I am unable to agree to that aspect of the conclusion reached in Effect of sequestration, according to which it is implied that an endorsement in terms of section 45bis (1A) (a) of the Deeds Registries Act 47 of 1937 (“the DRA”) -
(i) results in a transfer, to each former spouse, of the one half share in the immovable property, to which he or she is entitled; and
(ii) would be in compliance with section 14 of the DRA.
- The accrual of immovable property to both former spouses, in undivided shares, as envisaged in section 45bis (1A) (a) of the DRA, does not involve an acquisition, by such former spouses, of such undivided shares and, therefore, no transfer of ownership can result from such accrual.
- Section 14 (1) (a) of the DRA provides that “……………transfers of land and cessions of real rights therein shall follow the sequence of the successive transactions in pursuance of which they are made …………..” (emphasis added).
- The non-application of section 14 (1) (a) of the DRA is also clarified by the words “….any change in the ownership in such land or of such real right………” in section 14 (1) (b) of the DRA (emphasis added).
- Moreover, because of the re-marriage of Mr and Mrs Wiggill, it is submitted that, having regard to the peremptory provisions of section 17 (1) of the DRA, the endorsement in terms of section 45bis (1A) (a) of the DRA would be to the effect that the immovable property is owned jointly by the new spouses, which provisions of section 17 of the DRA state, amongst other things, that: “………immovable property …… which would upon transfer, ……… or registration thereof form part of a joint estate shall be registered in the name of the husband and the wife ………….”
12 July 2011
I cannot concur with the comment, but without entering into a long legal debate, I would like to stress that section 17 (4) is not peremptory
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