Assignments for Chapter 5 Power of Attorney Centre for Conveyancing Practice Total number of marks asked from this chapter Sep 2009-21 May 2009-25 Sep 2008-0 May 2008-25 Sep 2007-10 May 2007-12 Sep 2006-14 May 2006-18 Sep 2005-28 May 2005-10 Sep 2004-13 July 2004-21 Sep 2003-20 May 2003-29 Sep 2002-14 May 2002-11 Sep 2001-13 May 2001-26 Sep 2000-23 May 2000-15 Sep 1999-46 May 1999-53 An average of 20.4 marks from 22 papers Importance: 6.8% of the examination paper Paragraph 2.2 i i i Regulation 44A Question 1 (Part 2) May 2011 [15] & Question 2 (Part 2) May 2009 [15] 1. A private company has been converted to a close corporation. The company owns one property. What documents are to be lodged in the Deeds Registry in order to record the change? (2) 2. A private company, incorporated in 1968, has only one asset, namely Erf 545 Pine View, which it sells to Koos van der Walt. What documents does the conveyancer who is attending to transfer require in order to satisfy himself that the power of attorney to pass transfer is valid and binding on the company signing the power of attorney? (4) 3. A Close Corporation, Smith Investments CC, is the owner of Erf 100 Happy Valley. The corporation has four members. It seeks to register a bond for R100 000,00 over that erf in favour of Best Bank Ltd. What documents does the conveyancer, who is attending to registration of the bond, require in order to satisfy himself that the power of attorney to pass the bond is valid and binding on the close corporation? (3) 4. A church, Riverside Interdenominational Church, is the owner of Erf 133 Riverside. The church seeks to register a bond of R300 000,00 over that erf in favour of Best Bank Ltd for building purposes. What documents does the conveyancer, who is attending to registration of the bond, require in order to satisfy himself that the power of attorney to pass the bond is valid and binding on the church. (3) 5. A will confers upon the trustees of a testamentary trust, authority to mortgage any trust asset subject to a maximum amount equivalent to 50% of the value of the trust asset in question at the time of mortgage. What documents does the conveyancer who is attending to the registration of a bond in the sum of R100 000,00 over Erf 567 Malgas (a trust asset), require in order to satisfy himself that the power of attorney to pass bond to be signed by a single trustee, is valid and binding on the trustees? (3) Question 2.2 (Part 2) September 2009 [3] 2.2 When signing the preparation certificate note on a power of attorney to transfer a property signed by the executor in a deceased estate, what responsibilities does the preparer take upon himself/herself? Also asked in Question 11.4 (Part 2) September 1999 for 3 marks. Chapter 5 - Power of Attorney 1
Question 4 (Part 2) September 2009 [10] Who is entitled to sign the preparation clause referred to in Regulations 43 and 44(1) of the Deeds Registries Act and state briefly what responsibilities are assumed in terms of Section 15A(1) and (2) of the said Act to the extent provided in Regulation 44A of the said Act, by such person signing the Preparation Certificate, for the correctness of the facts stated in the document? Also asked in Question 13 (Part 2) July 2004 for 10 marks. Question 12 (Part 2) September 2007 [6] You have signed a deed of transfer in your capacity as Conveyancer as the preparer. In doing so set out what responsibilities you have undertaken with regard to the said deed. Practical application Question 12 (Part 2) May 2007 [6] You are required to attend to the transfer from a company of immovable property which the company has sold. Bearing in mind the responsibilities cast upon you as the preparing conveyancer, what documents will you call for in respect of the company? ANSWER See Example 5A in Part 4 of the Self-study notes for Attorneys for the answer to similar questions. Also asked in Question 11 (Part 1) May 2005 for 10 marks, Question 8 (Part 2) May 1999 for 12 marks and in Question 6 (Part 2) May 1998 for 4 marks.. Question 6 (Part 2) May 2009 [10] You receive instructions from a bank to register a mortgage bond over an immovable property by a private company for an amount of R500 000,00. Describe all the steps you will take to ensure that the bond you are to register will be valid. This is a new question. The answer in the model answer booklet should be studied well. Paragraph 2.4 - Attestation i Question 9 (Part 2) May 2007 [6] 9.1 Is it necessary that both husband and wife, married in community of property, sign a power of attorney for the transfer of their property? Motivate your answer. [3] 9.2 May a power of attorney given by both spouses, who are married in community of property, be attested by a Commissioner of Oaths? Motivate your answer. [3] Paragraph 2.5 - Initialling i Question 12 (Part 2) September 2012 [8] You practise at the seat of a deeds registry and receive instructions from your correspondent to attend to various conveyancing matters. What will you do in the following circumstances in order to avoid any unnecessary delay? 12.1 The correspondent has signed the preparation certificate of a power of attorney to pass transfer. Only one witness has signed. You note that the signature of the witness is the signature of your correspondent. (2) 12.2 In a power of attorney to pass transfer, you note that the extent of the property is incorrectly reflected as 1206 square metres instead of 1200 square metres (2) 12.3 The reference to the title deed in the power of attorney is incorrectly reflected as T5001/2006 instead of T5009/2006. (2) 12.4 In the power of attorney to pass transfer, you note that the transferor s identity number differs substantially from that in the title deed which is correct. (2) Paragraph 2.6 - Authentication i i Question 3 (Part 2) May 2011 [3] A power of attorney to pass transfer of a property in the Republic of South Africa is handed to you. You are to register the transfer. The power of attorney was signed Chapter 5 - Power of Attorney 2
before two witnesses in a foreign country. Is this in order? Discuss briefly. Question 7 (Part 2) September 2010 [3] A power of attorney to pass transfer of a property in the Republic of South Africa is handed to you. You are to register the transfer. The power of attorney was signed before two witnesses in a foreign country. Is this in order? Discuss briefly. Question 26 (Part 2) September 2007 [4] 26.1 If a Power of Attorney, which is required for Deeds Registry purposes, is executed outside the Republic, what is probably the simplest form of authentication if such document is executed in: 26.1.1 Harare, Zimbabwe [1] 26.1.2 Washington, United State of America(1) 26.2 Is any form of authentication required if the Power of Attorney is signed in Windhoek, Namibia? Motivate. [2] Also asked in Question 6 (Part 2) May 2006 for 3 marks. Question 4 (Part 2) July 2004 [3] A Power of Attorney to pass transfer of immovable property situated in South Africa was signed by the Seller in Botswana before a Notary Public. Will this PA be acceptable by the Registrar of Deeds? Motivate your answer. [3] ANSWER Yes. In terms of Rule 63 of the High Court Rules, any document executed in any place outside the Republic shall be deemed to be sufficiently authenticated for the purposes of use in the Republic if duly authenticated at such foreign place by the signature and seal of office of a Notary Public in Britain (United Kingdom), Northern Ireland, Zimbabwe, Lesotho, Botswana or Swaziland. Paragraph 2.7 - Analysis of a power of attorney Question 6 (Part 2) September 2006 [4] executes both the consent to the cancellation of the Notarial bond and the power of attorney to pass transfer in respect of the land. On leaving the office of the conveyancer, he has a fatal heart attack. Will the conveyancer be able to utilise the two documents signed by X prior to his death? Give reasons for your answer. ANSWER - The Conveyancer will not be able to utilise the power of attorney to pass transfer of the property. The death of X terminates the agency and a fresh power of attorney will have to be signed by the executor in X s estate once letters of executorship have been issued. The position is different as regards the signed consent to cancellation. The debtor under the bond has already performed by repayment and the consent signed by X during his lifetime remains valid. Paragraph 3 - Drafting of a Power of Attorney i i i Question 3 (Part 1) September 2011 [30] Your client, the owner of Erf 35 Green Point, namely John Smith, Identity Number 590127 5151 08 3, married which marriage is governed by the laws of Zimbabwe, has discovered that buildings on his property encroach on adjoining land, Erf 36 Green Point, in respect of which a sectional title scheme has been registered and Unit 6 therein has been transferred by the Developer. The name of the scheme is Jolene. There is also an encroachment of similar size by the building comprising the scheme on your client s property. As the respective encroachments are similar in size it is agreed to exchange land. The areas of encroachment have been surveyed and consent to subdivision of the erven has been obtained Invent such particulars as you believe necessary. 3.1 Draw the Power of Attorney for the transfer to your client. (18) 3.2 Draw the extending clause in respect of the property to be transferred to your client. (6) 3.3 List the documents to be lodged in respect of the transfer to your client. (6) X is the mortgagee under a Notarial bond registered in his favour the capital owing in terms thereof has been repaid in full. He has also sold a piece of land owned by him to a purchaser. He calls upon his conveyancer and Chapter 5 - Power of Attorney 3
See the case study in Example 5D of the notes where this exact same question was also asked in Question 1 (Part 1) September 1997 for 30 marks. Also see Chapter 1 in Part 2 of these notes, paragraph 9 Dealings with common property - section 17. Question 4 (Part 1) September 2011 20] The late Raymond Louis Lombard who died on 25 April 2009 is the registered owner of Erf 35693 Cape View in terms of Deed of Transfer No. T21518/1985. The deceased was married in community of property to Joyce Elizabeth Lombard, Identity Number 560808 0243 08 0. In terms of Clause 1 of the Joint Will of the said Raymond Louis Lombard and his said surviving spouse, they bequeathed the estate of the first dying to their son, Ivan Victor Lombard, Identity Number 790106 5053 08 2, subject to the provisions of Clause 3 of the said will which reads as follows: Any benefit acquired in terms of my Will shall remain the property of the beneficiary concerned and be excluded from any community of property or community of profit and loss and shall be free from the marital power which might apply to any marriage. Ivan Victor Lombard is married in community of property to Joan Lena Lombard, Identity Number 790423 0091 08. The surviving spouse and the son have entered into a Redistribution Agreement in terms of which the fixed property is to be transferred to their son, subject however, to a life usufruct over the property in favour of herself. The executor is John Topper. Inventing such particulars as may be necessary draft the power of attorney to pass transfer. See the case study in Example 5E of the notes where this exact same question was also asked in Question 12 (Part 1) May 1999 for 20 marks. Question 5 (Part 1) September 2011 [25] Mariaan Naude, a widow, died on 8 May 2008 and nominated (without naming them) her children to be the sole and universal heirs of her entire estate. In terms of the deceased s will dated 24 October 2006 there is a further condition in the will which reads as follows: The inheritance of my heirs shall not form part of the community of property of a present or future marriage. The Best Bank which is appointed as co-executors with Lee-Anne Fortuin, informs you that the children of the deceased are the following: (a) Lee-Anne Fortuin Identity Number 781010 0093 00 1 married out of community of property; (b) Patricia Pattison Identity Number 730918 0039 08 9 unmarried; (c) Vivienne Hartley Identity Number 761204 0481 08 5 married in community of property to Peter Hartley. The late Mariaan Naude is the owner of Unit 11, Oakwood together with an exclusive use area described as CPT8 for use as a carport. There is no mortgage bond registered. 5.1 Draw the Power of Attorney to pass transfer. Provide such further details as may be required. (15) 5.2 List the documents to be lodged in the deeds office together with the transfer. (10) See the case study in Example 5F of the notes where this exact same question was also asked in Question 6 (Part 1) September 1998 for 24 marks. Question 5 (Part 1) May 2008 [25] Bo Brummel Identity Number 750106 5054 08 8 (the owner of the bare dominium), who is married to Mary Brummel out of community of property and his father, John Brummel, Identity Number 451018 5092 00 1 (the usufructuary) who was married to Anne Brummel in England where they were domiciled, sell the proposed Portion 1 of the farm Rome, in extent 1000 hectares, to the Bella Trust for R1 800 000,00 on 15 April 2007. They hand you the following: (a) (b) The deed of sale from which it appears that the property is sold subject to a pre-emptive right in favour of the sellers. The property sold is further, in terms of the deed of sale, subject to a servitude of right of way in favour of the Remaining Extent of the farm as this is the only way whereby access can be gained to the said Remaining Extent of the farm. Deed of Transfer T 4321/1996 in terms of which the farm Rome, in extent 2000 hectares, is held, contains only two conditions, namely: Chapter 5 - Power of Attorney 4
(i) (ii) that the rights to all minerals (excluding coal) are reserved in favour of Mineral Investments Limited, and the usufruct in favour of John Brummel; No bond is registered over the property. You are provided with the approval subdivision diagram S.G. No 321/2005 in respect of Portion 1 of the farm Rome on which the following servitude note appears: The line ab represents the centre line of a right of way servitude 10 metres wide 5.1 The provisions of Act 70/70 have been complied with. Draw the power of attorney to pass transfer to the trust. Provide such further details to complete your answer properly. The description of the parties, properties and conditions must be fully disclosed and conform with deeds office practice. [20] 5.2 What will the transfer duty amount to in respect of the transaction? [2] 5.3 Assume that Bo Brummel is unmarried and is a minor. How will you advise the sellers before they enter into the agreement of sale? [3] Question 5.2 relates to Part 3, Chapter 5, Transfer Duty and 5.3 to Chapter 7, Estate Transfers, paragraph, 7.7. Question 7 (Part 1) May 2006 [15] John Brown subdivides Erf 50 Genadendal into two portions. He sells portion 1 of Erf 50 to Peter Smith (married in community of property to Sheila Smith) and the remainder of Erf 50 to Stan Johnson (a bachelor). The transfers are duly registered. A while later it is found that the wrong portions were transferred in that Portion 1 of Erf 50 was registered in Stan Johnson s name and the remainder in the name of Peter Smith and Sheila Smith. Draw the power of attorney to effect transfer of Portion 1 of Erf 50 to Peter and Sheila Smith. ANSWER Prepared by me CONVEYANCER Le Roux GJ Power of Attorney to pass transfer I, the undersigned, Stan Johnson Identity Number 420701 8774 088 Unmarried do hereby nominate, constitute and appoint Gabriël Jacobus le Roux and/or Erinda Frantzen jointly and severally, each with power of substitution, to be my true and lawful attorney and agent in my name, place and stead to appear before the Registrar of Deeds at Pretoria and then and there as my act and deed to declare that: WHEREAS I concluded a deed of sale on 8 January 2006 with John Brown for the acquisition by myself of Remaining Extent of Erf 50 Genadedal Township Registration Division J.R., Province of Gauteng In Extent: 800 (eight hundred) square meters for the purchase price of R500 000,00 (five hundred thousand rand); AND WHEREAS in error the land described as Portion 1 of Erf 50 Genadedal Township Registration Division J.R., Province of Gauteng In Extent: 700 (seven hundred)) square meters was transferred by John Brown to me by Deed of Transfer T333/2006. AND WHEREAS the said Portion 1 of Erf 50 Genadedal Township was sold by the said John Brown on 15 January 2006 to Peter Smith and Sheila Smith (married to each other in community of property). AND WHEREAS the Remaining Extent of Erf 50 Genadedal as described above was transferred in error to aforementioned Peter Smith and Sheila Smith by Deed of Transfer No. T334/2006; AND WHEREAS I agreed on 2 May 2006 to rectify the error by transferring to Peter Smith and Sheila Smith the said Portion 1 of Erf 60 Genadedal Township; NOW THEREFORE, I hereby authorise my said attorney and agent to cede and transfer in full and free property to the said Chapter 5 - Power of Attorney 5
Peter Smith Identity Number 690327 5006 082 and Sheila Smith Identity Number 710313 4047 084 married in community of property to each other the property described as- Portion 1 of Erf 50 Genadedal Township Registration Division J.R., Province of Gauteng In Extent: 700 (seven hundred) square meter Held by Deed of Transfer T 333/2006 Dated at Pretoria this 10 th day of May 2006 As witnesses: 1. Stan Johnson 2. [15] Question 7 (Part 1) September 2005 [24] John Fourie, born in 1943 is the registered owner of Unit 6 in the sectional title scheme Montana. The sectional plan was registered under number SS482/78. John inherited the property from his mother subject to a fidecommissum in favour of his children on condition that the inheritance of an heir is excluded from the community of property of any marriage an heir may enter into. John died on 15 March 2005 and is survived by two children, Simon born in 1970, unmarried and who was sequestrated in 1999 and Faith, born in 1972, married in community of property to Arthur Powers. Power of Attorney I, the undersigned, Conveyancer Le Roux GJ Athol Fourie, in my capacity as executor 1 in the estate of the late John Fourie, duly appointed hereto by Letters of Executorship number 195/2005 issued by the Master of the High Court North Gauteng, Pretoria on 16 April 2005 hereby appoint Erinda Frantzen to appear before the registrar of deeds at Pretoria and to declare that:- WHEREAS the late John Fourie is the registered owner of the hereinafter mentioned property, subject to the condition that on his death the property shall devolve on his children; AND WHEREAS the deceased is survived by the hereinafter mentioned transferees; Now therefore, I hereby authorise my said attorney to transfer to 1. Simon Fourie Identity Number: 700101 5043 08 7 Unmarried 2. Faith Powers Identity Number: 720809 0066 08 2 Married in community of property to Arthur Powers, which community of property is excluded from the hereinafter mentioned property, the property being:- A unit consisting of 2 The property was registered in John s name in 1980 and is held by the original certificate of registered sectional title which was endorsed to reflect him as owner. John s brother, Athol, has been appointed executor in his estate. 7.1 Draw the power of attorney to pass transfer, providing all further details to complete your answer. (20) 7.2 List the documents to be lodged with the deed of transfer. (4) ANSWER - 7.1 Prepared by me (a) Section No 6 as shown and more fully describes on sectional plan SS482/1978 in the scheme known as Montana in respect of land and building or buildings situate at Montana Township, Local authority: City of Ttshwane Metropolitan Municipality, of which section the floor area according to the said sectional plan is 112 (one hundred and twelve) saure metres in extent; 1 2 Only the executor must pass transfer of the property (even if he was married in community of property), because n fideicommissum is always excluded from any community of property. A sectional title unit must always be described in all documents in accordance with the description thereof in form H. Chapter 5 - Power of Attorney 6
(b) and An undivided share in the common property in the scheme, allocated to the said section in accorancde with the participation quota as shown on the said sectional plan. 1.2 Irene Smith Identity Number: 280419 0041 08 3 Married out of community of property Under Deed of Transfer T 49194/1983. Held by certificate of registered sectional title ST 456/1970 (6) UNIT Signed at Pretoria on 7 September 2005. As witnesses: 1. Athol Fourie 2. [20] 7.2 With the deed of transfer also the following - 1. Power of attorney 2. Title deed 3. Conveyancer s certificate in terms of section 15B(3)(a) 4. Transfer duty exemption certificate 5. Affidavit of next of kin 3 6. Section 42(1) conveyancer s certificate [4] See Question 1.2 (Part 1) July 2004 as part of a combination question in assignment 15, General. See various questions on the drafting of a power of attorney in the case of deceased estate transfers in case of an inheritance. They appear under paragraph 5.5 of Assignment 7, Estate Transfers. Paragraph 4 - Special Power of attorney i i Question 4 (Part 1) September 2009 [8] Erf 100 in the township Acacia, measuring 1 000 square metres, is registered in the names of: 1.1 John Smith Identity Number: 240605 5054 08 1 Married out of community of property Irene Smith has died and her surviving spouse, the abovementioned John Smith, has been appointed executor. He has instructed an estate agent to find a buyer for the whole property and expects a buyer to be found within the next six weeks. John Smith will however be in Japan on business during that time and instructs you to draw a special power of attorney authorising his brother, Sam Smith, to sell the property at a price of not less than R1 150 000,00 (which may include agent s commission) and to sign all documents that may be required to pass transfer of the property to the buyer thereof. Draw the special power of attorney. Question 4.1. 4.2 & 4.3 (Part 1) September 2003 [20] Question 1 - Your client, Steven Farrer, married out of community of property sold his property known as Erf 123 East London, for R100 000 on 1 June 2002 to Johan Webb who is unmarried. Subsequently your client, the seller, was transferred by his com-pany on a one year contract to Israel. As he had not signed any transfer documents in connection with the sale prior to his leaving the country you are requested to prepare a Special Power of Attorney for signature by the seller in Israel for the purpose of appointing an agent in the Republic of South Africa to sign all documents which may be required by the Deeds Office for the purpose of effecting transfer of the property into the purchaser s name. 1 a) Draw the Special Power of Attorney which would enable his agent to sign any documentation which may be required by the Deeds Office for the aforesaid purpose. [10] 1 b) What instruction will you give the seller with regard to his signing the Special Power of Attorney in Israel in order for it to be acceptable for Deeds Office purposes in the Republic of South Africa? [5] 1 c) What would the position be if the Power of Attorney was signed in the United Kingdom? [5] ANSWER 3 The affidavit of next of kin serves as proof of the direct descendants of the deceased, being his children who acquire the property on grounds of the fideicommissum. Answer 1 a - See Example 5 H Answer 1 b - I would advise him of the rules of authentication, in other words that the Power of Attorney Chapter 5 - Power of Attorney 7
must be signed only before those persons listed in Rule 63 of the rules of the High Court of South Africa, namely 1.3 the head of a South African diplomatic or consular mission in that country; 1.4 a government official of the foreign country in question who is authorised to certify documents in that country; or 1.5 any person of that foreign country who can proof by a certificate, issued by a person mentioned above, to be duly authorised to authenticate such document. I would give him details of the Rule referred to above stressing the fact that the Power of Attorney will not be acceptable in the deeds office unless it is properly authenticated. Answer 1 c - The Power of Attorney need only be signed before a notary public in the United Kingdom. General questions on aspects of powers of attorney not dealt within this chapter Question 10 (Part 2) September 2005 [4] X is the mortgagee under a notarial bond registered in his favour, which has been repaid in full. He has also sold a piece of land owned by him to a purchaser. He calls upon his conveyancer and executes both the consent to the cancellation of the notarial bond and the power of attorney to pass transfer in respect of the land. On leaving the office of the conveyancer, he has a fatal heart attack. Will the conveyancer be able to utilise the two documents signed by X prior to his death? Motivate your answer. ANSWER - The conveyancer will not be able to utilise the power of attorney to pass transfer. The death of X terminates the agency and a fresh power of attorney will have to be signed by the executor in X s estate once letters of executorship have been issued. The position is different as regards the signed consent to cancellation. The debtor under the bond has already performed by repayment and the consent signed by X during his lifetime remains valid. Chapter 5 - Power of Attorney 8