Investing in the South African property market can be an exciting opportunity for foreign investors. However, understanding the legal framework surrounding property sales is crucial to ensure a smooth and successful transaction. 

In South Africa, the legal system is primarily based on Roman-Dutch law, a legal system with European origins. In this article, we will explore the key aspects of Roman-Dutch law, highlighting its differences from English law, and how they impact the process of selling property, providing valuable insights for foreign investors.

Roman-Dutch Law: The Pillar of South African Property Law 

South Africa's legal system is deeply rooted in Roman-Dutch law, a legal system that originated in Europe and was codified by the Romans. The legal principles were spread across Europe during the Roman times. During the Dutch colonial period, “Roman-Dutch” law as it is referred to these days, was introduced to South Africa and has since influenced the country's legal landscape. 

This legal framework combines Roman-Dutch law principles with local customs and has shaped various aspects of South African law, including property transactions. In South Africa, when engaging in property transactions, it is mandatory to use a conveyancing attorney, who specialises in South African property law, to ensure compliance with the legal requirements.

English Law: Common Law Influences 

While Roman-Dutch law is the predominant legal system in South Africa, it is worth noting that certain aspects of English law, derived from English common law with its origins in the Nordic countries, have influenced the country's legal landscape, particularly in commercial and contractual matters. These influences provide a degree of familiarity for foreign investors from common law jurisdictions.

Differences and Impact on Selling Property: 

Transfer of Ownership: 

Under Roman-Dutch law, the transfer of ownership concludes the process of change of ownership which is a formal process and is typically achieved through a process called "conveyancing." This process involves the seller (through his appointed conveyancer) providing a valid title deed, which is registered in the name of the purchaser with the Deeds Office. 

Registering the transfer ensures legal certainty and protection of property rights. In contrast, English law places greater emphasis on the concept of "title by possession," where ownership is established through occupation and the intention to possess. The onus is then on the new owner to register the title in his/her name with the Land Registry.

In South Africa, the assistance of a conveyancing attorney is required for the registration of any property transaction i.e full title, sectional title and any bond registration, to ensure compliance with the legal requirements.

Seller's Obligations: 

In South Africa, sellers have specific legal obligations when selling property which were derived from Roman Dutch Law, precedents (previously decided court cases) and various laws which have developed within the property sector. They are required to disclose any known defects or issues that may affect the property's value or desirability to potential buyers. Failure to disclose material defects could render the sale voidable. 

In contrast, under Anglican law, sellers have a lesser duty to disclose, and the principle of "caveat emptor" or "buyer beware" applies. Buyers are responsible for conducting their own due diligence and should engage professionals to ensure a thorough inspection of the property.

Formal Contracts: 

The Alienation of Land Act forms the basis of all property transactions in South Africa and requires formal contracts in property transactions. 

The basic requirement in terms of Section 2 of the Act is that the Deed of Sale is in writing, and that it is signed by both the Seller and the Purchaser. It is advised that the Agreement contains specific details, including the purchase price, conditions, and terms of the sale as well as all suspensive conditions in very clear language. 

The contract serves as a legally binding document, providing clarity and limiting the potential for disputes. While English law allows for greater flexibility in verbal or implied contracts, written contracts are still recommended to ensure clarity and avoid potential disputes. 

When engaging in property transactions in South Africa, it is important to involve a conveyancing attorney who can assist in drafting and reviewing the necessary legal documents.

Conclusion: 

Understanding the legal principles of Roman-Dutch law and its distinctions from Anglican law is essential for foreign investors looking to buy or sell property in South Africa. As the foundation of the South African legal system, Roman-Dutch law governs property transactions and provides a framework for ensuring legal certainty and protection of property rights. While Anglican law influences certain aspects, it is important to focus primarily on the principles of Roman-Dutch law when engaging in property sales or purchases.

Foreign investors should seek the guidance of experienced conveyancing attorneys who specialise in South African property law. These legal professionals can provide personalised advice and assistance, ensuring compliance with the legal requirements and a successful property transaction. Remember, when engaging in property transactions in South Africa, the use of a conveyancing attorney is mandatory to ensure compliance with the legal requirements and to protect your interests.

When buying a property in South Africa, the “prevention is better than cure” principle cannot be more applicable. 

Disclaimer: This article provides general information and should not be construed as legal advice. For personalised advice and assistance with your specific situation, please consult a qualified conveyancing attorney familiar with South African property law.