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Section 80 Act 66/1965

15 February 2007

Regarding Mr Allen West's article Section 80 of the Administration of Estates Act no 66/1965 (AEA). Section 80(1) of AEA is indeed at times a thorn in the side of both the conveyancer and the Registrar of Deeds when it comes to redistribution contracts. Is the Master's or the Court's consent, as the case may be, necessary when a minor is party to a redistribution of immovables to which the minor is entitled? We all know the Tofie and Venter cases and I am not going to go there.

Whilst I fully agree with Mr West's opinions expressed in his article, two things seem to be amiss from the article; firstly that all the scenarios deal with property already registered in the name of the minor and, secondly, there seems to be one crucial issue which is not addressed in the article, namely the words "…belonging to…." and what exactly the meaning of those two words implies. It seems crucial to me that the section deals specifically with immovable property belonging to a minor, i.e., of which he is the owner, and nothing less.

It is generally accepted that immovable property vests upon registration of transfer and that, as set out in section 16 of the Deeds Registries Act (DRA), ownership is transferred by means of a deed of transfer unless otherwise provided in the DRA or in other legislation. We are not considering expropriation, etc. here, as a minor heir to an estate will not obtain ownership in any fashion but by means of a deed of transfer. If a minor has not received transfer of the property from the executor in the estate, is the property immovable property belonging to the minor? From the decisions in Estate Smith v Estate Follett 1942 AD 364 at 384 and Commissioner for Inland Revenue v Estate Crewe & another 1943 AD 656 at 668 it seems that an heir acquires only a vested right of action to enforce his claim against the executor on confirmation of the liquidation and distribution account and thus the minor is not the owner of the immovable property. The DRA also defines 'owner' as being the representative of an owner who is deceased.

One should also look at the meaning of the words or terms from the perspective of what is said and /or defined in the AEA. Immovable property is defined in the AEA as "land and every real right in land or minerals (other than any right under a bond) which is registerable in any office in the Republic used for the registration of title to land or the right to mine" Jones (Conveyancing in South Africa, fourth edition on p 268) states that an heir "obtains a real right on…..transfer or cession into his name of immovables". That real right as such is not registerable in the deeds registry and must then fall outside the parameters of the definition of immovable property in AEA. The words "belonging to" are not defined in the AEA and one should therefore then attach to them the general legal meaning of the words to the words (see Uitenhage Divisional Council v Port Elizabeth Municipality 1944 EDL 1 and S v Roos 1967 (4) SA 320 (T)), which, in my opinion, finds the minor not to be the owner of the immovables which he/she is entitled to claim transfer or cession of from the estate.

The conclusion that I make is that, in the case of a redistribution agreement involving immovable property forming part of a deceased estate, and where a minor is entitled to claim transfer or cession of some of the immovables being redistributed and is party to the redistribution agreement, section 80(1) of AEA should not find application.

Dudley Lee
8th February 2007

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