In terms of the decision handed down by the Supreme Court of Appeal in Koster v Norval (20609/14) [2015] ZASCA 185 it was confirmed that, in our law, it is not an essential feature that the seller must be the owner of the thing sold. The seller is, however, required to deliver undisturbed possession of the thing sold.
Section 96 of the Deeds Registries Act 47 of 1937 provides as follows in this regard
“If any deed or document required to be executed by the owner of immovable property has been executed by a person who has acquired the right to receive transfer or cession of such property, such deed or document shall, upon the person aforesaid receiving transfer or cession of such property, for the purposes of this Act be deemed to have been executed by the owner of such property.”
Conclusion
In terms of the said judgement, read in conjunction with the quoted section 96, the date of sale of immovable property may be prior to the date of acquisition of such property, subject thereto that both transfers are registered simultaneously.
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
