NOTARIAL PRACTICE/ NOTAR/eLE PRAKTYK 21 OCTOBER/ …

NOTARIAL PRACTICE/ NOTAR/eLE PRAKTYK

21 OCTOBER/ OKTOBER 2015

ANSWERS/ANTWOORDE

Pagell

PLEASE NOTE THAT THE GUIDELINE ANSWERS TO PREVIOUS PAPERS MAY NOT BE A CORRECT REFLECTION

OF THE LAW AND/OR PRACTICE AT THE MOMENT OF READING.

NOTE TO EXAMINER: Tltis guideli1te records tlle views of tlle drafters. Tllere may be justifiable variations ;,, practice wlticlt are brougltt out in tl,e answers. Wl,en ti,is l,appens t!,e examiner sltould apply ltis discretion in marki11g t!,e answer.

QUESTION 1 [121

1.1 Where two or more testators in a joint will consolidate their estates and jointly dispose

thereof, with only a limited interest (such as a usufruct) given to the survivor over the

massed estate, and the survivor adiates, massing will take place. (3)

1.2 One would have to obtain the consent of the Minister of Agriculture (Land affairs) in terms of Section 4 of the Act failing which the parties would have to enter into a redistribution agreement, failing which the executor/trix would have to sell the farms (see Section 5 of the said act 70/1970). (2)

1.3 No. Community is not only excluded in the will, but the vesting of farmland in the names of parties married in community of property is not prohibited by the Act. (1)

1.4 The testators could bequeath the farm to a testamentary trust (trust mortis causa) with the survivor as sole income beneficiary and the children as capital beneficiaries or the testators could bequeath the farm to a corporate entity of which the children are shareholders. The testators can also bequeath the farm to the survivor subject to a fideicommissum in favour of a trust or corporate entity of which the children are beneficiaries. (The candidate is required to draft only the relevant clause to be inserted in the will). (3)

1.5 The estate would have to account for VAT on the value of the bare dominium. It is impossible for the owner of the bare dominium to make VATable supplies with the bare dominium. The children would only become entitled to claim an input VAT credit on the demise of the usufructuary. I would suggest that the testators rather bequeath the farms to a testamentary trust with the survivor as sole income beneficiary and the children as capital beneficiaries, provided in all instances that the farm continues to be operated as a VAT vendor. Input VAT can only be claimed by a heir who is a registered VAT vendor. (3)

LEGAL EDUCATION AND DEVELOPMENT (L.E.A.D/Il''

QUESTION 2

Protocol: 216/2014

NOTARIAL DEED OF SERVITUDE

KNOW ALL MEN WHOM IT MAY CONCERN

Page 12

(151

That on this the (2014) before me,

day of in the year Two Thousand and Fourteen

KARL JENKINS

Notary Public a lawful authority, duly sworn and admitted, practising at Durban in the Province of the Kwazulu Natal, and in the presence of the subscribing competent witnesses, personally came and appeared

1. EDGAR BLACKIdentity Number:Married out of community of property(the Dominant Owner)

2. BRIAN MURPHYIdentity Number:married to MARY MURPHY which marriage is governed by the Laws of Scotlandand duly assisted by her as far as needs be(the Servient Owner)

AND THE APPEARERS DECLARED THAT

WHEREAS EDGAR BLACK is the registered owner of the property described as

THE FARM WATERVAL NUMBER 6844, REGISTRATION DIVISION FU, PROVINCE OF KWAZULU NATAL In extent: 6 000 {Six Thousand) Hectares; Held by Deed of Transfer T303/1997 with Diagram No 706/1996 annexed hereto

{hereinafter referred to as "the Dominant Tenement");

AND WHEREAS BRIAN MURPHY is the registered owner of the property described as

THE FARM STONEYRIDGE NUMBER 6845, REGISTRATION DIVISION FU, PROVINCE OFKWAZULU NATAL In extent: 5 000 (Five Thousand) Hectares Held by Deed of Transfer T607 /2000

(hereinafter referred to as "the Servient Tenement");

AND WHEREAS the Dominant Owner intends to construct a dam on his said farm which when full will result in the flooding of a portion of the farm owned by the Servient Owner;

LEGAL EDUCATION AND DEVELOPMENT /L.E.A.D/1.,,..

Page 13

AND WHEREAS the Servient Owner is prepared to grant a Servitude of abutment in respect of the Servient Tenement in favour of the Dominant Tenement, subject to certain conditions hereinafter set out;

NOW THEREFORE THE APPEARERS AGREE THAT:

1. The Servient Owner as owner of the Servient Tenement hereby gives and grants tothe Dominant Owner as owner of the Dominant Tenement, his successors in title orassigns, a Servitude of Abutment in terms of which the said Dominant Owner will beentitled to inundate and flood an area measuring 33 (thirty three) hectares of the saidServient Tenement, the high flood level of which servitude being represented by thefigure lettered a.b.c.d.e.f.g.h.i.j.k. on the servitude diagram SG No. 786/2014 hereuntoannexed and subject to the conditions hereinafter set out;

2. The said Servient Owner, his successors in title or assigns, will be entitled to drawwater from the said dam sufficient to irrigate an area of 7 (seven) hectares on the saidServient Tenement.

3. The Owner of the Dominant Tenement shall be entitled at all times as may now orhereafter be necessary or desirable to enter upon the Servient Tenement for thepurposes aforesaid, and to carry out in or on the Servient Tenement all that may inthe opinion of the Owner for the time being of the Dominant Tenement be necessaryor desirable in connection with the servitude from time to time.

4. Should any damage be caused to the Servient Tenement or the improvementsthereon as a direct result of or arising out of the exercise by the Owner of theDominant Tenement of its servitude rights hereunder, such damage shall be madegood by the Owner of the Dominant Tenement.

5. The Owner of the Servient Tenement shall not erect or cause or permit to be erectedany buildings or other structures on or over the said Servitude area or do or permit tobe done anything in or on the Servitude area or in the immediate vicinity thereof whichwill or is likely to interfere with or prejudice the rights conferred upon the DominantTenement under this Deed.

6. That the costs of the drawing and registration of this deed and the transfer dutypayable on the hereinafter mentioned consideration shall be paid and borne by theDominant Owner.

7. That in consideration of the rights granted herein the Dominant Owner shall pay theServient Owner the sum of FIFTEEN THOUSAND RAND (R15 000.00) which amountshall be payable on registration of this Notarial Deed.

And the said Dominant Owner hereby accepts the benefits of the above recorded Servitude of Abutment on the terms and conditions hereinabove set forth.

THUS DONE and SIGNED at PIETERMARITZBURG aforesaid, on the first aforewritten in the presence of the subscribing competent witnesses:

LEGAL EDUCATION AND DEVELOPMENT /L.E.A.D/T"1

day of 2014

AS WITNESSES:

1.

2.

NOTARY PUBLIC

QUESTION 3

Page 14

E BLACK

B MURPHY

ASSISTED BY ME

M MURPHY

[61

a.1 Carl Edmund in his capacity as the Executor of the Estate of the Late Joe Soap Number 1256/2014, acting under letters of Executorship issued to him by the Assistant Master of the High Court (Natal Provincial Division) on 21 MAY 2014 at Pietermaritzburg ("the granter")

and

a.2 BEATRICE SOAP Identity No. 491017 0263 08 8 UNMARRIED ("the grantee")

b.1 BEATRICE SOAP Identity No. 491017 0263 08 8 UNMARRIED ("the usufructuary")

and

b.2 SHEILA SOAP Identity No. 520410 0152 08 2 UNMARRIED rthe bare dominium owner'')

QUESTION 4

(3)

(3)

[101

4.1 I would present the bill for payment to CD and then give notice of dishonor personally to AB and demand payment from him, and give notice of dishonor by registered post to EF and demand from him that he make provision therefor, together with interest and costs and prepare and sign a noting slip containing all the detail of the presentment for payment and costs involved.

The Protest would be as follows:

LEGAL EDUCATION AND DEVELOPMENT {L.E.A.D/f"'

Page IS

NOTARIAL PROTEST

Know all men whom it may concern that on the 16th day of August 2014 at the request of G.H. of 6, Kerk Street, Pretoria, holder of a bill of exchange, copy of which is abovewritten. I, Sandra King, Notary Public, duly sworn and admitted, residing and practicing at Pretoria, in the Province of Transvaal, proceeded to 20 Lang Street, Pretoria, and then and there speaking to the acceptor of the said bill, I exhibited the bill to him and demanded payment thereof, whereupon he answered "I can't pay".

Thereafter on the same day I proceeded to the office of AB at 80, Kerk Street, Pretoria, the drawer of the said bill, and gave him notice of the dishonor thereof by the said acceptor and demanded payment thereof, whereupon he replied "I have no funds".

On the same day I wrote a letter to E.F. the endorser of the said bill, a copy of which is annexed, which letter was duly addressed and posted by registered post, postage prepaid. All of which being unsatisfactory I, the notary at the request of the said G.H., do by these presents protest against the drawers and endorsers of the said bill and all other parties thereto for all loses and damages which have been incurred by reason of the non-payment of the said bill.

THUS DONE AT Pretoria on this the 16th day of June, 2014.

Which I attest

(Sgd.) S KING NOTARY PUBLIC

(6)

4.2 Section 27(1) of the Bills of Exchange Act No 34/1964 defines a "holder in due course" as a holder who has taken a bill, complete and regular on the face of it, under the following circumstances: He must have become its holder before the bill was overdue, and, if it had previously been dishonoured, without notice thereof;

He must have taken the bill in good faith and for value and at the time the bill was negotiated to him he must have had no notice of any defect in the title of the party who negotiated it.

In terms of Section 36{b) a holder in due course holds the bill free from any defect in the title of prior parties as well as from mere personal defences available to prior parties among themselves, and may enforce payment against all parties liable on the bill.

In terms on Section 36{c){i) he acquires "a good and complete title to the bill" when it is negotiated to him, even if the title of his transferor is defective.

Section 27(3) also provides that a holder of a bill, whether for value or not, who derives his title to the bill through a holder in due course, and who is not himself a party to any fraud or illegality affecting it, has all the rights of that holder in due course as regards the acceptor and all parties to the bill prior to that holder. (4)

LEGAL EDUCATION AND DEVELOPMENT /L.E.A.DJTM

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QUESTION 5 [201

5.1 PROTOCOL NO.

NOTARIAL DEED OF CESSION OF REAL RIGHTS (in terms of Section 27(4 ) of the Sectional Titles Act No. 95 of 1986)

BE IT HEREBY MADE KNOWN:

THAT on this the 10 October 2014, before me

SD

of Pietermaritzburg, Province of Kwa-Zulu Natal, a duly admitted and sworn Notary Public, and in the presence of the undersigned witnesses there appeared:

1. JOY SMITH (previously WILLIAMS)Identity Number:Married out of community of property

(hereinafter referred to as the Cedent)

2. PATRICIA SPENCERIdentity Number:unmarriedin her capacity as Executrix in theEstate of the Late TIMOTHY SPENCERacting by virtue of letters of executorship issued by the Master of the High CourtKwazulu Natal on xxxxxxEstate Number 1234/2014/DBNand in her personal capacityas surviving spouse of the said deceased to whom she was married in communityof property

(hereinafter referred to as the Cessionary)

A certified copy of which letter of Executorship is filed in my protocol.

AND the Appearers declared that:

WHEREAS the Cedent did on 5 November 2013 sell to TIMOTHY SPENCER and PATRICIA SPENCER Exclusive Use Area Parking Bay P48 in the Sectional Scheme Bright Lights for the sum of TWO HUNDRED and FIFTY THOUSAND (R250 000.00);

AND WHEREAS TIMOTHY SPENCER died on 6 December 2013;

NOW THEREFORE:


Page 17

1. the Cedent hereby cedes in terms of Section 27{4) of the Sectional Titles Act 95 of1986, to:

The Joint Estate of the Late TIMOTHY SPENCER Estate Number 1234/2014/DBN And surviving spouse PATRICIA SPENCER Identity Number:

unmarried

Their heirs, executors, administrators or assigns, the following exclusive use area, namely:

Parking Bay P48 measuring 18 (EIGHTEEN ) square metres, comprising part of the common property in the scheme known as BRIGHT LIGHTS situate at SARNIA, ETHEKWINI MUNICIPALITY, and more fully described on Sectional Plan Number SS28/2008

HELD under Notarial Deed of Cession of Exclusive Use Area No. SK 56/2010;

2. The Parties declare the consideration paid by Cessionary to the Cedent for theCession herein is the sum of TWO HUNDRED and FIFTY THOUSAND {R250 000.00);

3. the Cessionary accepts the cession of the Exclusive Use Area Parking Bay P48.

THUS DONE AND EXECUTED at PIETERMARITZBURG on the day, month and year aforewritten in the presence of the subscribing witnesses and of me, the Notary.

AS WITNESSES:

1. ----------JOY SMITH

2.

5.2 i) ii) iii) iv)

5.3 i) ii) iii)

PATRICIA SPENCER

NOTARY PUBLIC

Notarial Deed of Cession of EUA Transfer Duty Receipt Rates Certificate Notarial Deed of Cession of Exclusive Use Area No. SK 56/2010

Minute of Notarial Deed of Cession of EUA

{12)

{2)

Certified copy of Letters of Executorship in Estate Late Timothy Spencer Certified copies of Identity documents and marriage certificates of Sellers and Purchasers (2)


Page IB

5.4 No, she would not be able to purchase a Parking Bay if she does not own a unit in the scheme Sunshine. If she is not an owner in the scheme Sunshine then she will not be a member of the Body Corporate and therefore cannot obtain any real rights therein.

(2)

5.5 a) Yes, this will be a Unilateral Notarial Deed of Cession of Exclusive Area draftedin terms of Section 27(1) of the Sectional Titles Act 95 of 1986. (1)

b) Certificate of Real Right No. SK ...... /20 ..

QUESTION 6

6.1

NOTARIAL COVERING BOND

KNOW ALL MEN WHOM IT MAY CONCERN:

That on this day of 2014,

(1)

[20]

Before me WY , a Notary Public, by lawful authority, duly sworn and admitted, practising at Cape Town, in the Province of the Western cape, personally came and appeared

ANDREW JOHNSON IDENTITY NUMBER: UNMARRIED (hereinafter referred to as the "Mortgagor")

AND THE APPEARER DECLARED THAT:

A. The Mortgagor resides and carries on business as a fruit farmer on the Farm HEAL THYHEARTS, situate in Phillipi, in the Province of the Western Cape;

B. The Mortgagor has agreed to pass this bond in favour of ABC BANK LIMITEDRegistration number:(hereinafter referred to as the "Mortgagee")

as a continuing covering security for the Mortgagor's existing and /or future indebtedness to the Mortgagee as more fully described below:

NOW THEREFORE:

1. The Mortgagor hereby acknowledges that he is indebted to the Mortgagee, theirsuccessors in office, order or assigns for the sum of R2 000 000,00 (two million rand)for monies lent and advanced and to be advanced in the future, in terms of a loanagreement entered into between the Mortgagor and the mortgagee dated(the loan agreement), and arising therefrom, all and any sums of money which shallnow or may in the future be owing or claimable by the Mortgagee from whatever causearising;

LEGAL EDUCATION AND DEVELOPMENT {L.E.A.DJTM

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2. The Mortgagor further declares that he may in addition become indebted in respect ofdebts to the Mortgagee up to the further sum of R500 000,00 ( five hundred thousandrand) (the additional sum") to secure additional and contingent costs and charges;

3. As security for the due payment of the secured debt, the Mortgagor herebydeclares to firmly bind specially to and in favour of the mortgagee the following:

a. Tractor 1, Mitshubishi, Chassis Number. ..... Engine Number ........ . b. Tractor 2, Mitshubishi, Chassis Number ...... Engine Number ........ . c. Tractor 3, Mitshubishi, Chassis Number ...... Engine Number ........ .

Note to examiners: In terms of the Rights in Aircraft act, certain aircraft are prohibited from being used as movable security. The Cessna light aircraft should therefore not be used in the security clause.

(hereinafter referred to as the "ASSET') and {ONE COULD ALSO ADD A CLAUSE BINDING THE MORTGAGORS MOVABLE ASSETS GENERALLY TO INCLUDE ALL THE FARMING IMPLEMENTS WHICH CAN'T SPECIFICALLY BE IDENTIFIED}

And Generally, the Mortgagors movable assets of every description and of whatsoever nature and wheresoever situate, and such as the Mortgagor now possesses or may at any time in the future become possessed of without any exception (all of which are hereinafter collectively referred to as "the General Assets", which expression, unless clearly inconsistent with the context, will be interpreted also as a reference to each separate asset hereby bound) submitted them all and the choice thereof to constraint and execution as the law directs, and the Mortgagor warrants that the asset and the general assets are fully paid for and not otherwise bonded, hypothecated, encumbered or pledged in any way.

4. The Mortgagor further declares that this bond shall be in addition to (and not insubstitution for) any other security or securities now held or hereafter to be held by theMortgagee in respect of the secured indebtedness and interest thereon, or in respectof any portion of the aforesaid indebtedness; and

5. The Mortgagor further declares that this bond shall be subject to the following terms,conditions and stipulations:

6. PAYMENT OF SECURED DEBT AND INTEREST6.1 The secured debt shall be repayable by the Mortgagor to the Mortgagee in

accordance with the terms of the loan agreement. In the event of default by the Mortgagor, the secured debt shall, save to the extent otherwise agreed by way of written and duly signed agreement, be repayable by the Mortgagee to the Mortgagor against written demand;

6.2 All payments in respect of any amounts claimable from the Mortgagor by the Mortgagee in terms of this bond, whether in respect of capital, interest or otherwise shall be made in cash, free of exchange, set-off, commission or other deduction at such address as the Mortgagee may from time to time in writing direct to the Mortgagor.

LEGAL EDUCATION AND DEVELOPMENT /L.E.A.DP,,..

Page I 10

7. AMOUNTS INCLUDED IN THE ADDITIONAL SUMAll:7.1 costs, charges and disbursements in issuing notices and demands and in instituting

and prosecuting legal proceedings for the recovery of any sums of money hereunder; and

7 .2 moneys disbursed by the Mortgagee or other legal holder of this bond in respect of payments to be made to third parties by the Mortgagor in terms hereof, but made by the Mortgagee on behalf of the Mortgagor in exercise of its rights hereunder; and

7.3 costs generally of preserving and realising the security under this bond and which the Mortgagee may incur, advance, expend or be entitled to recover, including costs between attorney and own client;

shall be paid by the Mortgagor to the Mortgagee forthwith on demand and are secured hereunder to the extent of the additional sum.

8. MORTGAGOR'S NEGATIVE OBLIGATIONSThe Mortgagor shall not without the Mortgagee's prior written consent, which consentshall not unreasonably be withheld:

8.1 sell, alienate, dispose of, transfer or give up possession in any way of the asset;8.2 pledge, cede, mortgage, hypothecate or otherwise encumber the asset;8.3 remove or permit the removal of the asset from the premises from which the

Mortgagor carries on business;

and the Mortgagor shall, during the continuation of this bond, continue to conduct the business of a table grape and apple farmer in the ordinary and normal course.

9. MORTGAGOR'S POSITIVE OBLIGATIONS

The Mortgagor shall:

9.1 promptly and regularly pay all rentals, taxes, rates, licence fees and other charges in respect of his business and premises, and in particular (where applicable) in respect of the asset;

9.2 keep the asset in good condition, it being agreed that for purposes hereof any asset acquired by the Mortgagor in replacement of the asset shall for all purposes hereunder be deemed to be substituted for the asset;

9.3 insure and keep insured the asset for a sum and with an insurance company approved by the Mortgagee against risk of loss or damage from fire, theft and such other risk which the Mortgagee at any time in writing directs and shall cede the relevant policy or policies to the Mortgagee as collateral security for all indebtedness under this notarial bond;and

9.4 permit the Mortgagee at any time during normal business trading hours to inspect the asset, upon the Mortgagee's giving to the Mortgagor reasonable notice of any such inspection.

LEGAL EDUCATION AND DEVELOPMENT {L.E.A.D,P1

[FROM HEREON THE REST CAN BE NOTED IN POINT FORM]

10. EVENTS OF DEFAULT

An event of default shall occur if the Mortgagor:

10.1 breaches any of the terms, conditions or stipulations of this bond;

Page 111

10.2 makes or attempts to make or recommends any general offer or compromise with any or all of its creditors;

10.3 suffers a judgment of any competent court against it which remains unsatisfied for a period of twenty one days of the date of the judgement first coming to its knowledge;

10.4 is sequestrated, is placed in liquidation or under judicial management whether provisionally, voluntarily or otherwise;

10.5 gives any notice or takes any steps to convene a meeting of its shareholders to adopt a resolution placing it in liquidation or under judicial management whether provisionally, voluntarily or otherwise;

10.6 changes its accounting policies or those of any of its subsidiaries or controls companies in any material respect without the Mortgagee's prior consent (it being in the sole discretion of the Mortgagee what shall constitute change of accounting policies and what is material);

10.7 commits any breach of any material contract binding upon it entitling the other party to that contract to cancel the same or to accelerate performance by the Mortgagor of any obligation due thereunder (it being agreed that the Mortgagee in its sole discretion shall be entitled to determine what constitutes a material contract);

11. MORTGAGEE'S RIGHTS ON THE HAPPENING OF AN EVENT OF DEFAULT

Upon the happening of an event of default referred to in clause 11 above, theMortgagee shall, without prejudice to any other right which it may have in terms hereofor at law, be entitled in such order and combination and at such time as it may think fit:

11.1 notwithstanding the terms and conditions of any indebtedness of the Mortgagor to the Mortgagee arising before, simultaneously with or after the execution of this bond (save only to the extent that the provisions of this sub-clause 11.1 are expressly overridden in writing referring to this sub-clause 11.1 and signed by the Mortgagor and the Mortgagee) to declare the full amount of the Mortgagor's indebtedness to the Mortgagee from whatsoever cause arising to be due and payable forthwith and to claim and recover the same from the mortgagor forthwith on demand;

11.2 forthwith to enter upon any premises occupied by the Mortgagor and to take possession of such premises and the asset, whether kept in such premises or elsewhere;


Page 112

11.3 to hold the asset as security for payment of all amounts owing by the mortgagor to the Mortgage and to retain such possession for so long as it may deem fit;

11.4 to dispose of the asset by public auction or by private treaty and on such terms and conditions as it in its sole discretion may deem fit as an arms-length transaction and at the best possible price and to convey good valid and free title to the purchaser or transferee thereof;

11.5 to have the asset excused and/or attached by legal process;

11.6 to apply for provisional sentence and to execute upon the asset;

11. 7 to employ such other remedies and to take such other steps against the Mortgagor asare allowed in law; or

11.8 to do all such things as the Mortgagee in its sole discretion may deem fit for the continuation of the Mortgagor's business in the name and at the expense of the Mortgagor.

12. NON-LIABILITY OF MORTGAGEENeither the Mortgagee nor any of its employees, servants, agents or independentcontractors shall be liable for any loss or damage of whatsoever nature to theMortgagor's business and/or the asset however arising or caused, including inparticular, loss or damage caused by the exercise of rights in terms of this bond. TheMortgagor hereby indemnifies and holds the Mortgagee and its managers, officers,employees, servants, agents or independent contractors harmless against all and anyclaims of whatsoever nature which may be made by any person against any of themarising out of or in connection with any exercise of its rights in terms hereof. TheMortgagor acknowledges that the Mortgagee has accepted the benefits of this clauseon behalf of itself and its managers, officers, employees, servants, agent andindependent contractors.

13. POWER OF ATTORNEY BY MORTGAGOR IN FAVOUR OF THE MORTGAGEEThe Mortgagor hereby constitutes the Mortgagee its order or assigns, with power ofsubstitution, to be the Mortgagor's true and lawful attorney and agent irrevocably andin rem suam (but on the basis that the power of attorney hereby granted is ancillary tothe Mortgagee's rights hereunder, is given for the purposes of facilitating theenforcement thereof and shall not be construed as derogating in any way from suchrights):

13.1 to do all acts referred to in clause 11 above and all such further acts as may be necessary or convenient to give effect to its rights in terms thereof;

13.2 on the Mortgagor's behalf to sign and complete all forms, declarations, agreements and the like that may be necessary or desirable to record any acts referred to in 11 and 13.1 above including, but not by way of limitation, any sale, disposal or transfer of the asset or of any insurance policy referred to in this bond.

LEGAL EDUCATION AND DEVELOPMENT {L.E.A.DJT,..

14. CERTIFICATE

Page 113

Any certificate signed by any director or manager for the time being of the Mortgageespecifying the amount owing by the Mortgagor to the Mortgagee in respect of thesecured debt or any interest thereon shall be prima facie proof of the amount of suchindebtedness for all purposes including in particular for the purposes of obtainingprovisional sentence or judgement under this bond. It shall not be necessary to provethe appointment or authority of such director or manager.

15. EXISTING AND FUTURE DEBTSThis bond shall cover debts generally, including both existing and future indebtedness,and the security afforded to the Mortgagee by this bond shall be a continuing onenotwithstanding any fluctuation in the amount or even temporary extinction ofindebtedness to the Mortgagee or extinction of any indebted ness in terms of theUsury Act, no 73 of 1968, as amended, or otherwise.

16. APPROPRIATION OF PAYMENTPayment of any indebtedness secured by this bond may be appropriated by theMortgagee towards such of the Mortgagor's indebtedness to the Mortgagee as theMortgagee in its sole and unfettered discretion may decide.

17. CONTINUATION OF SECURITYThis bond shall remain in full force and effect as a continuing covering security inpursuance of the foregoing provisions thereof for the due discharge of all obligations ofthe Mortgagor to the Mortgagee, performance whereof is secured by this bond, untilthis bond shall have been cancelled with the consent of the Mortgagee in the DeedsRegistry.

18. JURISDICTIONThe Mortgagor consents in terms of Section 45 of the Magistrate's Court Act, no 32 of1944, as amended, to the Mortgagee taking any legal proceedings for the enforcementof any of its rights under this bond or recovery of moneys secured under this bond orotherwise, in the Magistrate's Court of any district having jurisdiction in respect of theMortgagor by virtue of Section 28(1) of the aforesaid Act.

19. SEVERABILITYEach provision of this bond is severable from the remaining provisions of this bondand is separately enforceable.

20. PREFERENCE OF INTERESTIn the event of the sequestration or winding up or liquidation as the case may be of theMortgagor, or in any competition amongst creditors as to their legal order ofpreference, interest shall be secured preferentially to such extent as by law preferenceis allowed to interest.

21. DOMICILIUM CITANDI ET EXECUTANDIThe Mortgagor hereby chooses as domicilium citandi et executandi for all purposesunder this bond the address at which it carries on business first aforementioned whereall notices and/or processes arising out of or in connection herewith may validly bedelivered to or served upon the Mortgagor.

LEGAL EDUCATION AND DEVELOPMENT /L.E.A.D/D1

Page I 14

22. PAYMENT OF COSTS AND CHARGESThe Mortgagee shall pay all costs and charges of an incidental to the negotiation,preparation, drafting and registration of this bond, including also stamp duty thereon,and shall also be liable for the costs of cancellation of this bond.

23. INTERPRETATION OF THIS BONDIn this bond, unless clearly inconsistent with the context:

23.1 any reference to the singular shall be deemed to include a reference to the plural;

23.2 any reference to any gender shall be deemed to include also a reference to other genders;

23.3 where costs and charges, expenses or disbursements are to be paid by the Mortgagor in terms hereof and the same relate to legal fees and disbursements, such legal fees and disbursements shall be recoverable by the Mortgagee from the Mortgagor on the scale as between an attorney and his own client;

23.4 the headings of clauses in this bond are for reference purposes only and shall not be taken into account in construing the content thereof; and

23.5 each clause and provision shall be entitled separate and divisible from other clauses, and the unenforceability or invalidity of any particular clause or provision shall not affect the enforceability or validity of any other clause or provision.

24. NO WAIVER CONSTITUTED BY CONDUCTNo leniency or extension of time that may be granted by the Mortgagee to theMortgagor for the payment of any amount or the performance of any obligation and nocourse of conduct between the Mortgagee and the Mortgagor or indulgence shown bythe Mortgagee to the Mortgagor either prior to the execution hereof or thereafter shallconstitute or be construed as a waiver, novation or variation of any of the terms orconditions hereof nor excuse the Mortgagor from exact compliance of the same norshall the same create any estoppels against the Mortgagee or otherwise vary, novateor in any way affect any of the Mortgagee's rights hereunder. No waiver of any of theMortgagee's rights hereunder shall be binding on the Mortgagee unless reduce towriting and signed by the Mortgagee.

THUS DONE and SIGNED at CAPE TOWN aforesaid, on the day of July 2014 first aforewritten in the presence of the subscribing competent witnesses:

AS WITNESSES:

1.

2.

LEGAL EDUCATION AND DEVELOPMENT {L.E.A.D/Th1

q.q. APPEARER

QUOD ATTESTOR

NOTARY PUBLIC

(10)

Page 115

6.2 The growing crops cannot be used as security as they accede to the land. As such they are regarded as immovable property. If the crops are harvested, then they would be regarded as movable. (2)

6.3

NOTARIAL COLLATERAL BOND

BE IT HEREBY MADE KNOWN

That on this day ................................................... ...... before me XY, Notary Public, duly sworn and admitted, residing and practising at Cape Town in the Province of the Western Cape, personally came and appeared:

Sally Smith

She being duly authorised thereto by a Power of Attorney signed at Cape Town on .............................. and granted to her by

ANDREW JOHNSON IDENTITY NUMBER UNMARRIED (THE MORTGAGOR)

Residing and carrying on business at Which Power of Attorney has been exhibited to me and now remains filed in my protocol

AND THE APPEARER, on behalf of the Mortgagor declared that:

WHEREAS THE Mortgagor is truly and lawfully indebted and held and firmly bound to and in favour of

ABC BANK LIMITED REGISTRATION NUMBER XXXXXX (THE MORTGAGEE)

In the sum of R2 000 000.00( .......................................................... ) arising from and being money lent and advanced and to be advanced as security for which indebtedness the Mortgagor has registered Mortgage Bond No B .............................. ( the Principal Bond) in the Deeds office at CAPE TOWN over the property thereby especially hypothecated.

AND WHEREAS the Mortgagee requires the indebtedness of the Mortgagor under the Principal Bond to be further secured by the hypothecation of the undermentioned property as collateral security therefore.

AND THE APPEARER, did by these presents declare and acknowledge the Mortgagor to be held and firmly bound to and in favour of the Mortgagee, its successors in title, order or assigns in the aforesaid sum of R2 000 000.00( ...................................... ) together with the sum of R500 0000, as a preferent charge for costs and other charges, as more fully set out in the principal bond, and as collateral security for the due and proper repayment of the aforesaid sums with interest mentioned or referred to in the Principal Bond.

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And as security therefore the Appearer on behalf of the mortgagor declared to bind specially the following movable assets:

2014 Tractor Mitshubishi CA ............... Chassis number ... ......... .. Engine number ......... .. 2014 Tractor Mitshubishi CA .............. Chassis number ............... Engine number .......... ..

And the Appearer, on behalf of the Mortgagor, declared that this Notarial Collateral bond is subject to all the terms and conditions set out in the Principal Bond as fully and effectually as if the same were inserted herein and to the special condition that upon payment and discharge of all obligations under the Principal Bond this notarial collateral bond will be null and void but shall otherwise be and remain of full force and effect.

THUS DONE AND EXECUTED AT

QUESTION 7

(8)

(171

7.1 In terms of section 40 of the Deeds Registries Act 47 of 1937 two or more pieces of land can be consolidated which are

7.2.

7.1.1 Contiguous to each other; 7 .1.2 Owned by the same person. The two properties are owned by two different registered owners and are also not contiguous.

In terms of RCR 17 of 1961 and confirmed by RCR 1 of 1966 the registrars of deeds resolved that it is possible to tie properties where such properties are held by different owners. It is thus not necessary that the properties being tied have to be owned by the same person as is the case with consolidations.

In terms of RCR 44 of 2010 it is not permissible to register a notarial tie agreement in respect of a long term lease agreement and land with the effect that the land and the lease agreement cannot be separately dealt with. (4)

PROTOCOL NO

NOTARIAL TIE AGREEMENT

KNOW ALL MEN WHOM IT MAY CONCERN:

THAT on before me ·--------

XXX

Notary Public by lawful authority, duly admitted and sworn, residing and practicing at PRETORIA, GAUTENG PROVINCE and in the presence of the subscribing witnesses, personally came and appeared-

xxx

in her capacity as duly authorised agent

LEGAL EDUCATION AND DEVELOPMENT /L.E.A.D/IT'1

Page 117

1.1 By virtue of a Special Power of Attorney signed at xxx on xxx and granted to her by -

XXX

and

in his capacity as director of DEVCO PROPRIETARY LIMITED Registration Number xxx duly authorised by virtue of a Resolution dated ........ .

(hereinafter referred to as the DEVCO)


and

XXX duly authorised by a resolution dated ...... by the Trustees for the time being of PROP TRUST Registration number IT xxx acting in terms of Letters of Authority issued by the Master of the High Court of South Africa (North Gauteng High Court, Pretoria) at Pretoria on xxx

(hereinafter referred to as PROP TRUST)


XXX in her/his capacity as xxx of xxx MUNICIPALITY duly authorised by virtue of a Resolution dated ........ .

(hereinafter referred to as the COUNCIL)

which Powers of Attorney, Letters of Authority and Resolutions have this day been exhibited to me, the Notary, and now remain filed in my Protocol.

AND THE APPEARER DECLARED THAT:

WHEREAS:

1. DEVCO is the registered owner of Erf 528 Bryanston xxxx on which property DEVCOintends to develop a shopping centre which property is too small to provide adequateparking;

2. PROP TRUST is the registered owner of Erf 624 Bryanston xxx which property issituated across the road from Erf 528 Bryanston and which property has been zoned forpurposes of parking;

LEGAL EDUCATION AND DEVELOPMENT [L.E.A.Df'r,1

Page 118

3. The COUNCIL requires that the two properties must be notarially tied.

NOW THEREFORE THE PARTIES HEREBY AGREE AS FOLLOWS:

1. The parties agree that the said properties will on registration hereof be notarially tiedand be regarded as one property for all intents and purposes, that none of theproperties shall be sold or transferred otherwise than to the same transferee withoutthe prior written consent of the Council first being obtained and that the Council shallhave an absolute discretion to grant or withhold such consent.

2. That this agreement shall be registered against the Title Deeds of both properties.

3. No consideration shall be paid by either party to the other in respect of this agreement.

4. That all costs of preparing, executing and registering this deed shall be paid byDEVCO.

THUS DONE AND EXECUTED AT PRETORIA on the day, month and year aforementioned in the presence of the undersigned witnesses.

AS WITNESSES:

1.

2.

QUOD ATTESTOR

NOTARY

7.3. Documents to be filed in Protocol: 1. Resolution by DEVCO (PTY) LTD;2. Letters of Authority by PROP TRUST;3. Resolution by PROP TRUST signed by all the Trustees as it appears on the

Letters of Authority;4. Council resolution;

(8)

5. Special Powers of Attorney except if signed in the presence of the Notary. (2)

7.4 Documents to be lodged: 1. Duly executed Notarial Tie Agreement;2. Original title deeds for both properties. (2)

7.5 The COUNCIL will be substituted by the Bank as a party to the notarial tie agreement. (1)

TOTAL: [100]

LEGAL EDUCATION AND DEVELOPMENT {L.E.A.Dj01