Issue 35-2009

About this issue

Here follows a snapshot of important news, cases and legislative happenings in the second week of November 2009, which impacts on conveyancing and property law.
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AN OMBUD FOR SECTIONAL TITLE SCHEMES PROPOSED

Community Scheme Ombud Bill, 2009

In Government Gazette 32666 dated 30 October 2009, the Department of Human Settlements published the Community Scheme Ombud Bill for public comment and invited submissions on or before 30 November 2009.
The Bill aims to establish a dispute resolution service in respect of ‘community schemes’ which are defined to include sectional title schemes, share block developments and housing schemes for retired persons. It establishes a Community Ombud Service to adjudicate disputes that relate to the administration of any community scheme.
Once enacted, the new dispute resolution procedure will impact hugely on the practice of community scheme management and all role players (e.g. property practitioners, managing agents, sectional title owners, owners of shares in shareblock schemes, owners in retirement schemes and developers) will need to familiarise themselves with the content of this Bill.
The four-year-long efforts of The Department of Agriculture & Land Affairs and the task team it appointed (headed by Prof Paddock and Prof Van Der Merwe) to address the needs of owners and occupiers in such communal schemes, are applauded. Hopefully the Bill will travel swiftly through the parliamentary process.
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The Bill

MASTER’S OFFICE SOLVES STAMP DUTY PROBLEMS

The Stamp Duty Act, 77 of 1968 was abolished with effect from 1 April this year.

The scrapping of the Act follows on a general decrease in transactions that carry stamp duty liability.
Adhesive revenue stamps were however only demonetarised from 1 November 2009 to allow time for affected government departments to introduce alternative measures. Whilst there was some confusion during the first few days of November as to what procedure would be implemented at Master`s offices for the stamping of trust deeds and other documents, this has now been resolved by Circular 68/2009 issued by the Department of Justice and Constitutional Development.
The Circular proposes that Master`s fees collected in compliance with provisions of the Insolvency Act, Administration of Deceased Estates Act, Companies Act and the Trust Property Control Act are payable at any Magistrate’s Court or by way of electronic transfer to an account (the details of which are furnished in the Circular). When applying for documents, an applicant must furnish proof of payment together with a completed form. The provisions are effective as from 1 November 2009.
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The Circular

REGISTRAR`S CONFERENCE RESOLUTIONS

The 2009 Conference Resolutions taken after the recent Registrar’s Conference are now available.

These will be effective as from 02 January 2010 onwards and all practitioners need to take note thereof.
Some interesting Resolutions relate to the Conference’s ruling that:
  • rates clearance certificates are not required in vesting and expropriation transfers (see RCR5/2009 and see our discussion of the relevant case here);
  • where a deed of transfer or mortgage bond refers to a purchase price or amount borrowed in a foreign currency, the registration fee will be calculated at the exchange rate that applies on the date of registration (see RCR20/2009); and
  • an antenuptial agreement on behalf of spouses to a same sex marriage need not, for deeds office purposes, indicate whether the partners chose to solemnise their union as a Marriage or Civil Partnership (see RCR 53/2009).
Regrettably the Registrars decided not to follow the recent Witwatersrand Division judgment in Standard Bank v Hunkydory Investments 188 (Pty) Ltd . Here it was held, amongst other things, that it is not accurate to hold that mortgaging a property is the first step to alienating it. The latter view is the rationale for the Deeds Office’s requirement that in instances where an owner wishes to register a mortgage bond over property that is subject to a condition that restricts the owner’s right to alienate, the consent of the person in whose favour the restrictive condition is imposed must be obtained before registration can take place. The Conference however continues to maintain that such consent is necessary (see RCR6/2009).
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The Resolutions

EFFECTIVE CAUSE OF SALE PROVES EFFECTIVE

Daubern t/a Daubern Properties v Swart (8009/06) [2009] ZAGPPHC 137 (5 November 2009)

It is not unusual for a purchaser to delay for a while before acting on an introduction to a property or for competing offers of other interested buyers to be considered by the seller, in the meanwhile, thereby placing the initial introduction temporarily in abeyance. These facts alone do not disqualify an introduction from being the effective cause of a sale nor does the termination of the mandate of the agent who made the initial introduction.
This judgment demonstrates a factual situation in which a court found that an estate agent was the effective cause of a sale agreement and therefore entitled to commission as agreed in the initial mandate, although the parties ultimately concluded the agreement without the agent`s intervention.
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The Judgment
Summary of the Judgment
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STBB | Smith Tabata Buchanan Boyes` Property Law Service is compiled by Maryna Botha & Lizelle Kilbourn. Igqwetha Training Academy (ITA), a legal educational and training company, is a subsidiary of STBB. STBB | Smith Tabata Buchanan Boyes is a national South African law firm.
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