Section 30 of the Administration of Estates Act, Act 66 of 1965 ("the Act") reads as follows:
"Restriction on sale in execution of property in deceased estates
No person charged with the execution of any writ or other process shall -
(a) before the expiry of the period specified in the notice referred to in section twenty nine, or
(b) thereafter, unless in the case of property of a value not exceeding R5 000,00 the Master or, in the case of any other property, the Court, otherwise directs,
sell any property in the estate of any deceased person which has been attached whether before or after his death under such writ or process:
Provided that the foregoing provisions of this section shall not apply if such first-mentioned person could not have known of the death of the deceased person."
Deeds controllers and conveyancers must note that the word "court" is defined in Section 1 of the Act as "the High Court having jurisdiction, or any Judge thereof". A Magistrates' Court has no power to give directions as contemplated in Section 30 of the Act. In the recent case of De Faria v Sheriff, High Court, Witbank 2005 (3) SA 372, Judge De Vos J. held that a sale in contravention of Section 30 is a nullity and, according to Section 102(1)(h) of the Act, any person who contravenes the provisions thereof is guilty of a criminal offence.
The question that may now arise is whether it is the duty of the Registrar of Deeds to determine that no such transfers are registered unless accompanied by a direction of the High Court? In most cases, sale in execution transfers lodged at the Deeds Registry will not indicate whether the owner is deceased.
Readers' comments will be appreciated - Editor of SA Deeds Journal.