THE PROCEDURE FOR A TRANSFER:
What is conveyancing?
Conveyancing is the name given to the specialized process of transferring immovable property from one person to another. A Conveyancer is an admitted attorney who has passed a specialized exam and been admitted in the High court. In a nutshell, conveyancing encompasses all property related work, including the registration of transfer of immovable property (such as vacant land, flats, commercial or residential property), bonds over immovable property as well as subdivisions and consolidations of property in the deeds office.
Who appoints a Conveyancer?
It is always the seller's right to appoint a Conveyancer, only when the seller and purchaser agree otherwise may this rule change.
So what happens next?
Once the Conveyancer has received this instruction, his tasks include making the seller and purchaser fully aware of all the important dates, ensuring the purchaser has paid his deposit and checking that bond approvals have been granted on time. Once all the necessary information and documentation has been gathered, all the documents signed and receipts and clearances received, the Conveyancer will then lodge the transaction for registration at the deeds office. From lodgment, the examination process takes roughly six to nine working days before the documents come up for registration. The Conveyancer will continue with registration if all monies for the purchase price have been paid or secured by a guarantee or bond and all costs have been paid.
Who do I pay a deposit to?
The ‘Agreement of sale’ or ‘Offer to purchase’ normally sets out where the deposit must be paid normally to the Conveyancer and into his trust accounts. The Conveyancer will invest it on your behalf, and the interest earned will be paid to you on registration of transfer.
Is a power of Attorney really necessary?
The seller or purchaser may sign a special power of attorney authorizing another person to sign all documents on their behalf. This is handy if you have bought or sold property and you are not in the country. Due to South African law, any documents signed outside the borders of the country have to be signed according to strict procedures i.e. before a Notary Public or member of the South African Consulate or both (depending on which country you are in).
What is a Declaration in respect of status?
This is basically a declaration regarding whether you are married or not, and if you are married, whether you are married in or out of community of property, according to Moslem rites or according to the laws of any other country. The Conveyancer needs to know this as the documents will be drawn up according to this status.
What is Transfer Duty Declaration?
This document is submitted to the receiver of revenue when transfer duty is paid. It confirms that the purchase price stated in the Agreement of sale is the correct one. This declaration also needs to state your income tax number, and if you are not registered for income tax, your annual income from all sources.
What is FICA?
Background The Financial Intelligence Centre Act (hereinafter referred to as "FICA") was passed by Parliament in December 2001 and is being promulgated in a phased approach. FICA effectively establishes a partnership between the private and the public sector to assist in the identification of proceeds of unlawful activities thereby combating money laundering activities. In terms of FICA, the Money Laundering Advisory Council and Financial Intelligence Centre (hereinafter referred to as "FIC") were established. Who is affected? All accountable institutions including estate agents, attorneys, banks, insurance companies. What is money laundering? Money laundering is the process of manipulating the proceeds of crime in order to conceal the nature of its true source. Money that started out dirty will end up clean and any act in connection with any proceeds of crime, whether it is in the form of money or property or any other form can constitute a laundering offence.
FICA requires individuals to provide the following documentation in order for the Conveyancer to transfer a property into your name.
1.1 Copy of identity book
1.2 Copy of marriage certificate (if applicable)
1.3 Copy of a utility bill confirming residential address
1.4 Copy of Tax return reflecting tax number
1.5 Copy of Divorce Order (if applicable)
1.6 Copy of Antenuptual Contract (if applicable)
What is the procedure with mortgage or bond documents?
Upon signature and payment of your deposit you will need to make a bond application through your bank or an appointed bond originator. The appointed bond originator will require copies of your ID, three months bank statements and proof of income in order to make the application on your behalf to a financial institution. When your bond is approved, your bank will forward the bond registration instructions to the Conveyancer. The documents will then be drawn up in accordance with the transfer documentation and banks instructions. You will have to sign all of these documents, including the Mortgage loan agreement, which sets out the interest rate, installments and terms, the mortgage bond which gets registered at the deeds office as well as affidavits and the debit order authority.
Who arranges these transactions?
The Conveyancer attending to the transfer and bond registration will handle all the transactions.
What happens at the deeds office?
Once the deeds are lodged, they are examined by a junior and senior examiner. The chief deeds controller then makes the final decision whether to pass or reject them. If the deeds get passed, they must be handed in for registration to take place the next working day. Deeds may be rejected for various reasons, such as discrepancies regarding the spelling of names, ID numbers, Erf descriptions etc. If it is something that can be easily remedied, the Conveyancer will re-lodge the deeds after amending them.
Estate agents' duties under FICA
FICA imposes the following four categories of duties on estate agents:-
1. The duty to establish and verify the identity of clients, commonly referred to as the "know-your-client-requirement" An estate agent may not establish a business relationship with a client unless the estate agent has taken the prescribed steps to establish and verify the identity of the client. o The client will be the person who has given an estate agent a mandate. o We believe that it is important to get as much information as possible at the mandate stage and inform the client as to what documentation is required. o The client's identity must then be verified before the mandate is performed.
2. The duty to report suspicious transactions to FIC o An automatic reporting duty relating to cash transactions and electronic transfers of money to or from the Republic in excess of the prescribed amount (not yet implemented). o Reporting of suspicious or unusual transactions. This means the business believes it has received or is about to receive the proceeds of unlawful activities.
o Reporting of evasion or attempted evasion of a duty to pay a tax, duty or levy imposed by SARS. o Reporting that a business has been or is about to be used in any way for money laundering purposes.
3. Submitting of report o Electronically on the FIC website at www.fic.gov.za; o Fax to FIC at (012) 315-5828; or o Delivered to FIC at their offices in Pretoria at 14th Floor, 240 Vermeulen Street, Pretoria. A report has to be submitted as soon as possible, but not later than 15 working days after the suspicion arose.
4. Internal Administrative Duties o A duty to keep record of client's transactions for a period of 5 (five) years. o A duty to formulate and implement internal rules to ensure compliance with the act. o Duty to train staff. o Duty to appoint a compliance officer to monitor compliance with the act. In regards to point 1 to 4 above, your company will in most cases take care of the administrative duties as set out above. Tipping Off Tipping off is a serious offence and you might be prosecuted. As a result, no tipping off is allowed. Penalties for non-compliance Imprisonment for a period not exceeding 15 years or to a fine not exceeding ten million rand.
General guidelines to consider
1. Suspicion must be based on facts.
2. No suspicion arises merely by reason of a person's race, creed, nationality, sexual orientation, gender or beliefs.
3. A transaction can be suspicious regardless of the amount involved, but cash may or may not be suspicious depending on the amount, type of transaction involved and surrounding circumstances.
4. An estate agent is required to make a reasonable evaluation of all relevant facts and circumstances and is not to view every client and customer suspiciously.
5. A transaction can be assumed to be above board unless there are circumstances warranting an estate agent to reasonably believe otherwise.
Suspicion arises in our opinion if:
1. An estate agent receives a large amount in trust from a third party on the pretense that the money is to be used for property investment purposes and the purchaser then asks for the money to be released on the basis that he does not wish to proceed with the purchase of the property.
2. A large deposit on a sale transaction is paid by an unidentified third party.
3. A purchaser buys a property without inspecting the same.
4. The true purchase price of a transaction is not disclosed and the parties wish to exchange part of the purchase price without disclosing the same in the agreement.
5. The name of the buyers change just before the transaction is closed.
6. A buyer insists that the property be registered in a party's name other than his spouse.
7. An estate agent is asked to deposit money in his trust account and to issue a trust cheque in return for a commission or a fee.
8. An estate agent is asked by a seller to overstate the value of a property as at October 2001 in order to evade payment of Capital Gains Tax.
9. The parties wish to split the purchase price between the property and movables and such split is unrealistic.
10. If an estate agent is asked to attend to a transaction where the money is deposited into an overseas account. Hints on reporting Continue with the transaction and continue to provide the same level of service that you usually would. Treat all clients with courtesy even if they refuse to answer your questions. Do not tip off and proceed to report the suspicious transaction in the prescribed manner. The above should be seen as very brief comments on FICA and our interpretation thereof For further information contact us or SARS.
NON SOUTH AFRICAN RESIDENTS Normally property is bought through a Real Estate Agent, realtor or broker. Should you consider purchasing a property privately, it is recommended to involve a reputable estate agent or conveyancer to assist you. The South African government allows foreigners (individuals who reside outside the countries borders) to purchase property in South Africa, subject to Reserve Bank approval, either as: Natural persons Legal entity (C.C / Company / Trust) (Legal entity may take up to 30 days to be registered) Foreigners / Nonresidents may utilize local mortgage bond finance on the basis of 50% cash being brought into the country via Reserve bank approval. On finding a suitable property, a nonresident can submit a written offer to the owner of the property to purchase the property, subject to a maximum of 50 % bond from a local bank (an "authorized dealer") and subject to Reserve Bank approval, which may take up to 14 days, for written confirmation.
The mortgage bond finance approval from a bank is based on :
a) The value of the property and
b) the credit rating/risk of the purchaser. General: All offers to purchase property in S.A. must be made in writing to be valid. (Any advise required must be sought prior to committing an offer in writing) Once the seller has accepted an offer (in writing) a contract comes into being, even if it contains any suspensive conditions e.g. Subject to the approval of mortgage bond finance and approval by the Reserve Bank. Normally all conditions are linked to a definitive time scale. Purchasers are then bound to the contract, unless the purchase price is below R250 000, when the purchaser has a "cooling-off" period in which they may withdraw their offer. (Please discuss this with an agent) South Africa has a sophisticated, dependable banking system with healthy competition amongst the individual banks on products and rates. Funds are secure and the transfer of funds to registered banks are guaranteed. Once funds are received and guarantees are called for by conveyancing attorney these maybe released to the attorney pending registration of transfer (ownership) Ownership can be partial or wholly-owned by foreigners, with the following property ownership: Freehold – most common (Residential dwellings) Sectional title (Multi unit dwellings) Leasehold Share block Extra costs included, are over and above the purchase price: Transfs charges a er duty – government tax. Transfer fees – Conveyancer's fees. Bond registration fees – bank nd legal fees for registering a bond. The above fees are based on a tariff recommended tariff. Normally these fees are approximately 7% of the purchase price.
Except in cases where the seller is registered as a VAT (Value Added Tax) vendor, trading in property, VAT is applicable, included in the final selling price, and payable by the seller. Property may be rented out/leased to others, in which case rental incomes less maintenance costs are taxable. Property may be sold or exposed of, in the normal manner and foreigners are allowed to repatriate these finds back to their own countries without penalty. South Africa is a very beautiful and diverse country spread over a fairly vast area, ranging in different climates, vegetation, rural, urban, coastal, inland, mountainous, flat, busy, quiet aspects …. there is a place for everyone. We hope we can help you find your "little piece of paradise" in our country. Once a decision has been to purchase a property in South Africa, one should adhere to the following guidelines: Check exchange rates of your currency with the South African rand. Consider you affordability and financing options. Decide on "where" you’d like to own property: A Gauteng (Johannesburg) the financial "capital" of South Africa. The beautiful coastline – Kwazulu Natal / Cape Conduct "Some market research" Speak to people you may know, reputable agents, business contracts etc. about your ideas of purchasing. Consider your motivation / reasons of wanting to purchase. Ask as many questions as possible.
Obtain information on South Africa and the various regions – utilize the web, contact the embassy etc. As is worldwide every area has up market, middle and lower market areas. Prices range from relatively "cheap to expensive", certain areas are "more secure/exclusive" etc. Individual properties range from "freestanding" freehold, to high-density sectional title. All properties are subject to monthly council charges or levies. Generally the property market price ranges are: Lower (up to R300 000) Middle (R300 000 to R600 000) Middle/upper (R600 000 – R1000 000) Up market (R1000 000+) In the exclusive areas prices can easily range from R2 500 000 to R10 000 000. In cluster/sectional title complexes – the fewer the number of units the more exclusive. Key factors with pricing include: Locality within an area "views" "curb" appeal Security Activities, schooling etc. The South African public transport system is generally considered to be fairly poor, with individual vehicle ownership being a high priority, road traffic and distances, should be carefully considered. Local business is relatively decentralized to nodes surrounding the entire Johannesburg CBS to access to – and transport are important factors. Once you feel satisfied with your investigations – you can get down to the business of finding a property.
A Sellers guide prepared and packed with information for you the seller. “Helping Homes Find Families and Families Find Homes.”
Setting The Price
The three factors to consider in selling your home are location, condition and price…and they’re all related.
Your home’s location and setting, influences its value. A home inside a quiet subdivision sells for more than the identical home on a busy street. Remote areas typically, sell for less than closed in areas. Views, streams and trees usually enhance value. You obviously have no control over location.
New homes enjoy a marketing edge over re-sale homes because they are shiny and clean. Builders enhance their appeal by offering model homes (clean, bright, decorated in current colours and amenities) for buyers to examine. You have nearly complete control over condition and you can increase value and decrease marketing time by being in the best possible condition.
If IBM stock is trading between 104 and 108, it does no good to insist on 112. Likewise, your home must be priced within the appropriate range. You must actually “sell” your property twice: to a buyer and then to a bank valuator. The buyer is more subjective and compares the amenities you offer to what other sellers in the same price range are offering. The appraiser is more objective and compares age, size and cost-identifiable features in your home against other properties that have sold.
Questions to ask when interviewing an Agent!
a) Are you a CRS Agent (Certified Real Estate Specialist)? b) How long have you been an agent in the area? c) Do you have a marketing plan? d) What is your “listing to selling” days average? e) What is your listing price to selling price ratio? f) How will you communicate with me during the listing period? g) How will my property be advertised? h) What “home selling process” do you follow? i) What do I need to do to assist in getting the property sold? j) How many other homes have you sold over the past 3 months? k) How does my property compare to the other homes on the market? l) How will you report back to me after a show house? m) Do you do virtual tours of the homes you market? n) Do you have a personal brochure?
The following checklist sets a good example – without getting you involved in major renovations or full scale redecorating projects. Since first impressions are formed from the street, the list starts outside your home: The front door greets the prospective client – make sure that it is clean Keep lawns and hedges neatly trimmed, weed flowerbeds. Clean out your garage or carport to show off it’s full size. Clean the outside of the windows. Oil gate hinges and latches, repair fence if necessary. Remove dead limbs and branches from trees – especially from evergreens. Check your veranda lights; are house numbers faded? Touch up outdoor paintwork if necessary. Don’t let anything obstruct the Street’s view of your “For Sale” sign – and keep it shining clean and upright.
Once they enter your home, prospective buyers are most interested in checking items that will help them assess its overall condition. That’s why it’s very important to remember jobs like these: Wash down entry walls or give them a coat of paint. Repair drawer and cupboard doors that stick, squeak or won’t close properly. Free up hard to open windows. Repair leaky taps and any toilet that runs, replace loose tiles. You are going move anyway – so clear out the clutter from every room. Wash kitchen walls, if necessary and shine up sink, knobs etc. Make sure your closets are clear of everything except clothes that are neatly hung or folded.
Here are a few pointers to remember when you know that prospective buyers are going to call: Open curtains to let sunshine fill your home. Try to avoid cooking a meal that might cause a lingering odour (kippers, cabbage, curry, etc.) Put large pets outside. Keep all pets away from prospects. Get the children settled quietly in one room. Leave the prospective buyers alone with the agent.
Don’t let the radio or TV compete with the salesperson’s voice.
Let the salesperson do the talking – and the walking. Unless asked, do not join the tour of the home. Above all, do not discuss price or terms. Give polite answers to direct questions and let your agent negotiate the sale. Finally do not apologize for the appearance of your home.
As a matter of fact if you follow the checklist, you won’t feel it is necessary!
The Agreement Of Sale
Accepting an offer
Accepting an offer to purchase is the first step in a legal contract and should contain very clearly everything you can or intend to do, and exactly what you expect to receive…this is where we can be of assistance. We will ensure the offer accurately reflects your intentions, all details are correct, correctly identified property, mortgage information properly stated.We have a standard offer form, which contains pre-printed standard clauses as well as the inserted information. Once you understand the offer and are certain it states everything you wanted stated…then it can be signed. Once signed you have taken the first step to selling a home, once a contract has been signed it is a binding agreement and subject to the laws governing
When the Agreement is being presented – be specific! Make sure that you understand all clauses and addendums added to the contract. Avoid misunderstandings. If you wish substitutions or/and any unusual extras include them in detail. Being clear and specific at the outset can save time and possible complications later.
Explaining 72-hour clause
A 72-hour clause is added to a deed of sale when there are suspensive conditions these can be: a) 100% bond plus costs – this means that the buyer wishes to include the costs in the purchase price. Bank approval has to be gained first should the bank not approve the costs the client either has to pay cash for the costs or the sale becomes null and void. b) Successful sale of property – the deed of sale is subject to the successful sale of the buyer’s property. c) Should there be a 72-hour clause on an offer that has been accepted by the seller, the seller is entitled to accept other offers on the property. Should any of other offers (that is any offer received after the initial offer) become final (bond approval is received) the previous purchaser (the first offer) is given 72 hours to meet all suspensive conditions
Any other addendums should be given in writing and not done verbally. Addendums can cover a wide range of clauses. The most common addendum being the one that refers to fixtures and fittings or any work or repairs that needs to be done.
What to expect from buyers
Sellers please be patient: Buyers will check that lights work, toilets flush, cupboard doors are aligned, they are not being nosy or rude. There is a voetstoots clause in the deed of sale which means as is. The buyer has the right to check what he is purchasing and to request that certain items be repaired before sale is final, this is not always the case but it can happen. Buyers coming through the property may make up their mind on the first visit as to whether they will make an offer to purchase or not. The old saying “First impressions are normally the most lasting” is very true here. Sometimes a buyer will come back with different family members to view the property.
Help to make the transition an easy and pleasant experience
When listing your house with an agent please make known all defects and what you are prepared to fix and what you are not going to do. If you have plans for an extension or any additions please keep them handy as the purchaser may want to view what you had in mind.
Handy Moving Checklist
Just a reminder of some items that you should take care of before you move out of your house and into you new home. Prepare a list of friends, relatives, companies, etc. with whom you have done business, use “Change of Address” cards supplied and mail to all addresses on your list. (If you need more give us a call.) Arrange with you electrical company to have the meters read on the appropriate date and to turn off your electricity on the date the new owner takes occupation. Advise your Telkom and satellite suppliers regarding the sale arrangements. Cancel preauthorized cheques issued for contracted services. Inform gardening and dry cleaning services, trash pick up, newspaper deliveries and other home services. Arrange servicing of all home appliances for the move. Notify magazine, record / book club, insurance, credit card companies, department store charge accounts, licence bureaus, finance companies, stockbrokers and accountants. Transfer trust or banking accounts, securities; establish new accounts with a letter of introduction. Cancel or transfer social, athletic, civic, religious, business affiliations or memberships. Arrange transfer of medical and dental records, prescriptions and optical records. Collect all items, for cleaning, storage or repair. Fur coats, dry cleaning, laundry, watches, shoes or small appliances, for example. Arrange access to the keys for your new home. Insure safety and care of pets during the move. Obtain a supply of boxes for moving and devise a colour code system for the various room designations. Discard all flammable liquids including gasoline used in gardening and recreational motors.
5 Star Marketing
For Sale Board: An excellent way to get buyers who are driving the area to see if they would like to stay there. Window Display: A large number of our buyers come from people walking past our window display. Property Profile: A profile of your property is put together so if a prospective buyer wants more information on your home it is available for him. Property Portfolio: Your home will be entered onto the COMPUTERIZED PROPERTY PORTFOLIO where buyers can view properties that are for sale in the area in the comfort of their own home. Internet: Within 24 Hrs your home will be advertised on the World Wide Web. Newspaper Adds: Only 5% of our buyers come from Newspaper Advertisements.
Building through a developer
You may have seen advertisements by companies who are building a complete new residential area. The property developers arrange fir the roads, electricity, water and other services and divide the land into building stands. They can offer you a stand and a choice of building plans. Sometimes the developer will agree to change the plans to suit your exact needs. You will also be able to decide what fittings or finishes you like best such as tiles, carpeting, and light fittings. The developer will also offer all the finance you need to buy the stand and build your new home. Before you decide to buy from a property developer check on their previous developments. Are they (developments) attractive and well built? Have the homeowners had any problems with their homes or with the development?
LOOK AROUND AND ASK AROUND BEFORE YOU SIGN ANYTHING
Information Guide to Conveyancing
1. What is conveyancing? Conveyancing describes the legal procedure whereby ownership of immovable property is changed (i.e. ownership is “conveyed” from the existing owner to the purchaser)
2. Conveyancer’s actions on receipt of the deed of sale
1. It is self-explanatory that the Conveyancer in performing his duty will be guided by thecontents of the Agreement concluded between the buyer and the seller as recorded in the Deed of Sale. The Conveyancer is therefore, is compelled to “Bake the Cake” in accordance with the “Recipe” prepared for us in advance!
2. On receipt of the Deed of Sale, the Conveyancer will immediately conduct a Deeds Office Search. This search will reveal the following:
A) The full Deeds Office description of the property being sold
B) The full details of the current registered owner C) The full details of any bonds held over the property D) The full details of any interdicts recorded against the property.
3. Existing Bond on the property 1. The Conveyancer will simultaneously with the above, address a letter to the current bondholder advising the bondholder of the fact that the property has been sold and calling upon the bondholder to forward the Deed to the Conveyancer. He will simultaneously ask the bondholder to advise the Conveyancer of the amount required to pay off the existing bond on the registration of transfer and request the bondholder to instruct his own attorneys to prepare an appropriate Consent to Cancellation of the existing bond. This latter form will be prepared by the bondholder’s attorneys, signed by the bondholder and returned to his attorneys for purpose of subsequent lodgement at the Deeds Office. As most financial institutions are unable to trace the file in which the Title Deed and Bond are retained without an account number, it is important that the particulars if the bond account number be reflected in the information section of the Deed of Sale.
2. The Conveyancing Attorney will in due course receive a response to his letter to the existing bondholder. This letter should have enclosed the Title Deed and would have stated the amount required by the bondholder on cancellation of the bond. Should the purchase price be sufficient the Conveyancing Attorney will address a letter to the attorneys representing the bondholder promising payment of the amount required on date of registration at the Deeds Office.
4. The role of the Municipality The Conveyancer will simultaneously write to the Municipality Authority having jurisdiction over the area in which the property is situated and will request from them the following information / documentation.
1. A valuation certificate in which the Municipal Valuation of the property is stated, thisdocument is required for the purposes of obtaining a Transfer Duty Receipt from the Receiver of Revenue.
2. The amount, which the Municipal Authority requires payment of as a prerequisite to theissuing of a rates clearance certificate – in terms of the law, no transfer of any property may be registered in the Deeds Office unless the relevant Municipal Authority has provided permission. This permission is termed “Rates Clearance.” It is important to note that in obtaining a Rates Clearance, one is compelled (regardless of any arrangements which the seller might otherwise have had with the municipal authority) to pay the full amount of rates payable on the property to the end of the current rates year. Municipal Authorities furthermore demand various other categories of payment in advance e.g. water and service charges. Part of the amount payable to the Municipal Authority will be for the account of the seller and part for the account of the purchaser.
5.Preparation of preliminary documents On receipt of the Deeds Office particulars and subject to all suspensive conditions having been fulfilled, the Conveyancing Attorney will proceed to prepare his “preliminary documentation.” These documents comprises the following: 1. Power of Attorney - in which the seller authorises the Conveyancing Attorney to act on his behalf and to appear at the Deeds Office for purposes of registering the transfer of ownership at the end of the day. This document will have to be signed by the seller personally, or by somebody authorised in terms of a written Power of Attorney to sign such a document on behalf of the seller. It is therefore self-explanatory that if the seller is going to be away during the relevant period the transfer will be delayed unless adequate arrangements are made before his departure. 2. Declarations by the purchaser and seller to the Receiver of Revenue. As you are no doubt aware, transfer duty is payable to the Receiver of Revenue arising from sales of Immovable property. This transfer duty is a percentage of the purchase price. The Receiver of Revenue is therefore quite anxious to ensure that he is fully advised of the actual purchase price and that such purchase price furthermore amounts to a fair and market related price. The declarations that the buyer and seller will therefore have to sign serve to confirm all of the above facts. Should the purchase and the seller therefore have reached some “private agreement” in terms of which the purchase price as stated in the Deed of Sale is not a proper reflection of the actual purchase price then these declarations will serve to frustrate the endeavours of the parties as stated above. 3. Affidavits to be signed by the purchaser and the seller confirming their correct names, identity numbers, marital status and solvency.
Signature and Costs
When these documents are ready the parties will be contacted by the Conveyancing Attorney with a view to arranging an appointment for the signature of the documents. On signature of the documents, the Conveyancing Attorney will ask the purchaser to settle the transfer costs. The account which the Conveyancer will present will comprise four segments being the following: 1. The Conveyancer’s own fee plus Vat thereon. 2. The cost of the valuation certificate (see paragraph 4.2.) 3. The transfer duty. 4. Deeds office fee. It is important that the purchaser settle these costs at least one month before scheduled date of transfer as the Conveyancer is required to pay the transfer duty due to the Receiver of Revenue before one may approach the Deeds Office. The Conveyancer will simultaneously recover from the Purchaser his pro rata share of rates and taxes in order that a Rates Clearance can also be obtained. As soon as these costs have been paid, the Conveyancer will forward his cheque plus supporting documentation to the Receiver of Revenue for the issue of a transfer duty receipt. A cheque will simultaneously be sent to the Municipal Authority for the purposes of the issue of a Rates Clearance Certificate.
7. Purchaser’s Bond In the interim the Conveyancing Attorney will receive notification from Attorneys instructed by the financial institution who will be granting the purchaser a bond advising of their identity and of the nature and extent of their instructions. The Conveyancing Attorney will immediately send to these “bond attorneys” a draft copy of the new title deed of the property. This document is termed the “flysheet.” This document enables the bond attorneys to determine the description of the property which is to be bonded and furthermore to determine the full details of the purchaser. The bond attorneys will then prepare their own documentation and arrange for the purchaser to call at their offices to sign their papers and pay their costs. 8. Final Phase When everybody is ready (i.e. the bond attorney’s documents are signed, the bond cancellation attorneys consent to the cancellation is in their possession and duly signed by the bond holder, the transfer duty receipt and rates clearance have been received,) the Conveyancing Attorney will contact all the other Attorneys involved and arrange a simultaneous “lodgement” at the deeds Office. On the pre- arranged date all the attorneys simultaneously hand their folders of paper into the Deeds Office. These papers are collated by the Deeds Office and allocated to a specific examiner. The Deeds Office examiner inspects all the documents and if found to be in order, approves the documents for registration. This procedure in the Deeds Office takes approximately ten (10) days. If any difficulties are discovered in any of the papers the documents are “rejected.” If the documents are approved for registration, the Conveyancing Attorney after ensuring that all the finances for the transaction have either been paid or alternatively secured will arrange with all the attorneys concerned for actual registration to take place. At the moment of registration ownership passes from the seller to the purchaser and the transaction is complete.
9. How long does it take It is self-explanatory from the above that it is very difficult to estimate precisely how long a transfer should take place from the time that the Conveyancing Attorney receives his instructions. If one is forced to make an estimate, then one can assume that if all the parties involved in the transaction, perform their functions timeously, that the entire transaction could be completed within a period of six to eight weeks from the time of receipt of the initial Deed of Sale. We thank you for making use of our services and should you require any further assistance, we invite you to contact us.
SA TAX SUMMARY
1. Tax year The South African tax year runs from 1 March to 28/29 February.
2. Tax Rates Income is taxed in South Africa in accordance with progressive tax rates, i.e. higher income is taxed at higher rates.
3. Registration requirements for individual income tax All taxpayers who earn income exceeding R60 000 per annum are required to be registered as taxpayers with the South African Revenue Service (“SARS”). This process does not happen automatically on entering the country. Individuals who earn in excess of R10 000 in investment income are required to register as provisional taxpayers. In addition to these stipulated instances, SARS reserves the right to classify any taxpayer as a provisional taxpayer.
4. Tax returns and payment of taxes Tax returns are prepared annually and are typically due in the middle of July. Provisional taxpayers may be required to submit up to three provisional tax returns during the course of the year (August and February with an optional third return being due at the end of September). In most instances employees’ tax (commonly referred to as PAYE) is withheld from earnings by employers on a monthly basis. An assessment will be issued by SARS to each taxpayer who submitted a tax return. This serves as proof of taxes paid.
5. Basis of taxation The South African tax system is residence based. South African tax residents are subject to tax in South Africa on their worldwide income while non-residents are liable to tax in South Africa only in respect of income from South African sources. Tax residence Tax residence is established either through being considered ordinarily resident in South Africa or through physical presence in South Africa over a period of six tax years. Although “ordinarily resident” is not defined in the Act, it is held to be the country that you consider to be your real home, the country you will return to at the end of your “wanderings”. An individual will trigger tax residence through physical presence during the sixth tax year of being physically present in South Africa if such individual was present in South Africa for more than 91 days during the current year of assessment and each of the 5 preceding years of assessment and present for a period exceeding 915 days in aggregate during the previous 5 years of assessment.
For ordinarily resident taxpayers, tax residence can be broken through a change in intention as substantiated by facts, typically on emigration from South Africa or at such time that an individual decides that he/she no loner considers South Africa to be his/her real home. Individuals who established tax residence through physical presence will break tax residence through physical absence for a continuous period of 330 full days. 6. Capital Gains Tax Tax residents are subject to Capital Gains Tax (“CGT”) in South Africa on the disposal of their worldwide assets. Non-residents are subject to CGT in South Africa only on the disposal of fixed property, held directly or indirectly, located in South Africa. On breaking tax residence, CGT will be payable on the deemed disposal of a tax resident’s worldwide assets (excluding South African fixed property), i.e. the growth in value from the date of establishing tax residence to the date of breaking tax residence will be regarded as a “capital gain” and CGT will be payable. Rate of CGT 25% of the gain is included in the individual’s taxable income and taxed at the applicable marginal tax rate. An annual exclusion of R16 000 is currently applicable to the aggregate gain or loss in any particular year. 7. SA tax on earnings for services rendered in and outside SA As indicated above, non-resident for South Africa tax purposes are taxable in South Africa on income from a South African source or deemed to be from a South African source. In terms of the principles laid down by the courts, any income earned in exchange for services rendered in South Africa, will be taxable in South Africa as the source is in South Africa. Concerning other services that would be rendered outside South Africa, one needs to look at where the wits, skills and labour of the person providing the services are exercised. Should the wits, skills and labour be exercised in South Africa, the source of the income earned would be in South Africa. 8. Fringe benefit tax Rental paid by your employer The provision of housing to an employee is generally considered to be a taxable fringe benefit, subject to certain conditions. In terms of the Act, the value of the benefit is the greater of the benefit determined in accordance with a remuneration based formula (generally applied where the use of a company owned house is provided), and the total amount of the rentals payable for such accommodation by the employer, or associated institution in relation to the employer, and any other expenditure defrayed by the employer in respect of such accommodation. Where a cash housing allowance is granted to an employee, such allowance will be taxable as cash remuneration. In the case of employer-provided accommodation, relief may be available in terms of Paragraph 9(7) of the Seventh Schedule in terms of which no taxable value shall be placed on any employer-provided accommodation while an employee is absent from his usual place of residence for the purposes of performing the duties of his employment. The length of time for which the benefit may continue to be provided tax-free is limited to two years. The interpretation of sub-paragraph has been a contentious issue as the Act does not specifically define the phrase “away from his usual place of residence”.
It is however important that each individual expatriate employee’s particular circumstances be evaluated in order to determine whether Paragraph 9(7) of the Seventh Schedule can be applied. Use of motor vehicle provided by your employer Generally, when an employee is granted the use of company vehicle, that vehicle is essentially for the exclusive use of the employee and is used for both personal and business purposes. The provision of a company motor vehicle constitutes a taxable benefit in the hands of the employee, which is taxed at a rate of 2.5% of the determined value of the vehicle (excluding VAT) per month. Where an employee is granted the use of a second vehicle, the monthly taxable benefit is calculated at a rate of 4% of the determined value of the vehicle with the lower value, and 2.5% is applied to the determined value of the vehicle with the higher value. The determined value is the original cost of the vehicle to the employer if this was obtained under a bona fide agreement of sale. Where the vehicle is held by the employer under a lease, the determined value of the vehicle is the retail market value of the vehicle at the time the employer first obtained the right of use of the vehicle. In any other case, the determined value of the vehicle is the market value of such vehicle at the time that the employer first obtained the vehicle or the right of use thereof. Medical contributions paid on behalf of your employer In terms of paragraph 12A(c) of the Seventh Schedule, the cash equivalent of the value of the taxable benefit made to the employer during the year of assessment indirectly of directly, to a medical aid scheme registered under the Medical Schemes Act no 131 of 1998, for the benefit of an employee or his dependents that exceeds R 1140 in respect of the employee and one dependent plus R 345 for every additional dependant. Please note that medical insurance as per South African legislation does not qualify as a potential tax deduction from ones taxable income. Only medical aid schemes as defined by our legislation may be eligible as a deduction. Medical contributions made as well as expenses both in and out of South Africa not recovered by you from your medical scheme will be deductible from your taxable income, to the extent that they exceed 7.5 percent of your taxable income in South African. Pension fund and retirement annuity contributions If you contribute to a local pension or retirement annuity fund while in SA, you will be able to deduct the prescribed amount from your SA salary. For a pension fund, and amount of 7.5% can be deducted from your pensionable salary, and for a retirement annuity fund, and the greater of 15% or R 3 500 can be deducted from your nonpensionable salary. No deductions can be claimed in South African for any contributions made to foreign funds. However, where the employer is liable to contribute to the foreign fund, the contribution by the employer would not attract tax in SA.
9. Death of an employee while working in South Africa Upon death of a non-resident in SA an estate duty amounting to 20% will be payable on any immovable property held in South Africa at the time of death. There are various lump sums and implications that also need to be addressed if you were to contribute to a South African pension or retirement-annuity fund while you were in South Africa. Different treatments will arise depending on what type of policy it held.
10. Social Security SA does not currently have a social security system in place. SA individuals generally opt to take out private policies with regards to any pension, retirement annuity or provident fund scheme, or their current employer supplies one to them. Each is treated differently for tax purposes. SA is in the process of implementing a Social Security system but this is likely only to be implemented in the next few years.
11. Exchange control restrictions Individuals considered resident for exchange control purposes are restricted in the amount of funds they are allowed to invest offshore. It should be noted that the concept of 'resident' as used for exchange control purposes differs from the concept of 'resident'for tax and immigration purposes.
12. Immigration considerations Subject to the Immigration Amendment Act 2004, no person shall enter or depart from the Republic at a place other then a port of entry and such person shall be in possession of a valid entry permit or visa. A visitor’s permit does not entitle a person to work in South Africa. However, under certain limited circumstances, as set out in Section 11(2) of the Immigration Amendment Act 2004, a person in possession of a valid visitor’s permit may work in South Africa for a period not exceeding three months. Work permits may be applied for either from abroad or from within South Africa, providing that the foreigner is in South Africa at the time of application and provided that the application is lodged with Home Affairs at least 30 days before the existing permit is due to expire. When applying from abroad, the individual must remain abroad until the permit is issued. Similarly, in order to apply from South Africa, the individual must be present in South Africa when submitting the application for a work permit. Family members accompanying the work permit applicant will also be required to apply for the relevant temporary residence permits. Again, these applications may be lodged either in South Africa or abroad and application may be made as a family unit. The information contained in the above article is based on current South African legislation as at 10 April 2008 and has kindly been provided by Mariette Cruywagen at Cliffe Dekker Inc. The information should be used for general guidance only and is not a substitute for professional service when considering the tax effect of specific instances. Cliffe Dekker accepts no responsibility for any actions taken or not taken on the basis of the information provided herein. The information is issued in accordance with the provisions of the Income Tax Act no 58 of 1962 ("the Act") and based on our interpretation of current tax law and is limited to fiscal considerations only. Tax law is, of course, subject to change by future legislative amendments and court decisions. Cliffe Dekker Inc accepts no liability for any legislative amendments in future that may influence the correctness of the summary. You are cautioned to keep abreast of such developments and are welcome to consult us for this purpose.
Individuals needing further information regarding tax implications are welcome to contact
Cliffe Dekker at +2721481 6328