Notarial Practice Exam

LPL4805

Semester 2 - 2023

Name: Jessica Aletha

Surname: Scheepers (born Botha)

Date: 18 October 2023

Student Number: 66379822

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Question 1:

A postnuptial contract is an agreement entered into between two spouses after the

solemnised of the marriage to regulate the matrimonial property dispension with the

aim to exclude their profits and losses from their partners. The agreement must be

executed by a notary and must be registered at the Registry of deeds. The parties

must sign the contract before two witnesses. The postnuptial contract must be kept

in the Protocol registry. If the postnuptial contract is not registered at the Deeds

office then it will not be enforceable against third parties. When applying for a

postnuptial contract, it must be done by way of a High Court Application. There are

certain guidelines to be followed for this application namely:

- There must be a clear indication (or expression) and a binding agreement

between the parties that must happen before the solemnisation of the

marriage to marry out of community of property of after if they want to amend

their matrimonial estate.

- There should be an affidavit that is signed by both the parties who wants to

enter into this agreement;

- The rights of any creditors must also be protected and the postnuptial

contract also protects them from third parties

- There must be made an Court application with the contract attached thereto

and it must be made as soon as the parties realised that they have been

married in community of property. They must also indicate to the Court the

reasons why the agreement was not executed and registered by the deeds

office before the marriage.

- Only if the Court is happy with the agreement then it will grant the permission

of the postnuptial contract which can then be registered in the deeds office.

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Question 2:

2.1 Jill may bequeath her 1/3 share of the farm but there must be a certificate

taken out in the title in terms of Section 35 when they register the transfer

wherein they indicate the undivided shares. She will not have to have the

permission of the Minister.

2.2 The agreement must be made over immovable property for a period not less

than 10 years in order for it to be registered at the deeds office. The contract

between the lessor and lessee must be in writing and also executed by a

notary. The contract between the lessor and lessee must be an undertaking

that the lessor makes the land available to the lessee for the enjoyment of

the land.

Question 3:

X is the owner of the residential property and therefore the notarial bond may be

registered at the deeds office in favour of Y but X cannot register a notarial bond

over the farm because X is not the owner and therefore only have a limited real right.

However, X can hypothecate the entitlements of the usufruct. The usufructs is a

personal right attached to a person so if X dies then the bond will also lapse.

Therefore it will only be wise to register a notarial mortgage bond over the residential

property and have the contract registered at the deeds office indicating the mortgage

bond.

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Question 4:

4.1 The Master of the High Court may remove a trustee if :

- the trustee is unlawful to the Master’s request

- the trustee is declared mentally ill or incapable of managing their own affairs

- if the trustee was convicted of an offence and been sentenced to prison

without having the option of having a fine

- it the trustee was convicted of an office where he/she was dishonest

- if the trustee’s estate itself was sequestrated / liquidated

- if the trustee did not give the Master security of failed to perform the duties

as a trustee

4.2 There are two types of powers of Attorneys namely a special power of

attorney and a general power of attorney. In both instances the power of

attorney must contain the date and place of the execution. The power of

attorney must also specify the client’s details given the attorney the power.

The power of attorneys must be witnessed as well to take effect.

The special power of attorney is for an attorney to deal with specific matters

or affairs and must specify in a clear way the duties that the attorney must

deal with. The special power of attorney can be over immovable property and

provide the attorney with the registered number of the land/immovable

property and the number of the deed and the date of the land or immovable

property.

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 The general power of attorney is not for the purposes of immovable property

unless otherwise provided. The general power of attorney give the attorney

the right and duty to manage the broad affairs of the client in the client’s best

interests.

4.3 The supplementary provisions that must be contained in a notarial bond for

security may be the following:

- The cost clause indicating the debt amount, interest rates and costs secured

by the bond, as well as the clause to state what will happen in the case of

non-payment

- The term of the agreement of the Principle debt, the term of the interest

rates

- the method, the time and the place of the repayment in what ever form,

should it be in instalments which is most common

- the parties personal details such as their domicilium addresses where

documents can be served should the party breach

- there must also be a clause in to specify who is going to be responsible for

the insurance

4.4 The time period for the registration of the notarial bond in more than one

deeds office is that the first one has to be registered in the first deeds office

within 3 months of the execution of the notary. The second registration in the

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 second deeds office must then be within 1 month after the registration of the

first one and thereafter for the following registrations it must also be within 1

month after the previous one.

Question 5:

5.1 There are 4 types of servitudes namely, personal servitudes, public

servitudes, praedial servitudes and statutory servitudes. The general rule is

that no one can have a servitude over their own thing/ land because they are

the owners. The rights of the servitudes are enforceable against other parties

and therefore the servitude holder can protects its rights with the correct

remedy. However, one servitude cannot exist over another servitude and a

servitude cannot place a positive obligation on the owner.

A personal servitude can be over a movable or immovable thing and cannot

be transferred. A public servitude is for the public for instance a public road

that can be used by the public. A praedial servitude is over an immovable

property like a peace of land where someone enjoys the use of the other’s

property. A statutory servitude is created by legislation.

5.2 - Servitudes may be terminated on cancellation of agreement either party;

- when for example with personal servitudes when the person dies or become

incapable of enjoying such

- when the time period as prescribed and agreed upon lapsed

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 - when it was a legal person then after 100 years if not terminated before then

by any other reason

- it can be terminated by new legislation

- the servitude can also be terminated in instances where example the

servitude holder now becomes the owner of such thing.

- it can also become terminated by way of a Court Order.

5.3 The antenuptial contract can then be executed by a notary with two

witnesses. A magistrate, peace officer or public notary may sign in instances

where there are no witnesses. The antenuptial contract is registered in the

registry of deeds. It normally don’t have to be where the parties resides or

where the notary’s office is as long as it is registered in the deeds office within

3 months after the marriage. It must be kept in the notary’s protocol and

protocol book.

Question 6:

6.1 No, it will not be accepted by the Registrar of deeds because it don’t create

a personal servitude and don’t give entitlements to enjoyment over the

property. A servitude cannot compel the owner to perform a positive act. The

subtraction from dominum test apply which indicates that to qualify as a real

right there must be a burden on the land that amounts to the diminution of

the ownership. Therefore, it can be seen as a burden to maintain the house

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 in his personal capacity and therefore in a person’s personal capacity means

that it is a personal servitude which cannot be registered at the deeds office.

It is also not a praedial servitude because he must only maintain the property.

6.2 Huur gaat voor koop will apply in short term leases if the lessee is in control

of the leased property and the title holder has knowledge of such. It also apply

in short terms if the successor of the lessor got the right under lucrative value

and if he don’t have knowledge of the lease and sometimes the lessee don’t

even have to be in control of the property.

The long term lease exceeding 10 years must be registered in the registry of

deeds and is enforceable against creditors. It will also be enforceable against

creditors if the successor has knowledge of the long terms lease when the

credit was granted to lessor.