When your client sells or purchases a property, the most important document in the sale transaction is the deed of sale. It legally binds the seller and purchaser to the agreement.
Regarding section 2 of the Alienation of Land Act 68 of 1981 (“ALA”), no alienation of land will be of any force or effect unless it is contained in a deed of alienation and signed by both the seller and purchaser or by their agents acting under written authority. A deed of sale must be in writing to be legally binding. Although the said Act refers to a “deed of alienation”, the terms offer to purchase, deed of sale, sale agreement or agreement of sale are commonly used by clients and in practice.
At the very least, the deed of sale needs to contain a description of the parties to the contract, the property that is being sold and the purchase price agreed upon. The said parties then need to sign on the dotted line, or it should be signed by their agents, acting on their written authority.
Let us look at two particulars that can render a deed of sale null and void ab initio (from the beginning), namely:
1. Description of the parties
2. Electronic signatures
Description of the parties
The description of the sellers in a deed of sale is imperative. The marital status of the parties should be considered, as well as how many owners there are on the title deed of the property that is being transferred.
1. When the seller is an unmarried individual and they are the only owner on the title deed:
John Doe
Identity number ____________
Unmarried
2. When the seller is married out of community of property and the property is only registered in one of the spouse’s names:
John Doe
Identity number ______________
Married out community of property
3. When the sellers are married out of community of property and the property is registered in the names of both spouses:
John Doe
Identity number ______________
Married out of community of property
And
Jane Doe
Identity number ______________
Married out of community of property
4. When the seller is married in community of property, whether both spouses are on the title deed or not:
John Doe
Identity number ______________
and
Jane Doe
Identity number ______________
Married in community of property to each other
Both the spouses must sign the deed of sale and alienate the property of the joint estate. Alternatively, one spouse may sign the deed of sale subject to the written consent of the other spouse. Section 15(1) and 15(2)(a) and (b) of the Matrimonial Property Act 88 of 1984 reads as follows:
“(1) Subject to the provisions of subsections (2), (3) and (7), a spouse in a marriage in community of property may perform any juristic act concerning the joint estate without the consent of the other spouse.
(2) Such a spouse shall not, without the written consent of the other spouse –
(a) alienate, mortgage, burden with a servitude or confer any other real right in any immovable property forming part of the joint estate.
(b) Enter into any contract for the alienation, mortgaging, burdening with a servitude or conferring of any other real right in immovable property forming part of the joint estate.”
5. When the seller is an unmarried individual or married out of community of property, as well as the only owner on the title deed, but has now passed away:
Estate of late John Doe, Estate Number 123/2025
Herein represented by Jane Doe in her capacity as executrix in the estate late John Doe, Estate number 123/2025 duly authorised thereto by the Master of the High Court____________ on _____________
The estate agents do not have to cite the deceased estate perfectly correctly, but it is important to note in the deed of sale that the owner has passed away and that the executor or executrix is signing the deed of sale on behalf of the deceased estate. The heirs cannot sign the deed of sale on behalf of the deceased because they cannot alienate rights that they do not own.
6. When the sellers are married in community of property and one of the spouses has passed away:
Estate of late John Doe, Estate Number 123/2025
Herein represented by Jane Doe in her capacity as executrix in the estate late John Doe, Estate number 123/2025 duly authorised thereto by the Master of the High Court____________ on _____________
And
Jane Doe
Identity Number ____________
Unmarried
In this example, it is important to note that not only the surviving spouse can sign the deed of sale. Both the surviving spouse and the executor of the estate must sign the deed of sale. In certain instances, the surviving spouse is also appointed as the executor. In this case, the surviving spouse will sign the deed of sale twice- in their personal capacity and on behalf of the deceased estate.
7. When the seller is an entity such as a Trust, Company or Close Corporation, the Trustee, Director or Member duly authorised in terms of a resolution to represent the said entities, must sign the deed of sale. If there is no resolution in place on the date of signing the deed of sale, all the Trustees, Directors and Members of the said entities must sign the deed of sale in order for the sale of the relevant property to be valid and legally binding.
Electronic signatures
As stated above, one of the requirements of a legally binding deed of sale in terms of the Alienation of Land Act is that the deed of sale needs to be signed by the parties to the agreement. The question is, can the deed of sale be signed electronically, as many other documents are done in our fast-paced society?
In South Africa, electronic signatures are governed by the Electronic Communications and Transactions Act 25 of 2002 (“ECTA”). ECTA defines an electronic signature as data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature.
ECTA lists the laws where an electronic signature is not sufficient as follows :
1. Alienation of Land Act 68 of 1981: An agreement for alienation of immovable property.
2. Wills Act 7 of 1953: The execution of a will or codicil.
3. Bills of Exchange Act 34 of 1964: The execution of a bill of exchange
ECTA clearly states that an agreement for the alienation of immovable property cannot be signed with an electronic signature. Therefore, for a deed of sale to be legally binding, the contract must be signed in “wet ink” .
If there is any uncertainty regarding certain details in the deed of sale, do not hesitate to contact your trusted conveyancer to peruse the deed of sale before presenting it to your clients for signature.
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