Tonkin Clacey Error in Vesting Clause

Regardless of Registrars’ Conference Resolution, No 4 of 1989, confusion still persists around the question as to whether an erroneous marital status of a person in the vesting clause of a deed may be amended in terms of section 4(1)(b) of the said Act. 

In an attempt to resolve the matter, sections 4(1)(b) and 17(1), (2) of the said Act are to be carefully considered. 

To comply with the prevailing law in respect of marriages in community of property and the vested right of the joint estate in immovable property, real rights in immovable property and notarial bonds, section 17(1) of the said Act stipulates that such property, real right or notarial bonds “……. shall be registered in the name of the husband and the wife, …..”. 

However, section 17(1) of the said Act must not be read in isolation, but in conjunction with section 17(2). Section 17(2) elaborates on the registration requirements in compliance with section 17(1) of the Act. The provisions of section 17(2) can therefore be seen as to “describe” then persons contemplated in section 17(1) of the Act, in relation to their marital state and the spouses’ names. 

Section 4(1)(b) of the said Act provides for the rectification of an error in the name of the “description” of any person, provided certain conditions are met. The marital state, whether the marriage was concluded in or out of community of property and even the names of the spouse are all part of a person’s description (see section 17(2)(a), (b) and (c)), therefore section 4(1)(b) of the Act can be applied to rectify an error in such a description. 

Similarly, in the case of a person described as unmarried but, in actual fact is a widow/divorcee etc., this can also be amended to rectify the position. 

Whenever section 4(1)(b) of the Act is to be considered as above, the principals laid down in Ex Parte Menzies at Uxor 1993(3) SA799, must be kept in mind. Apart from these considerations, it must also be established whether such an amendment would not result in a contravention of any other law, e.g. the Subdivision of

Agricultural Land Act, 1970 (Act 70/1970), the Advertising on Roads and Ribbon Development Act, 1940 (Act 21/1940) and the Agricultural Holdings Act , 1919 

If the deed to be amended, it mortgaged by a registered mortgage bond, such amendment must not invalidate the bond. To comply with, e.g. the provisions of section 15 of Matrimonial Property Act, 1984 (Act 88/84) and to renounce the legal exception “de duobus vel pluribus reis debendi”, it is recommended that a “substituting” bond be registered in lieu of the existing bond, which is to be cancelled simultaneously.

Should you require more information, please do not hesitate to contact us.

Allen West
TONKIN CLACEY PRETORIA 
012 346 1278

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