It is therefore of utmost importance that the Agreement of Sale/Offer to Purchase clearly states who is responsible for obtaining a valid EFSC. The validity of an EFSC is currently 2 (two) years.

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