Allen West Conveyancing Update

1. REGISTRARS CONFERENCE RESOLUTION 13 OF 1961 

Section 58(2) of Act 47 of 1937 

ITEM AND RESOLUTION: 

An application for endorsement of title allowing an insolvent to deal with property which revested in him/ her following an offer of composition may be made by the trustee or the owner of the immovable property concerned. The lodging of the offer of composition, duly accepted, is essential. The production of a certificate under section 119(7) Act 24 of 1936 is optional. 

2. REGISTRARS CONFERENCE RESOLUTION 22 OF 1969 

Sale of Insolvent’s Property by Executor 

ITEM: 

Rockefeller’s estate was sequestrated in 1933 and up to the time of his death in 1963, he had never been rehabilitated. In 1958 Rockefeller acquired a property (bequest) subject to a fideicommissum residui in favour of his sons. Y and Z. At the time of Rockefeller’s death (1963) his assets exceeded his liabilities but there were insufficient liquid assets to pay the estate debts. The Master appointed an executor who, with the consent of Y and Z, sold the property. The Master gave a section 42(2) endorsement and insisted that, despite the fact that Rockefeller had not been rehabilitated, he was entitled to authorize the executor to sell the property and liquidate the estate. What are conference’s views on the matter?

RESOLUTION: 

Conference agrees with the Master’s ruling. According to the definition of “property” in section 2 of the Insolvency Act, 24 of 1936, “property” includes contingent interests in property. On the insolvent’s death the contingent interests in the property lapsed and the trustees’ jurisdiction was ousted as no asset vested in him. Consequently the executor’s authority qua executor was revived and the principle enunciated in Ex parte Estate Du Toit 1945 C 129 can be applied, i.e. he can sell to pay the debts of the fiduciary with the consent of the Master, under section 42(2) of Act No. 66 of 1965. 

3. REGISTRARS CONFERENCE RESOLUTION 11 OF 1978 

Section 58(1) of Act 47 of 1937 

ITEM: 

Can the transfer to a rehabilitated Insolvent not also be done by virtue of endorsement in terms of section 58(2), instead of a formal transfer in terms of section 58(1) of the Deeds Registries Act 47 of 1937? 

RESOLUTION: 

No, the Deeds Registries Act 47 of 1937 does not allow for it 

4. REGISTRARS CONFERENCE RESOLUTION 17 OF 1986 

Section 20 of the Insolvency Act 24 of 1936 

ITEM: 

Where a sheriff of the court attempts to transfer property in terms of an attachment and it appears that the owner is insolvent, can such transaction be proceeded with if the deeds controller ascertains that such transaction took place before the date of sequestration? (see also Rennie N.O. v Registrar of Deeds 1977 2 SA 513 (C), and section 20(1)(c) and section 20(2)(a) of the Insolvency Act 24 of 1936). 

RESOLUTION: 

No, the deeds office will neglect its duty if it does not stop the transfer (see also RCR 54 of 2010).

5. REGISTRARS CONFERENCE RESOLUTION 13 OF 1989 

Section 56(1) of Act 47 of 1937 

ITEM: 

The co-owner of immovable property which is mortgaged becomes insolvent. Transfer of the share of the insolvent is passed. How must the bond now be dealt with? Are the provisions of section 55(1) of the Deeds Registries Act 47/1937 now futile as a result of the proviso to section 56(1)? See also RCR 12 of 1980 and 11 of 1988. 

RESOLUTION: 

The solvent co-mortgagor’s rights are not affected and the provisions of section 56(1) of the Deeds Registries Act 47/1937 therefore remain applicable. 

6. REGISTRARS CONFERENCE RESOLUTION 7.8 OF 1999 

Description of insolvent transferor 

ITEM: 

RCR 14/1950 on p 140 and RCR 12/1988 on p 791 must be reconsidered. Are there any offices in which it is still practice to describe an insolvent as resolved in RCR 14/1950? 

RESOLUTION: 

RCR 14/1950 and RCR 12/1988 are hereby repealed. Although the consent of the trustee will still be required, it will no longer be necessary to describe the unrehabilitated insolvent as such in any deed or document. 

7. REGISTRARS’ CONFERENCE RESOLUTION 3 OF 2006 

Sale in insolvency and personal servitudes

ITEM: 

RCR 36/1959 needs to be revisited with regard to the disposal, by a trustee, of property subject to a personal servitude. 

RESOLUTION: 

Where immovable property which is subject to a personal servitude is sold in insolvency, such immovable property must be transferred subject to such personal servitude. However, should the holder of the personal servitude dispose of his/her rights together with the trustee, the provisions of section 69(1) may be invoked. Where a waiver of preference by the holder of the personal servitude provides that the immovable property may be sold free from the personal servitude, the provisions of section 68(1) must be complied with (see Van Vuren v Registrar of Deeds 1907 TS 289 as well as United Building Society Ltd and Another v Du Plessis 1990 (3) SA 75 (W)). 

(RCR 36/1959 has been withdrawn). 

8. REGISTRARS CONFERENCE RESOLUTION 18 OF 2006 

Section 58 of Act 47 of 1937 

ITEM: 

Must the provisions of Section 58 of Act No. 47 of 1937 also be applied to a usufructuary in case of insolvency? 

RESOLUTION: 

Yes, section 58 is applicable. 

9. REGISTRARS CONFERENCE RESOLUTION 31 OF 2007 

Section 18A of the Insolvency Act 24 of 1936 

ITEM: 

In terms of section 9(3)(a)(i) and (ii) of the Insolvency Act, 1936 the sequestration order must be noted against the spouse of the insolvent. If the name of the spouse is not disclosed on the sequestration order, how must a registrar of deeds give effect to the provisions of section 18A of Act No. 24 of 1936?

RESOLUTION: 

The registrar of deeds merely records the information provided. It is the duty of the trustee/ provisional trustee to provide the registrar of deeds with the relevant information as provided for in section 9(3)(a) of the Insolvency Act. 

10. REGISTRARS CONFERENCE RESOLUTION 46 OF 2009 

Section 21(3) of the Insolvency Act No. 24 of 1936 

ITEM: 

How must the preamble of a deed of transfer be couched, where property is registered in the names of A, married out of community of property, and B, married out of community of property, and the Trustee in the insolvent estate of A also sells the property belonging to B (being the spouse of A), in terms of section 21(3) of the Insolvency Act, 1936? 

RESOLUTION: 

The trustee in the Insolvent Estate of A………………. 

Identity Number …………………………………………. 

Married out of community of property, 

and acting in terms of section 21(3) of Act 24 of 1936 in the solvent estate of 

B………………………………………………………..… 

Identity Number …………………………………………. 

Married out of community of property 

11. REGISTRARS CONFERENCE RESOLUTION 54 OF 2010 

Property sold in execution 

ITEM: 

If property was sold in execution and the debtor is sequestrated after such sale, does the sequestration prevent the sheriff from transferring the property to the purchaser of the sale in execution?

RESOLUTION: 

Yes. However, in Dirk Cornelius De Jager No and Others v Balju van die Hooggeregshof, Bloemfontein-Wes and Others dated 4 June 2010, the sale of the property is not suspended when application for sequestration is made. However, once the sequestration order has been granted, only the trustee may pass transfer subject to the provisions of section 5 of the Insolvency Act (see also RCR 17 of 1986) 

Please do not hesitate to contact me for further information.

Allen West
TONKIN CLACEY PRETORIA 
012 346 1278

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