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dc.contributor.advisorPienaar, G.J.
dc.contributor.authorTheunissen, Anna Francina
dc.date.accessioned2018-02-16T09:57:12Z
dc.date.available2018-02-16T09:57:12Z
dc.date.issued2017
dc.identifier.urihttp://hdl.handle.net/10394/26359
dc.descriptionLLM (Estate Law), North-West University, Potchefstroom Campus, 2017en_US
dc.description.abstractAll South African property transactions require one or more clearance certificates to effect transfer of property into the name of a transferee. This can either be in terms of section 118(1) of the Local Government: Municipal Systems Act 32 of 2000 (the MSA) read with the security provision contained in section 118(3) of the same Act that creates a statutory hypothec in favour of the municipality, section 15B(3)(a)(i)(aa) of the Sectional Titles Act 95 of 1986 or even in terms of a condition of title registered in favour of a home owners’ association (hereinafter HOA). In City of Tshwane Metropolitan Municipality v Mathabathe 2013 4 SA 319 (SCA) the Supreme Court of Appeal held that once the debt of the preceding two years has been paid to a municipality, it is obliged to issue a clearance certificate, but that transfer of the property to the transferee will not extinguish the security held by the municipality for historical debts. The decision immediately raise red flags in the minds of practitioners and property buyers alike as the effect of these provisions could be that the local authority will be able to sell the property now registered in a bona fide third party’s name to recover the historical debt of a previous owner. Section 25(1) of the Constitution of the Republic of South Africa, 1996 prohibits the arbitrary deprivation of private property. Whether section 118(1) and 118(3) of the MSA fall afoul of these constitutional provisions is a question investigated in this study. The study also examines the content and constitutionality of similar embargo provisions in favour of bodies corporate and HOAs. This study finds that the embargo provisions contained in section 118(1) of the MSA, section 15B(3)(a)(i)(aa) of the Sectional Titles Act 95 of 1986 and an HOA clause, although it does deprive an owner of specific entitlements of ownership in property will not be arbitrary and therefore not unconstitutional. It is recommended that section 118(1) and section 15B(3)(a)(i)(aa) remain unchanged but that legislation be enacted to legitimise and regulate HOAs. The study finally concludes that section 118(3) of the MSA constitutes an arbitrary deprivation of property and is unconstitutional. It is recommended that the section be amended to be subject to the same two year time constraint as section 118(1) of the MSAen_US
dc.language.isoenen_US
dc.publisherNorth-West University (South Africa) , Potchefstroom Campusen_US
dc.subjectImmovable propertyen_US
dc.subjectReal securityen_US
dc.subjectEmbargo and security provisionsen_US
dc.subjectSectional Title Schemeen_US
dc.subjectHome Owners' Associationen_US
dc.subjectLeviesen_US
dc.titleThe effect of embargo and security provisions on immovable property transactionsen_US
dc.typeThesisen_US
dc.description.thesistypeMastersen_US


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