Section 2(1) of the Alienation of Land Act, 1981 (“ALA”) provides that an alienation of land must be contained in a deed of alienation, signed by the parties or by their agents acting on their written authority, the only exception being a sale of land by public auction.
Broken down, the requirements for a valid alienation of land are as follows:
1. “alienation”, which is defined as a sale, donation, or exchange. An alienation of land other than by way of a sale, donation or exchange thus need not be in writing to be valid;
2. “land” has an extended definition, and includes a right to claim transfer of land and an interest in land, like the acquisition or granting of a servitude;
3. it must be contained in a “deed of alienation”, which is defined as a document or documents under which land is alienated; and
4. the deed of alienation must be signed by the parties thereto, or by their agents acting on their written authority.
The last requirement is the one overlooked most often in practice.
This is most often seen in instances where trusts or companies enter into deeds of alienation without having passed the necessary resolutions to authorise their agents to sign on their behalf.
The general notion out there is that non-compliance of this requirement can later be ratified. This is not the case.
Such agreements are void ab initio due to non-compliance with section 2(1) of ALA and cannot be ratified – see in this regard the 2006 SCA decision in Thorpe NNO v Trittenwein.
Allen West
Property Law Consultant
HANNES GOUWS AND PARTNERS INC.
Attorneys, Notaries & Conveyancers
Tel: 012 321 1008
Cell 078 7655928
E-mail: allen@hannesgouws.co.za
Author of The Practitioners Guide to Conveyancing and Notarial Practice 3rd Edition
