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Don’t Get Caught Out!

Article by our listed attorney Fawzia Khan

A client came in the other day because he needed a bond to be registered over the family holiday home down at the coast. He said that the property was freehold and that he was confident that the bank would find sufficient value to cover the amount of the bond required.

He was right, as after the paperwork was attended to, our firm then received formal instructions from the bank concerned to proceed to register a mortgage bond over the holiday home. So far so good.

However, as is standard practice at our firm, we conducted a deeds office “search” on the property concerned. The search is done by way of a software programme which gives us a live link to the records at the Deeds Office Registry. To our dismay we discovered that an interdict had been raised against the property.

It turned out that my client had donated that particular property to his wife in an ante nuptial contract (ANC) some 8 years previously, but had failed to transfer it into his wife’s name.

He was aghast to learn that transferring the property to his wife was not the only issue on hand, but that the Receiver of Revenue was also waiting in line to get his share of this transaction.

In terms of the section 3 of the Transfer Duty Act 40 of 1949, transfer duty is payable by the person acquiring the property. The real stinger was still to come. We also had to break the news to him that penalties and interest on late payment was going to levied as well.

Section 4 of the Transfer Duty Act states that any transaction entered into before 1 March 2005, for which the duty remained unpaid, attracts a penalty at the rate of 10% per annum which was payable on the amount of the unpaid duty. Ouch -

What a shock! Clearly, at the time that he signed his Ante Nuptial contract, my client had not been made aware of these sanctions by the person who had drawn up the contract for him. This does not mean that you should not donate property to your fiancée in an ANC. It can still be done without attracting problems like these, provided that the drafter of the document knows how to go about it.

It’s important that you understand what will work best for you as far as marital contracts goes and make sure that it is drawn up by someone who is equipped with the necessary technical skills to avoid pitfalls later on. As the saying goes, “Caveat emptor”!

You do not need to make an appointment to consult with me if you are merely seeking legal advice, especially if you reside outside the Durban area. I can provide you with legal advice quickly and cost effectively via email at

If you are about to get married and want legal advice regarding Ante Nuptial Contracts (ANC) or want advice on any immovable property or notarial deed matter, email me at with your legal query and I will gladly assist you.

Fawzia Khan of Attorneys Fawzia Khan & Associates, is an Attorney, Conveyancer and Notary Public . The firm has been in existence since 1990 and is based in Mount Edgecombe, Durban.

Copyright reserved: Fawzia Khan