Qualification of conditions - 3

8 October 2009

See Qualification of conditions - 1 for the introduction.

Conditions imposed by Statute
If new conditions imposed by Statute are taken up in a deed, reference to the Statute or Authority concerned must be inserted in the preamble of such condition, for example:

Subject to the following condition(s) imposed in terms of Section 6 of the Advertising on Roads and Ribbon Development Act 21 of 1940


Subject to the following condition(s) imposed by the Premier in terms of Section ...... Ordinance/ Act ........

Conditions of a general nature
The deed of creation must be mentioned in the preamble. The preamble will then for instance read as follows:

Subject to the following conditions imposed by the Premier by virtue of Section 18 of the Division of Land Ordinance No. 33 of 1934 as created in Deed of Transfer No T................

In some instances reference can be made to the deed of creation in the condition itself, for example:

Subject to the reservation of all mineral rights as described in the Minerals Act No ........ in favour of the State, created in Deed of Grant No T.......

Pivot Deed
The pivot deed is a reference to general conditions contained in a specific deed. The pivot deed refers you to every deed where the conditions have changed.

Where a title deed does not contain a pivot deed, no reference thereto must be made and will thus not change as discussed infra.

As from 1 January 1972 the existing pivot deed appearing in any deed will not be changed, neither will a new one be created except in the exceptional circumstances set out below:

  • The existing pivot deed appearing in any title deed will not be changed, nor will a new pivot deed be created except when the whole of a condition created prior to 01 September 1937 has totally lapsed or been completely cancelled or the property wholly deprived thereof.

  • Where the condition created after 01 September 1937 lapses or is cancelled or the property is deprived thereof, the fact of such lapsing or cancellation or deprivation may (depending on the circumstances) be recorded by means of an appropriate endorsement eg. (Section 68(1) of the Act) on the existing title deed, all reference to the condition in question will, thereafter, be omitted from subsequent deeds without any change to the pivot deed. This will apply to all servitudes originally embodied in deeds after 01 September 1937 - including water servitudes. In this connection your attention is also drawn to the provisions of section 76(4) of the Act.

  • Where common law rights (e.g. right to private water or riparian rights) are alienated or separated from the land to which it naturally attaches, such separation or cession must, of course, be perpetuated indefinitely.

    Where a condition created before 01 September 1937 lapses or is cancelled or the property is deprived thereof, the fact of such lapsing or cancellation or deprivation may (depending on circumstances) be recorded by means of an appropriate endorsement (as mentioned supra) on the existing title deed (Deed 1), thereafter the condition must be omitted from the "new deed" (Deed 2) and the new deed (Deed 2) must contain a "not subject" clause in respect of the condition which has lapsed or been cancelled etc, such "not subject" clause must contain the reason why the land in question is no longer subject to the relevant condition, e.g.

    Not Subject to condition B by virtue of section 28 of Act 101 of 1969

    (and such "not subject" clause must be numbered as a condition of title)

    The pivot will remain unaltered in this deed, (Deed 2).

    Upon transfer of the property from this deed (Deed 2) to the next owner by means of (Deed 3) the "not subject" clause in (Deed 2) will be dropped from (Deed 3) and the pivot will be changed in (Deed 3). The pivot in (Deed 3) will become the title reference of (Deed 2).

    Please note that the pivot is only changed by a "not subject" clause and not by a "not entitled" clause.

  • Where a condition created either before or after 01 September 1937 is either amended or partly cancelled or partly lapsed, the condition will be carried forward in the following deeds in its modified form without any change to the pivot deed, as follows:

    Subject to the following condition created in ......
    as amended by ............... now reading as follows ..............

  • Where the State is the transferor in (Deed 1) the pivot will change on transfer of that erf e.g: The new deed (Deed 2) will have the title reference of (Deed 1) as its pivot.

    This applies to properties registered in the name of Transnet as well. (Take note of titles endorsed in terms of section 33(1)(c) of the Legal Succession to The South African Transport Services Act, 9 of 1989).

    Personal Servitudes
    Where a portion of land being transferred is not subject to the main servitude but only to the ancillary rights which have not been restricted solely to the remainder, the entire condition is carried forward in the title for the portion being transferred. This must, however, be evident from references to the subdivisional diagram. Qualification is not necessary where rights of enjoyment over property being sub-divided are numerically or otherwise defined or restricted, e.g. a right of grazing which specifies the number of cattle which can be grazed or a right to water which is defined in turns, hours etc. out of a river, dam or spring. The condition if applicable is merely brought forward in the new deed verbatim, reference must of course be made in the preamble of the condition brought forward, to the creative title of such condition.

    Transfer of a portion of consolidated property
    When consolidated property is at a later stage subdivided in such a way that the new subdivision consists of only a portion of the consolidated property, the components as reflected on the consolidated property will be indicated by broken lines on the subdivisional diagram.

    The purpose of this is in fact to make the qualification of conditions easy, and the preamble of the condition will make reference to these figures as indicated on the subdivisional diagram, e.g.

    i Insofar as the figure CDEFGkj on said Diagram No. 5677/84 is concerned-

    - Subject ........................
    - Subject ........................

    ii Insofar as the whole of the property is concerned-

    A. Subject ........................
    B. Subject ........................

    Where reference in a condition is made to figures on a previous diagram the condition must be qualified in such a manner that the qualification of the "mother erf" is quoted verbatim with reference to the new diagram, the "mother" diagram, and must then be qualified further so that the references to the new diagram for the subdivision is also included in the qualification of the condition e.g.

    Subject to a 5 metre wide servitude right of way in favour of Erf 275 Durbanville measuring 2 000m² as indicated by the line JkL on diagram SG No 2316 of 1984, which servitude is depicted by the line Abc on diagram SG No 1087/1999.

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