How can I sell my immovable property or purchase immovable property, if I lost my muscle function or am paralysed, and cannot sign or make a mark on any documents?Show More or Less
Author: Annerie Delport, Attorney at Ross & Jacobsz Inc.
Contact her for any queries regarding the formalities of a contract of sale of immovable property.
Tel: 012 348 1088
If it happens that one owns immovable property to sell, or otherwise desires to purchase immovable property, but is burdened with some disease, for example, motor neuron disease, rendering one unable to sign or make a mark on any documents, one may wonder if the aforesaid sale or purchase is at all possible in light of Section 2(1) of the Alienation of Land Act, Act 68 of 1981 ("the Act"), which reads as follows:
"No alienation of land after the commencement of this section, shall, subject to the provisions of section 28, be of any force or effect unless it is contained in a deed of alienation, signed by the parties thereto or by their agents acting on their written authority."
It is clear from Section 2(1) of the Act, read with the definition of "alienation of land" (being the sale, exchange or donation of land), that land cannot be alienated in terms of an oral agreement. The agreement of alienation would need to be in writing and signed by both parties.
How does one go about it, if one cannot sign the agreement of alienation?
The Act makes provision for the contract to be signed by agents, acting on the written authority of the seller or the buyer. The seller and/or the buyer therefore does not have to personally sign the deed of alienation and can merely appoint an agent to do so.
What about the power of attorney provided to the agent? Does the aforesaid have to be signed by the seller or the buyer?
In the case of Hugo v Gross (1989) 1 All SA 368, the Court confirmed that the agent can be appointed on authority contained in a written document. The written document does not have to be signed by the person giving the agent such authority, as Section 2(1) of the Act does not require the agent to act on the written and signed authority of the principal, but only on the written authority of such principal. However, the written document is subject to authentication, to ensure that anyone cannot send a written telegram on the seller’s or buyer’s behalf, purporting to be the written instruction of the seller or buyer, when in fact, it is not. The Court gave examples of written authority that is properly authenticated (or that can be properly authenticated), to be where the seller or buyer writes the power of attorney himself / herself (in this case, not possible and applicable) or where the seller or buyer instructs a secretary to type the power of attorney.
It follows that the seller or the buyer does not have to sign the deed of alienation, which can be signed by the agent, nor the power of attorney provided to the agent, in that the power of attorney may merely be contained in a written document, subject to authentication that the authority was indeed given by the seller or the buyer.
In writer’s opinion, the situation portrayed herein above, should be addressed as follows:
1. The power of attorney should contain a certificate by a commissioner of oaths, which certificate confirms that the seller or buyer, by some action, indicated the affirmative, to the following:
a. that the seller or buyer is unable to sign the power of attorney;
b. that the power of attorney was in fact, given by the seller or the buyer;
c. that the seller of buyer has read, knows, and understands the contents of the power of attorney; and
d. that the seller or the buyer appoints a specified agent to sign the deed of alienation, on his or her behalf.
(Disclaimer: The situation discussed here is not one where the seller or buyer is illiterate and therefore cannot sign documents. In the aforesaid case, the making of a mark would be sufficient. The article is also written on the assumption that the seller or buyer who is unable to sign, is of sound mind and thus not prohibited from entering contracts).
Section 24 and 28 of the Firearm Control Act declared Unconstitutional. What does it mean?Show More or Less
Section 24 of the Firearm Control Act, Act 60 of 2000 (hereinafter referred to as "the act") stipulates that a person whom seeks to renew a firearm license must do so within 90 days before the expiry date thereof.
Section 28 of the act stipulates that if a firearm license has been cancelled, the firearm must be disposed of or forfeited to the State.
The aforesaid sections were declared unconstitutional on 4 July 2017 by the Pretoria High Court. The Parliament was subsequently ordered to rectify the short comings in the act within a period of 18 months.
What it means for you in a nutshell:
If your license is about to expire, you need not to renew your license, as the section compelling you to do so, is declared unconstitutional.
The South African Police Service issued a media statement on 5 July 2017 confirming that they are studying the judgement. The SAPS will in the interim retain all firearms retained by the police. No further prosecutions will however be instituted against the parties concerned and no firearms will be destroyed during the transition period.
Please take note thereof that the judgement may be appealed against or interim directives may be issued. The position may vary subject to the development in this matter. We will however keep you informed as the matter progresses.
New Threshold For Registration As Credit Provider In Terms Of The National Credit ActShow More or Less
Does it mean that all credit providers now have to register as Credit Providers regardless of the amount advanced?
Section 40(1) of the National Credit Act 34 of 2005 ("NCA") previously stated that a person or entity was required to register as a Credit Provider if:
(a) "that person, alone or in conjunction with any associated person, is the credit provider under at least 100 credit agreements, other than incidental credit agreements; or
(b) the total principal debt owed to that credit provider under all outstanding credit agreements, other than incidental credit agreements, exceeds the threshold prescribed in terms of section 42( 1)."
The threshold as enunciated in Section 40 of the NCA above, has now been amended by the new regulations to the NCA that was published on 11 May 2016. It follows that all Credit Providers, irrespective of the amount advanced or the number of credit agreements concluded, should be registered as a credit provider.
Looking on the bright side, this does not mean that all Credit Providers should register with the National Credit Regulator ("NCR"). The following categories of persons or entities are exempted:
Incidental Credit Agreements;
Where a person or entity is not a credit provider as defined in terms of the act;
The transaction is not a credit agreement as defined in the act;
If the credit agreement was not concluded or does not have effect within the Republic;
Agreements between persons who are not "at arms length";
Agreements where the consumer is a juristic person whose asset value or annual turnover at the time the agreement is made equals or exceeds R1000 000.00 or where the credit agreement is for an amount in excess of R250 000
Consequences of failure to register:
In the event where a credit agreement was concluded between a consumer and a Credit Provider who is not registered, but is required to register as such, the agreement will be void. The effect thereof is that the Credit provider will be unable to enforce the terms of the agreement and will furthermore not have a claim, based on the agreement.
It is therefore important for all persons or entities required to be registered as Credit Providers to do so