Conveyancers and deeds office staff are often confronted with the problem of assets which are still registered or vested in the name of a company which is liquidated and its affairs having been fully wound up in terms of section 419 of the Companies Act 61 of 1973.
In the decision of Rainbow Diamonds (Edms) Bpk en Andere v Suid-Afrikaanse Nasionale Lewensassuransiemaatskappy 1984(3) SA 1 (A), it was held that a company's assets which were not transferred prior to the dissolution of such company accrues to the state as bona vacantia. No court order is required to vest ownership in the State. It was further held that, where an application is brought to set aside the dissolution of a company, notice must be given to the Department of Finance in the event of assets being claims or money. The Treasury will accordingly cede any claims which accrued to the State as bona vacantia to persons entitled to such claims before dissolution.
The question now begging to be answered is how the decision of the said case affects the deeds office practice. For practical purposes I will allude to three specific instances.
Firstly, where a mortgage bond is passed in favour of a company which has been liquidated and its affairs wound up in terms of section 419 of the Companies Act, the conveyancer is confronted with the problem of how to cancel the bond registered in favour of such company when the registered owner wishes to deal with such land. In terms of section 56 of the Deeds Registries Act 47 of 1937, no transfer or mortgaged land shall be attested or executed by the registrar unless the mortgage bond is disposed of (cancelled, released, etc). Who must thus sign the consent to the cancellation or disposal of the bond? It has been established practice that an order of court be obtained for such cancellation. It is the author's contention that, in view of the aforementioned decision, a registrar of deeds may accept a consent for the cancellation of a bond signed by the head of the National Treasury of the Republic of South Africa, provided the indebtedness secured by the bond has been paid in full.
Secondly, where a personal servitude, pre-emptive right or other restrictive condition is registered over land in favour of a company and such company is liquidated and the affairs wound up, the question arises as to how this condition must be dealt with on transfer of the servient tenement. Section 68(1) of the Deeds Registries Act provides that the title deed of the encumbered property can be endorsed as to the lapse of the condition, upon application by the owner or somebody on his behalf, provided proof is lodged as to the lapse of the condition. In terms of section 66 of the Deeds Registries Act and Taute v Van Rensburg 1974 (1) PH D 4 (C), personal servitudes lapse on the death of the holder thereof.
|In your own words|
"Our South African system is arguably among the best, if not the best, in the world"
Owner of property?