FREQUENTLY ASKED QUESTIONS

Each matter is dealt with on a case-by-case basis. A transfer could take between 6 to 12 weeks from the date of receipt of the instruction to pass transfer as clearances are required from the City Council. Depending on whether we are dealing with sectional title scheme and/or or homeowners associations, clearances will also be required from the managing agents of such schemes. Given that most purchasers obtain mortgage finance to fund their purchase and that the bond process also takes time, this could cause a delay in transfer as most financial institutions will not allow lodgement of bond documents to take place unless the documents have been checked by their staff internally.

There is no firm rule that dictates the fees that conveyancers are obliged to charge. However, the Law Society has set down a guideline of fees which is based on property/bond values. The higher the property/bond value, the higher the fee, Most conveyancers have subscribed to this guideline.

Either transfer duty or VAT is payable to the Receiver of Revenue on all acquisitions of immovable property. If the Seller is a VAT vendor, VAT is payable, however, if the Seller is not a VAT vendor, Transfer Duty will be payable. For properties acquired after 1 March 2020, the following Transfer Duty rates apply:

A voetstoots clause is a provision typically found in an offer to purchase immovable property, which stipulates primarily that the purchaser buys the property from the seller “as it stands”. This means that the seller is indemnified against claims for damages which the purchaser may claim in respect of any defects on the property, whether patent or latent (subject to the seller disclosing all defects that he is aware of or reasonably ought to be aware of).

Defects are normally regarded as being of two kinds i.e. latent or patent. Patent defects are those that can be reasonably discovered during a purchaser’s inspection of the property and are often visible for example, broken windows, cupboards or cracks in paintwork or walls. Latent defects are those which could not be discovered during a reasonable inspection by a purchaser before entering into an agreement of sale for example structural issues with the foundation, walls, undetected damp or illegal building work.

It is possible for a seller to know of a defect in their property and intentionally not disclose the defect to the purchaser. The seller’s failure to disclose the defect could equate to fraud and in some cases, this may result in a reduction of the purchase price or even cancellation of the agreement of sale.

A non-revocation clause is found in most agreements, the essence of which is to protect the parties from any potential dispute concerning any changes made to an agreement. It typically stipulates that no changes to an agreement shall be binding on the parties unless reduced to writing and signed by the parties (to confer agreement). Simply put, one party cannot make any changes to an agreement unless both parties agree and then, that agreed change is confirmed in writing and signed by the parties.

An antenuptial contract is a contract entered into prior to the marriage being solemnized. A post nuptial contract is entered into pursuant to an application to Court requesting the leave of the Court to amend the existing matrimonial regime i.e. can only be entered into if a Court has Ordered the change in the matrimonial regime. Both contracts are however entered into before a Notary Public. Cognisance must be taken of Customary Marriages which are regulated by the Recognition of Customary Marriages Act, 120 of 1988, which stipulates in Section 7(2) that any customary marriage concluded between one man and one woman, after this Act came into effect, shall be a marriage in community of profit and loss, unless the parties specifically contract out of this regime by means of a registered Antenuptial Contract.

Matrimonial Regime refers to the proprietary rights applicable to marriages concluded in South Africa. Matrimonial regimes in South Africa are In Community of Property or marriages Out of Community of Property, with marriages Out of Community of Property being split into two categories. The Matrimonial Property Regime Act, 84 of 1988 governs these regimes. It is important for prospective spouses to be made aware of the matrimonial regime and consequences that will apply to their marriage before entering into a marriage.

Under South African Law, the automatic marital regime that applies to any civil marriage concluded between spouses is that of a marriage In Community of Property. In order to contract out of this regime, an antenuptial contract (‘’ANC’’) is required, which the intended spouses sign before (i) they marry and (ii) in front of a notary public who will then register the ANC for the parties at the relevant Deeds Registry.

A Notary Public is an admitted Attorney of the High Court, duly sworn and admitted in terms of the Legal Practice Act and who has passed the competency examination for Notarial Practice and has been admitted into practise as such. The Notary Public holds a respected office which is internationally recognised and attends to amongst other things, the authentication of documents. While also an attorney, a Notary Public is held to a higher standard of care.

Motion proceedings are brought by way of an application to court with an affidavit attached to the application setting out the evidence along with all supporting documentation, provided that there is no dispute of fact. As all the evidence is set out on paper, these proceedings tend to be quicker than action proceedings by way of summons and in certain circumstances motion proceedings can be brought on an urgent basis before court. Action proceedings are brought by way of summons and ultimately results in oral evidence given by witnesses in a trial. Action proceedings can often be lengthy processes depending on the type of action involved. For example, one cannot get divorced by way of motion as a divorce affects one’s status in the eyes of the law and this requires a summons to be served on the other spouse. It is also necessary for a litigating spouse to give evidence as to why the marriage has broken down irretrievably. In both instances, the initial documents are served through the Sheriff of the Court.

This term refers to a document such that, without the need for additional evidence, clearly evidences that a debtor is indebted to a creditor for a sum of money, for example an acknowledgment of debt, cheque or promissory note.

Default judgment is typically granted when a defendant who has been served with summons has failed to furnish notice of intention to defend the summons, thus entitling the plaintiff to apply for judgment against the defendant by default.

Most defendants only become aware of a default judgment granted against them when the sheriff of the court is at their door with a warrant of execution in hand ready to seize and attach their goods. A defendant may then proceed to apply to the relevant court to rescind the judgment. This is an application proceeding that should be served within 20 court days of the defendant having become aware of the judgment. In the affidavit to the application the defendant must clearly state that:

He or she is not in wilful default i.e. They had not received service of the summons or having received the summons did not intentionally ignore the same and; has shown good cause as to why the judgment should be rescinded i.e. The judgment debt had been paid or after having paid the judgment debt, the judgment creditor has consented in writing to the rescission being granted.

In the event that a judgment is awarded either for an amount of money or for the repossession of an asset such as a motor vehicle, the Sheriff of the Court is likely to be instructed by the judgment creditor to serve a warrant of execution and/or attachment. A warrant of execution is issued by the clerk or registrar of the court for the judgment awarded and the Sheriff is then tasked to attend to serve the warrant and demand payment of the judgment amount or return of the asset. The items listed on the warrant can then be seized by the  Sheriff to be sold, this is referred to as a sale in execution. In some instances, the sheriff of the court may be authorised to serve a warrant on the bank of a judgment debtor. In which event the bank will then “freeze” the account of the judgment debtor in order to pay over as much as possible to settle the judgement debt.

This is dependent on whether the parties are in agreement on some of the following issues:

– Whether the marriage has broken down irretrievably;

– The matrimonial regime applicable;

– What will happen to the assets and liabilities either held jointly or in their respective names;

– What will happen to the children they may have together including primary residence, contact and maintenance;

– Whether any spousal maintenance should be paid.

In the event that the parties have discussed and come to an agreement on these and any other issues that may be of relevance, the divorce process need not be unnecessarily lengthy or complicated.  These divorces are referred to as unopposed. An agreement confirming the terms the parties have agreed upon, should be drawn up for their signature. If the agreement does not contain any contentious issues then the signed agreement is typically made an order of court. It is important to note that, any agreement which involves minor children, must be submitted to the Office of the Family Advocate who will review the agreement and either endorse same or query any term in the agreement that may not be in a minor child’s best interest. In the event that parties are unable to come to an agreement on any issues, the divorce is opposed and can in some instances be not only a lengthy but also a costly process.

A divorce summons is served by way of Sheriff who attends at either the spouse’s residence or place of employment. Often a defendant spouse will arrange to meet the Sheriff at the Sheriff’s office in order to collect the summons so as to avoid the Sheriff arriving at their place of employment to serve the divorce summons.

A litigating spouse must utilise the Edictal Citation application process to set out that the defendant resides and/or works in another country and has no intention to return to South Africa or is unlikely to return to South Africa any time soon. The plaintiff spouse will then seek the Court’s permission to serve the divorce summons on the defendant spouse in that country either through the services of South African Embassy in that country or through a local attorney in that country.