In determining whether such a condition is legal and competent for insertion into a deed of transfer, he investigates the position under common law and then ascertains whether it has been altered by statute. Of the two common-law methods which allow one to burden the land - fidei commissum and express exclusion - the writer discusses the second. He shows that under common law there is clearly no prohibition against bequeathing immovable property in such a way, and that the condition may be incorporated into the immovable property's title deed.
He then finds that the Deeds Registries Act 47 of 1937 (the Act) does not alter the common law. Briefly, in terms of Section 17(1) of the Act and Section 63(1) notwithstanding, no condition can be imposed on donation, or in terms of a testamentary bequest, and may be taken up in a deed of transfer.
In the case of the sale of such excluded immovable property the common law does not apply and the property may be registered solely in the name of the relevant spouse provided the registrar has documentary evidence that it was bought using funds which are excluded from the joint estate. The problems of removing this condition from the title deed are then discussed, and the writer evidences the view of the courts that such a condition is not a nudum praeceptum.
The article ends with a note about the judgment in Du Plessis v Pienaar NO and Others 2003 (1) SA 671 (SCA) which held that such assets are not protected against future creditors of the joint estate and that such conditions are relevant only between the spouses themselves.
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