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Redistribution answer

26 August 2010

In response to the following email from Donald Moore:

"Dear Sir,

I have read this article republished from the SA Deeds Journal with interest. There is one paragraph with which I wish to take issue. It reads as follows;

"Redistribution agreements pertaining to immovable property should be signed by the contracting parties before two competent witnesses or a commissioner of oaths."

The requirement of witnessing as stated is not a requirement of our common law nor of the Alienation of Land Act as far as I am aware. I would very much like to learn on what basis Mr West makes this statement with regard to the witnessing of contracts pertaining to immovable property as it is new law to me.

The redistribution agreement must certainly be in writing to comply with the Alienation of Land Act, and, if a party is married in community and is effectively disposing of a right in immovable property (and such other rights as are dealt with in section 15(2) of the Matrimonial Property Act) , and is being assisted by his or her spouse, then the agreement must (in so far as that party's disposal is concerned) be signed by two witnesses (a commissioner of oaths would not suffice) in terms of section 15(2) of the Matrimonial Property Act. Apart from this I am unaware of any requirement of witnessing to render a contract dealing with immovable property valid.

As it is necessary for redistribution agreements to be lodged in the Deeds Office with any transfer arising from or affected by such an agreement it is most unfortunate for Mr West to create the impression for Deeds Office Deeds Controllers that there is a requirement in law for such witnessing except in the special circumstance of a spouse in a marriage in community of property giving assistance.

Please refer this aspect to Mr West for his comment and revision before any Deeds Controller rejects any Deeds on the basis of the quoted paragraph.

Yours faithfully,

Donald Moore

GUTHRIE & RUSHTON"

Allen West replies as follows:

"I pertinently referred to 'SHOULD" in my article which does not make the witnessing peremptory. It is always ex abundant cautella good to witness signatures should a dispute later arise. However, I concur that it is not necessary and will not lead to the agreement being rejected."

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