Transfer Duty Act 1902 (No. 8 of 1902)

REVE:-<UE: ,\CT 8,.' 1902 TilE TRANSFER DUTY ACT Dille of consmcncctnrnt : 51h Fcbruary, f90,' . •·1 i 'l"(m!Jt'lI '('II I 0/ Sections 1. Short title. 1. Interpretation, J. Levy ot duty, 4. Valuation for payment of trunsfcr duty. (Schedule) 5, Any additional consideration passing to be taken into account in ascertai l1Iug \ alue of property. 6, CU,l, uuu <.:Ilal ::;l:~ [IV' fUl [Iljll~ pan ur valuation UII wllidl dury is payable, 7, When duty is payable, 8 When payable in cases of deferred possession. '), Whell duty payable ill cases of conditional sale. etc. 10, Lia bil it y to duty ill cases uf jui'j[ ow ucr sltip. 11, Remission of duty. 12, Retu rn of d u ty if sal e, etc., decl ared void. 13, Exemptions from obligation to pay duty. (Schedule) j 4, KCllli"ivll uf <JUly w iieu 1Iuusuciion cauccllcd. (Sclieuule) 15, Partial rem ission when t ransuc tio n canee lied a [ter POl rt co nside ra tion pai d. 16, Enquiry by registraticn officer when exemption sought. 17, Hearing by High Court of dispute between registration officer and claimant for exernpt ion , 18. Power of registration officer to refer claims for exemption to the Accountant-General. 19. To whom duty payable, 20. Solemn declaration of sale, etc. (Schedule) 21. Solemn declaration by agent or broker. 22. Solemn declaration in case of death, etc., of one of the parties. 23. Person bidding as agent to disclose name of principal. 24. Proceedings' where bidder refuses to disclose name of principal, 25. Pro""eding where principal repudiates purchase. 26. Provisions to apply to private sale and to leases, etc., by agent. 27. Auctioneer, broker, etc., forbidden to sell, etc., to undisclosed principal, "28. Payment of duty when sale or lease taken over by agent. (Schedule) 29. Private sates and leases to undisclosed principals declared null and void. 30. Lease of land for ten years and more to be notarial. 31. Contract of sale to be in writing. 32. Resale when vendor unable to enforce contract of purchase. 33. Penalties. 34. Recovery of dut y 35. Forms of declaration. (Schedule) 36. Duty payable on transaction as a whole. 37. Notice of legal proceedings. Schedule. ~jAIUJl;.~ Uc ~WALILA!,>l) All A CI 10 p,-vl"ide [UI" the pa)"/III'III of trunsfer dUly 0/1 the sale and ahenution 01 Ii.H'd property and of leases of iixed propcrtv. Short Iii!". 1. This Act may be cited as the Tr-ansfer Duty Act, 1902. Interpretation . sS.J-J ., In this Act unless the context 01 herwise req uires "fixed property" includes (0) land or the usufruct thereof or any ct her limited interest therein other than a lease; (b) rnynpachts, claims and stands; (c) any rights to minerals or precious ~t"n,.~ on "ny [and ; (d) any right held under any concession or grant under Part II of the Concessions Act No.3 of 1904; Provided that no transfer, lease, hypothecation or any other incurnberance of any such right shall be registered unless a receipt be produced showing that all rents and other moneys payable under such concession or grant in respect of such right have been paid; "lease" includes "sub-lease"; "rcgislrD.liol1 aflicc" includes allY pullli,- UmLl: ,\II~l"!:: uue {(1 f!:.;cd propertv is registered according to law: ,.sale" j 11\:: Iucit) .. cess i0 11"": "1 ransfer duty" mCJI1S the duty payable in terms of section 3, Le\'y ofdutv, 3, Save as in this Act excepted, a duty of three per cent all the first ten thousand rand, and lour per cent 011 any amount above ten thousand rand. of the value of any fixed property and of the value of any lease-as is hereinafter described sl1:\.11 be payable and paid by the person (a) acquiriug or becoming entitled to any such property or lease by way of IJUl L!JiJ~t', Ll:~~jUlJ, t'.\L1Jd.lJ:';t', uonauon or in any mariner orberwrse than by way of legacy testamentary or other inheritance; (11) entering into a lease of any fixed property (other than of a mynpacht, claim or right to minerals or precious stones) where the lease is for not less than twenty-five years Or for th" term of the natural life of any person mentioned therein or is renewable from time to time at tile will of the lessee indefinitely or for periods which together with the first period of the lease amount in all to not less than twenty-five years; (c) entering into a lease of any mynpacht, claim or rieht to minerals or nrecious stones for any period. (Amended P.2/196:!.) 2 REVENUE: ACT 8/1902 sS.'1 Vall/alioll for payment 0/ transfer duty, (Sclredllll!) 4. For the purpose of ascertaining tile value of fixed property or a lease thereof charge abte with transfer duty (a) in the case of a sale Of purchase of such property or lease the full and true consideration shall be set forth by the seller and purchaser respectively in the Forms A and B of the Schedule and transfer duty shall be charged on the arrio unt 0 f s uch consideration; (b) in the case of such property or lease changing proprietors otherwise than through the medium or by means of purchase and sale it shall be the duty of the revenue officer authorised to receive transfer duty in respect of such property or lease to require the parties concerned to set forth the value of such property or lease in as nearly as possible tile Forms E, F and G of the Schedule; (r) in the case of a person entering into a lease of fixed property mentioned in section 3(2) transfer duty shall be paid on the full value of the property leased and such value ,hall be declared LU by the lessor and lessee respecdvety ; (d) in tbe case of a person entering into a lease of any mynpacbt, claim or right to minerals Or precious stones the total amount of rent for the whole period for which the lease has been entered into including the periods for which th .. lesse ... hn e rh .. ri'Jht of renewo l (if "ny) "nd in addirion any other con sideration which may be given for such lease shall be deemed and tilken 10 be the value on which transfer duty shall be paid in respect thereof and such rent or other consideration (if any) shall be fully set out by the lessor and lessee in Forms C and D of the Schedule: Provided. that if any such lease IS tor a period exceeding twenty-live years or is renewable at the will of the lessee from time to time for periods which together with the first period thereof exceeds twenty-five years in all or indefini teiy such lease shall for the purposes of estimating the amount of transfer duty thereon be deemed to be a lease for twenty-five years reckoned (rom the date thereof at a rent equal to the average rent payable during the whole period thereof and if such lease lapses or expires by non-renewal within a period of twenty-five years from the date thereof the lessee shall upon such lapse or expiry be entitled to claim from the Accountant-General the difference between the amount of transfer duty paid in respect of such lease and the amount which would have been payable if the period of the same had been the period for which it was actually in force: Provided further that such claim shall be made within SIX months after such lapse or expiry and there be transmitted with such claim a copy attested by the registration officer or the registered entry or document relanve to such lapse or expiry; (e) if the purchase price or other consideration for any such property or lease consists of or includes shares or other securities of a company proposed to be formed but not yet existing the value of such JJ11lrCJ 01- securities s hall [VI the purposes of transfer duty be their nominal value and in the case of shares or securities of a company already formed tJ1C value thereof shall for purposes of transfer duty be the market quotation price On the date of the purchase if that is ascertainable by the Accountant-General; 3 l).Tll..TllTr.~ ()a:- ~WA71!.A.,..,,;n ssA-6 (f) except in the case of a bona fide purchase and sale, if a revenue officer authorised to receive transfer duty is satisfied that any consideration or value so declared is considcra bly Jess than what is just and fair he shall assess the amount on which it c.ppeurs to him t ha t transfer dUI)' should be paid and if the person chargeable with the duty refuses to accept such assessment the amount on which transfer duty shall be paid shall be submitted to and decided by arbitration ill manner provided by the Arbitration Act, No. 14 of 1904, (g) pending any submission to arbitration under paragraph (f)the person charge, able with transfer duty may pay the amount assessed by the revenue officer under protest who shall give a receipt for such payment and such receipt shall be an authority to any registration officer to pass transfer of the property o r I""~,, ill r"~I',.'1 of which Ir;ln~f"r d ut y i, naya ble. Any additional consideration passing to be taken into account ill ascertaining value ofproperty, 5. If in any case some additional valuable consideration is uiven or promised or agreed to be given by the party to any sale or exchange or lease who is chargeable with the payment of transfer duty to the other party to the contract, or to any third person for or in respect of or in connection with such sale, exchange Or lease, such additional consideration, if in money, shall be taken into account in estimating the amount on which transfer duty is to be paid, and if such additional consideration be other than mOD/;'Y, t h .. said p"rry m"y hy way of solemn declaration put a value in money upon such additional consideration, and such value shall be taken into account in estimating the amount on which transfer duty is to be paid: Provided that section 4(u) (b) and (g) shall apply to the value so put if it appears 10 the revenue officer to be considerably less than the just and fair value of such additional consideration, or if the said party has not put <1 value thereon. Costs aud charres 1101 form illg pari of vaiuation 011 whicli duty is payable. 6. For the purpose of the payment of transfer duty the following shall not be deemed (0 form part of the consideration given in respect of the acquisition of any fixed property 01· lease (u) t hc cost of any aurvcy of the property rnn dc prio r to unci for the p ur'poaes of the said -acquisition and of any survey of such property which 'may be made thereafter, and the cost of all diagrams and sub-divisions, 01" the plan of the property exhibited at the time of the acquisition; (61 the charge made b." all auctioneer for conditions of sale; (c) the commission (if any) paid by the person acquiring the properly or lease to any auctioneer, broker, or agent by or through whom the transaction has been effected, not exceeding five rand per centum upon the amount of the consideration; Cd) the auction duty payable upon any sale; (e) the transfer duty payable thereon; U1 the cost of all deeds necessary for effecting transfer of such property or lease, and of the mortE'ag.. deed (if any), and of a Il necessary s tarrrps ; 4 REVE:-iUE: ACT 8/1902 ss.6-12 (g) the charges of conveyancers and agents incurred in effecting the transfer of the said property or Jeasc: (Ii) the rent Ul ru., I iC ;UlY} [J",y'lLJI~ lu tl:~ Goverruneut (I pun tL<; lJiUlJelly. HhclI dUly i.1 [Ja,ltlhle. " The trunsfer duty upon or in respect of every sale, lease, exchange or donation shall be payable \lithin six months from the date of such sale, lease, exchange, or donation as the case may be, and [ronl and after the expiry of the six months and until payment or deposit of the amount of such duty, interest thereon at the rate of twelve rand per centum per annum shall be payable and shall be recoverable as pan of the duty. J1,'11"11 pori/hie ill Cd.l'{'.I' of ,h)i'll"<'t! possession. S. If a contract or sale, 1<::1s<:, e.'Ch'-lll~e or uonation is entered into, by which it is stipulated thut possession of such property shall no t be given, or rhut the said sale, lease. C:Xdh.l.ll';'; or clc-nut i ori ihall Olot t a ke, e.rfcci until 30l1W tururc Jute, the Jute at which the contract II<.1S entered into, and not such future date, shall be the date from which the period of six months mentioned in section 7 shall be reckoned. 9. If a sale. lease. exchange or donation of rixed property is conditional. the period of six months mentioned in section 7 shull be reckoned from the day on which the contract became binding: upon tile parties thereto: p roy ided thu t if slll:h co nt me t is rI;~<I)I v",i by r..~ son n f [he ha r pc nin£ or any rcsoIutive condition after the payment of transfer duty, then upon proof given of such dissolution such duty shall be returned. Liability to duty ill cases ofjoint ownership. 10. If any fixed property or lease is registered in tile name of more persons than one as joint owners, all such persons shall be deemed for the purposes of the payment of duty upon or in respect of any sale, a lienation, or lease, by any of them to any other or others of them, to have equal shares and interest in the said property or lease, unless the particular share or interest is set out in the title deed or other instrument recorded in the deeds or other regist ra t ion office, Remission o( dutv, \ I. No transfer uuty 5\w.Jl be I'el'\'~tt'l:d ~\?OU ;;I.\Y transacuon on which duty is \lo.yal)Le. under this Act, except as herein provided and except upon transactions with regard to which the transfer duty, if paid directly from Government revenue. (Consolidated with P,12/1962.) Return of duty If sate, CIC., aectare« voui. 12. If a contract of sale, lease, exchange, or donation, upon which transfer duty is payable is set aside, or cancelled, or declared or made void by the judgment of any competent court, the transfer duty upon such sale, lease, exchange, or donation, if unpaid shall not be pClC"ablo:, and if pr;id ~hull be rcrurned. 5 S5./3 Exemptions from obligation to pav duiy. (Sc!ll'dltfc) 13. (I) Exemptions from transfer duty shall be allowed in the cases <ll1d to the extent provided for in this section. (2) Transfer duty shall not be payable by the Ngwenyama in respect of the disposal of property held, or the acquisition of property to be held in trust by him for the Swazi nation. (Consolidated with A.18i67.) (3) If any person who is or appears upon the records of the deeds or other registration office to be a joint owner of any fixed property or lease, purchases or acquires that property, or lease, or any porI ion thereof, he shall not be charged vijth transfer duty upon Chat pro portion of the value of such property at" lease which represents his individual share or interest. (4) Upon a voluntary or compulsory partition between join t owners of fixed property, or any lease, all changes in the records of the deeds or other registration office required for the due registration of the separate shares to be held by each severally, shall be made without payment of transfer duty, if the person claiming exemptiou from sucb payment makes a solemn declaration in the Form H in the Schpcl II 1", that h.. has not given, nor is to give any money or other valuable consideration to his late co-proprietors or any of them for or in regard to the share assigned to him, and which he desires to have registered in his name and deposi ts it with the officer authorised to receive t ransfer duty, or with the registration officer: Provided that if for the equalising of partition, or for any other reason, such person gives. lJI agreed 10 give lC1 11jS rare co-proprietors or any of them any money or other vslueblc consideration for the share so assigned to him, he shall by solemn declaration as aforesaid state the amount or value given or to be given by him and transfer duty shall be payable upon such value or amount: Provided further that Section 4(tl) (h) <lnd (g) sh,tll apply to th .. ~"'(\unl or value so stated if it appears 10 the revenue officer who is to receive the transfer duty that such amount or ~·alue is considcr:1.bly less tl1ilfl the just and f:iir difference in value of the separate shares. (5) The preceding sub-sections shal! apply mutatis mutandis to a division of fixed property, or lease between spouses married in community, whether such division arises in consequence of the death of one of the spouses, of divorce, or of an order of court. (6) The husband of a woman to whom he is rnarrred in community of property may have any property or lease standing in the deeds 01' other registration office in her name removed into his own name without tile payment of transfer duty. (7) If the trustee of an insolvent estate, in the exercise of the powers conferred on-him by law as such, refuses to fulfil any contract for the sale, lease, exchange or donation of fixed property belonging to the estate made by the insolvent before sequestration, no transfer duty upon such sale, lease, exchange or dona/ion snaJi be payable. and such duty if paid before the scqucstratiou shall Lot: rcrurued ; allu if Chelt; j~ subsequent sale, lease or exchange of such property by the trustee of the insolvent estate, the declaration of the said trustee may be altered so as to set forth the fact of the previous sale, lease, exchange or donation, and his repudiation thereof. (8) If l),e 'H1SI,,<-", of n" insolvent e.tat", elect s to abarid on an agreernerit which has been entered into by the insolvent for the purchase. lease or exchange of any fixed property, no transfer duty shall be payable upon such sale, lease or exchange: Provided that such duty, if it has been paid by the insolvent shall not be returned; and Provided further that the solemn declaration to he marie in r-ase of ~ riy ,e.ronn nr subsequent sale, lease or exchange shall be in the lorm marked "J" in the Schedule, 6 REVE:-IUE: ACT 8/190~ ss"13~ (9) If an insolvent by agreement with his creditors is permitted to re.tain or take over any of the fixed property or any lease which belonged to him at the date of the order for ~cquc~lraljon and aril l rcrrui in in g .unrc;;i3lcrcd in hio name, no t,:1n~fer dUll' ~h:>J1 be payable upon such transaction. (10) The Minister may, upon proof made to his satisfaction thut a person acting bona JlrI~ has made a mistake in regard to the enrcgistcrrnent of any transfer, permit such transfers :1" may he necessary for the correction in the deeds or other registration office of the mistake, to be passed free of transfer duty. (ll) ] f any person who, having become surety for the payment by the purchaser of the purchase money of a property or lease, has paid the purchase money, and by reason of insolvency, absence from Swaziland or Other cause, such surety is unable to recover the money so paid, and is II illing or desirous of raking transfer of tile property or lease into his own name, the M mister .nuy, if he sees fit, upon proof by solemn declaration of the facts, authorise lhe pussin g 0 f Ira ns rer 0 f the property o r lease direc t from the vendo r to sue h su rety upon payment of single duty, whether paid by rhe purchaser or by tile surety, as if the sale had been made lib initio to such su rery : Provided that this subsection shall not affect the respective rights and remedies of the vendor and purchaser in regard to the first or original sale. (12) If a person appears in the records of the deeds or other registration office to be merely :;J. rrustce for :111)" orhcr p--rsori, II,,/;, pr0l"','ry ~n 1",lli in trust may be removed from the name of the trustee to that of some other trustee or that of such other person entitled to have It so removed, without the payment of transfer duty. \I J) The 1\1 in ister may allow cxernp tion from trans fer du ty upon sworn dcclaratio n being made, or other satisfac tory proof b/;'in'J 3iv~n, rhat fi",,<1 property i" (a) transferred by way of gift for public, municipal, religious or charitable uses excIusively; (h) acquired by or on behalf of and solely for the use and purposes of a public hospital or public benevolent inatitution which i~ carried on exclusively for benevolent purposes and not for profit or gain to any person concerned or connected therewith" (14) If an exchange of portion of adjoining properties held under claim licence, rnynpaclu Ul urhei lllilliilg title i3 made, and in addition to the prescribed dcclaratjons a certificate signed by or on behalf of the mining commissioner is produced, stating that it has been shown to his satisfaction that such exchange is made solely and bona fide for mining purposes, and is necessary or instrumental to the proper or more economic working of the minerals, no duty shall be chargeable, except in respect of ~1l1Y consideration passing in connection WIth such exchange: Provided that ((/) the certificate of the mining commissioner shall not be given except where the properties concerned art> actually being worked or about to be worked lor rrunerals ; (/)) the portion of property given or taken in exchange shall not exceed an area equal 10 ten claims respectively in extent; and (c) where the property to be exchanged exceeds the area mentioned, duty shall be paid ill I ~~IJ<:l.t u f lll\; C,\';;C~:; arc". 7 STATlJTES OF sWAZlLAl'D ss.13-17 (l5) If in the administration of the estate of a deceased person a redistribution of the fixed property takes place amongst the children or descendants of the deceased. or between such children or descendants and the surviving spouse, transfer duty shall be payable in respect of ouch redistribution only on the value or any fixed property belonging to the esta t" taken over by any of the persons aforesaid in excess of the share or portion of the fixed property to which any such person was entitled ab intestato or by testamentary inheritance. or by virtue of a right of community of property. Remission of duty when transaction cancelled. 14. If a transaction upon which transfer duly is payable is cancelled and rescinded by mutual consent of the parties thereto before transfer made, without any part of the consider ation therefor 1,~vi(1g b ....n p"in, rrr ~ny va lua ble <:"on\.i<:l ..~~rinn giv ..n nr "rnm;~..rl fnr rht: purpose of obtaining the consent to such cancellation, the transfer duty upon such transaction shall be remitted: Provided that (a) the parties thereto make solemn declarations in reference to such cancellation in the forms marked "K" and "L" in the Schedule with any necessary al terations in respect to each class of transaction; and (b) if any SUCll party is from any cause unable to make such declaration, the Minister may dispense with his declaration and, should he see fit, require or avccpt the: dcclaration of any agent 0'- PCl5011 acquainted with the: cj, ,-UlH stances. Partial remission when transaction cancelled after part consideration paid. 15. If a transaction upon which transfer duty is payable is by mutual consent of the parties thereto cancelled and rescinded before transfer is made, then if any part of the con sideration has been paid or any valuable consideration has been given or promised by either party to the other for or in respect of such cancellation, transfer duty shall be payable only upon the sum so paid, or the v...lue of any eocsidera tion other than money SO given, such value to be ascertained in the manner provided in section 4(2); and the owner may on a second alienation of the property amend the declaration to be made by him by setting forth the circumstances of such previous transaction and of the cancellation thereof. Enquiry by Registration Officer.when exemption sought, 16. If a person requiring to have any transfer or change of name effected in the deeds or other registration office claims to be exempted from the payment of transfer duty by virtue uf auy uf the c....cmptions mentioned in this Act, the registration officer shall require due proof by solemn declaration if need be of all facts and circumstances by reason of which such exemption is demanded, and he may also require the production of any deeds orinstru ments connected with the case which tend to show whether or not such exemption ought by law to be allowed. Hearing by High Court ofdispute between Registration Officer and claimant for exemption. 17. If a question arises between a registration officer and any person claiming to be entitled to any ouch exemption, rcgurding the right to such exemption or the extent of that 8 REVE1'UE: ACT 811902 s5,17-n r ight, the High Court or any judge may hear the registration officer and the said person lor any person or persons representing each respectively) as to the matter in question. and examine the proofs (if any) which shall have been offered in support of the claim to exemption, and call for such further proofs as may be necessary, and in a summary manner make such uruer a, ill lilt: ~.1[l::llIi'l;~ ,llall be just. Power a/registrar/OIl officer 10 refer claims for exemption to lire ACCOIlIIICIII/-Gelferal. l8. If", claim for exemption is made 10 a registration officer under sccricns JG 0'· 17, he may notwithstanding such sections refer the claim to the Accountant-General, and such claim shall be determinable between the Accountant-General and the claimant as though (he Accountant-General had been su bstituted for the registration officer in section 17. To whom dut y' payable. 19. (l) All du ties and interest under this Act shall be paid to the revenue officer fur the district in which the fixed property to be transferred or leased is situate, or to the revenue ntficcr at the rlar:" wh.. r.. th .. till ... 10 ~l\('h tix~rl property or lease is registered. (2) The revenue officer shall give a receipt for such duties and interest, and no transfer of such property, and no registration of a lease or cession thereof in respect of which duty is payable shall be made unless such receipt has been produced to arid deposited with the registration officer. So/mill declaration of sale, ele.. (Scll('dlllt:) 20. (I) No revenue officer shall grant a receipt for any duty referred to in section 19 payable upon or in respect of any sale and purchase, lease, exchange, or donation, until the parties have taken and su bscribed appropriate forms of solemn declaration set out in the Schedule. (2) The revenue officer may require toe production of any deeds or instruments ...uuuecred with the ...... se .... 11'.1 which lcnu LU snow what urnount ortransfer duty is payable. Solemn declaration by agent or broker. :lJ. If it appe:1C, to the revenue officer that any agent, auctioneer, broker, or other person acting for or on behalf of any party to a transaction in respect of which transfer duty is- payable has himself in his said capacity made and entered into such transaction, such revenue officer shall demand and receive the solemn declaration of such agent, auctioneer, broker, or other person either in lieu of or in addition to that 0'[ his principal as such revenue orncer deems fi[; and [he solemn declaration taken as aforesaid shall be in the form 1 m the Schedule. Solemn declaration in case ojdeath, etc., ot one of lite parties. 22. If in any case' it appears that one of the parties to any transaction in respect of which transfer duty is payable has died or has become mentally incapacitated or has departed from Swaziland without having taken and subscribed the necessary solemn declaration, the 9 reven ue office r rna y ei rhe r dis pcnsc wi th s uch so lcrnn dccl anil ion or recei ve in Iicu I hereof the solemn declaration of any ether person who may be ina position to test ify 10 the part i cular matters to be set fort h in such dcclai ation. Person bidding as (1[;('111 /0 disclose name ofprincipal. 23. If any fixed properly or lease is sold by public sale the auctioneer shall before or at or Iorthwtth alter the closing or the bidding ascertain from the bidder for whom he pur chases, and if sud' bidder professes to purchase for some person other than himself then the auctioneer or his assistant shall, jf the purchaser so disclosed is approved of, take down in writing the name of such biddeT and of tl,e p,:mc\pa\ fQ~ wnom he ?\Hl:n"il'OI:'.i, ~nQ until uie name of the purchaser, whether the bidder himself or someone else for whom he purchases. has been taken down in writing there shall be no sale to any person and the property or lease may be againput up to competition: Provided that it shall not be necessary that the name of the person for whom any bidder is purchasing shall be announced publicly to the bystanders if is made known to the aucrioneer ana Shall be taken down in WIlling as aloresaid by turn or rus assistant, Proceeding where bidder refuses 10 disclose name 0/ principal. 24. If any bidder whose bid has been accepted by the auctioneer refuses to declare when called upon to do so by the auctioneer for whom such bidder purchases the auctioneer may either treat and consider such bidder as being hirnsel! the purchaser, and such bidder shall thereupon be deemed to be the purchaser, or the auctioneer at his election may treat such biddinu as uu il and void and proceed afre~h as if it h"rl 11(',""r h"o>r"' rn a rll'· Provided that the auctioneer having once made his election either to treat such bidder as ihe purchaser 01· to proceed 10 sell afresh may not afterwards alter such elect ion Proceeding whcr» principal repudiates purchase. ~5. If J ny bidder shou Id JS a1"(1rcsaid dec IJ re rhe name of so me pc1·5011 as his priI1Cip<11 a nd such name is taken dO"11 as the purchaser and such named person afterwards refuses (0 accept the property purchased in his no me t hen lInt<"F th" hiddCl" I""'Jr1u"''''' ~ ~l\f1-;("i .. n r authority in writing Irorn his altcged principal authodsing him to make the O;Kw::l\a~ ("" such principal tile bidder shall himself (\I'lt bout prejudice 10 ether questions betwe-en tile parties) be liable to pay transfer duty: Provided that such bidder shall be entitled to recover the transfer dUly from his principal, if he proves that the principal did in fact give him authority to make the purchase in dispute. 26. Section 25 in so far as it relates to agents bidding at public sales shall apply muta:is mu tandis lope rsons purchasing fixed proper ty Or Ieases as agen rs for alleged prj ncipals otherwise than at public auction; and also to persons acquiring fixed property by way of 1,,:1"- for :llleB'l'd p r incipa ls where such lease fans under seer ion 3(2) O-nd (3). 10 RcYF.:-' ct : ACT 3; 1902 ss.27-30 Auctioneer, broker, etc.i forbidden 10 sell, etc .• to undisclosed principal. 27. (1) No auctioneer, broker or agent shall take down or receive in regard to any purchase or [case or fixed property on which transfer duty is payable the name of any person as purchasing or leasing such property in the manner commonly called and written "q.q." or receive in any other form the name of any person as purchasing or leasing such properly for an unnamed principal. (2) An auctrcncer, broker, or agent who contravenes this section shall be guilty 01 an ortence and Iiabte on conviction to a tine not exceeding one hundred rand. (3) This section shall apply to the purchase of any lease where transfer duty is pay able on such purchase. Payl!l('iIf of duty when sale or tease token over by agent (Srhedull!) 28. III any case of purchase or lease of fixed property if the person whose name has been declared and taken down as purchaser or lessee of such property denies that he gave authority for the making of such purchnsc or Icaac, or if for ony orhcr rcuaon such PC,~Ofl declines 10 accept the purchase, lease or exchange, and the agent Or alleged agent is willing to take such property for his own individual account. and the vendor or lessor consents thereto, no transfer duty shall be payable upon the sale or lease or alleged sale or lease to the alleged principal; but only a single transfer duty as if the sale or lease had been made ab initio 10 rne alleged agent in hb individual capactry, and [he solemn declarations by law requlred to be made shall be altered in the manner indicated in the forms marked M and N in the Schedule. Privarc sales and leases 10 undisclosed principals declared nul! and void, 29. Every sale of fixed property made otherwise than by auction, and every lease falling under section 3(2) and (3) in regard to which the purchaser or lessee does not profess to purchase or lease [or himself in his individual capacity, shall be wholly null and void uulcss <It the time of making and completion thereof the name of the principal for WhOlil the purchase or lease is made is disclosed and inserted in the contract which may be made in regard to such sale or lease. 30. (1) No lease of any mynpacht, claim or right to minerals, and no lease of any land or any stand for a period not less than ten years or for the natural life of any person mentioned therein, or which is renewable from time to time at the will or' the lessee indefinitely, or for perio ds which tog.. th.. r with th .. fir-st pe riod th e reof amount in all to not 1,,« than ten years, shall be of any force or effect if executed after the taking effect of this Act unless executed before a notary public, nor shall it be of any force or effect against creditors or any sub sequent bona fide purchaser or lessee of the property leased or any portion thereof unless it be registered against the title deeds of such property. (2) No cession of any lease mentioned in sub-section (I) made after the taking effect of this Act shall be of any force or effect against creditors or against any subsequent bonafide purchasers thereof unless such ce-ssion be registered in the registration office in which such lease is registered. 11 51 ATUTES OF SWAZtLA),O 5s.30-34 (3) No owner or lessee shal] cause a cession of any lease of a lot to bc registered or entered in any of his books or registers unless such cession bears an endorsement upon it showing that it has already been registered at the proper registration oflice. (4) Any person contravening subsection (3) shall be guilty of an offence and liable on conviction to a fine of two hundred rand for each such contravention. (5) For the proper carrying out of the provisions of this section the Minister may make regulations prescribing the manner in which leases and sales or cessions thereof shall be registered, and such regulations shall be published in the Gazette. Contract of sale [0 be ill writing: 31. 1\0 courrae t 0 f sa le \' 1- fixed pro pert y shu I1 be of any force 0 r effect unless it is in writing and signed by the panics thereto or by their agents duly authorised in writinc. Resale when vendor unable 10 enforce contract 0/purchase. 32. If any person who has sold any fixed property upon which sale transfer duty is payable satisfies the Minister that Ill!:" VUI dJa,t:l of such VIUjJCI ly cuuuot be uiscovereu wiLhin Swaziland, or has left Swaziland without taking transfer and without paying any part of the purchase money, and that such vendor is unable to obtain or enforce the fulfilment of the contract, the Minister may permit the vendor aforesaid, in case be sells the property again, to make the necessary alteration in the form of solemn declaration to be made by him in reference to such second sale: Provided that nothing herein contained shall alter or effect the law in reference to tile respective rights oj' remedies of such vendor and purchaser m regard to such first sale. 33. (I) Any person II ho makes any declaration \.\ bich coruuins any misstatement, or which conceals or fails to disclose any material or necessary fact relative to the nature of the transaction or the consideration passing or the value or amount on which duty is payable, shall Incur a penalty not exceeding One thousand rune, to be nxec by the Accountant General whose decision shall be final. (2) If bv reason of any such misstatement, concealment or non-disclosure, a lesser sum for duty has been paid than should have been paid. tile person liable for payment shall be Iiuble to m"k", ~ood to the Treasury the difference between the sum paid and the sum which should have been paid. togcther with interest thereon at the rare of twelve per 'cent per annum and ull costs of recovery, . (3) Any person who, with intent that the payment of any amount payable as transfer duty may be evaded by himself or any other person. knowingly and corruptly makes a declaration which is untrue in any material particular, 01· from which is wilfully omitted any fact material for the purpose of enabling the amount of duty to be correctly assessed, shall be guilty of an offence and liable on conviction [0 the penalties prescribed in law for perjury. (Amended P.2i196:J..) Reco l'eI'y of duty, 34. Transfer duty and any interest, valuation fees, fines, penalties or other sums payable to the Accountant-General under this Act shall be a deb: due to the Government, and may be recovered by action in any competent court. 12 RE VE:-; UE: ACT 8/1902 ss.35-37 Forms of declaration, 35. (I) The Minister m3.Y by notice in the Gazette prescribe forms of declaration either in audition to or in suhsrirurlor, for rhnse ~"t forth In Ih .. <:;,-h",dl,I", and any form of declaration so prescribed shall be deemed to be the declaration in the form required by this Act. (2) A II declarations, whether in the form set forth in the Schedule, or prescribed under tile PO\\CI'S of this section, shall be made before such persons as are by law entitled to administer oaths. Dui v pavahk: Vir transaction as (J IV!lOi('. 36. If two or more fixed properties held under separate registered titles are included in 0 nc transaction, the decl arati 0 ns rcla t I ve there to shall d isclose all the pro perties, an d also the full consideration payable on the whole transaction, and transfer duty sl13.11 be payable in one slim in respect thereat', unless the Accountant-General consents to an apportionment of duty ill respect of such several properties as they are severally transferred, Notice oflegal proceedings. 37. No kgal proceedings shall be brought by any person against the Accountant General or any revenue officer in respect of any matter or dispute arising out of the adrninis uunon llF rnts Act. unless nC least seven days' notice has been served 011 him at the office of the Accountant-General. SCHEDULE (Under section 4, 13, 14, 20, 28, 35 of the Act) FORM "A" DECLARATION OF SELLER [, A. B., do solemnly and sincerely declare that on the day of 19 . a nd no t before r sol d to en. t he property h..r.." n des scribed, that is to say [here describe the property] and that the full and true consideration passing to me for such sale is R and I further declare that there is not any agreement, condition or understanding between me and the said C. D. whereby he has paid or is to pay to me or to any other person whomsoever for or in respect of or in connection with the pt.1t<;hase by him of the said property arry surn of money over arid nbove the said sum of R save and except certain charges or payments which fall under or come within one or more of the heads or items of charges or payments mentioned in section 6 of the Transfer Duty Act No.8 of 1902. And I further declare that r have rmr r.. r .. iv .. rl , nnd Ih", ( nrn not to receive, DOr has any other person received, nor is any other person to receive for my use or benefit or at my instance or request any valuable consideration besides the said sum of R save and except in so far as any of the charges above mentioned and to be paid by the said C. D" might btl held or taken to be payable for me or on my behalf. 13 S] ATUTES Of SWAZILAND And I further declare that the said C. D. is the only pcrsnn who has ever purchased 111C said property from me, and J never sold the same to any other person, And 1 make thiS solern n dcclu fa I i0 11 consc icn t iously beIicvi11 g I he sa me ! (1 he true. Declared before me this day or A.. B. 19 DECLARArror- OF PURCHASER J, C. D.. do solemnly and $.\l\c.erel)' ded~Te t'nat em ~ne (by "f . 1Cj • n nrl not h.-fore I bOllght from A. B. the prOperly herein described [here describe the property] and that the fuJI and true consideration given by me for such property whether to the said A, B. or any other person in connection with such sale is R and I further declare that I have Dot nor has any person to my know ledge on my account given nor is there by me or on my behalf to be given any other valuable consideration for or in respect of or in connection with the alienation 10 me of the said pro perty saw and except certain charges or payments which fall under or come within some one or more of the heads or items of charges or payments mentioned in section 6 of the Transfer D\.lty Act No. B of 1902. And I make tnt" wkmn oed'a~a1ion l:oMl;.lemiou'S\)' belieVing the same to be true. Declared be fore me this day of FOR~l "c., C. D. 19 BY LESSOR OF FlXED PROPERTY I, A. B.. do solemnly and sincerely declare that on the day I leased 10 C. D. for a period" of the property herein described [here set [orth the property] and that the full considernt ion passing to me for Stich lease is: (0) A yearly rental of R (b) By way of further consideration R I further declare that there is not any agreement, condition or understanding between me and the said C. D., whereby he has paid, or is to pay, to me or to any other person whom soever for, or in respect of, or in connection with, the lease to him of the said property any sum 0 f money or other val ua bJe considera tion over and a bove the said sum of R save dud except certain ChilJ.!:O::~ Q. l...tYlJlelH~ which fall under or cume within some One or more of the heads or items of charges or payments mentioned in section 6 of the Transfer Duty Act No.8 of 1902. And I make this solemn declaration conscientiously believing the same 10 be true. 19 Declared before me at thls day of "The period or the lease including the periods or renewal if any should here be stated. 14 day of the property herein given by me for the FORIo1 "D" DECLARATION OF LESSEE I, c. D., do solemnly and sincerely declare that on the I hired from A. B. for a period of dcscri bed [here set fan h the propenyl and that the full consideration said reuse is: (a) A yearly r cntui of R (6) By way of further considerurion R I further declare that there is not any agreement or understanding between me and the s,lld A. [3., whereby I have paid, or am to pay, to the said A. B., or to any other person whomsoever for, or in respect of. or in connection with, the lease to me of the said property uny sum of money or other valuable consideration over and above the said sum of R save :.II1d except certain charges or payments which fall under or come \\ ii hin some one or more of the heads or items of charges or payments mentioned in section fi or the Transfer Duty Act No.3 of 190:!. And I rna kc this solemn declaration conscientiously believing the same to be true. 19 Declared before me at this day of DECLARATION OF EXCHANGE We, the undersigned proprietors respective Iy of the lollowmg properties, that is to say: I, the said proprietor of and I, the said proprietor of do severally, solemnly, and sincerely declare that we have mutually agreed with each other to the following exchange, namely: [rut t iculut s ul tlre t:~dIUIIKt: und mille 01 rile properttes exchanged.]"" And we declare that we have not, nor hJS any person to our knowledge on our account given or received, nor is there by us or on our behalf to be given or received by the one to or from the other of us any money or other valuable consideration other than as above .t~ted, for, or ill respect of, tl,e e>:.change and the mutual transfer of the uforcaaid properties. And we make this solemn declaration conscientiously believing the same to be true, 19 Declared before me at this day of '"If any money or other valuable consideration is given in respect of the exchange it should be stated here. (I$S"U( II J5 FORM "F" DECLARATION OF DONOR I, A. E., declare solemnly that in consideration of the special affection and love which 1 feel and cherish for C. D., and by reason of the good and valid consideration which specially prompts me thereto, I, by ...... ay of donatio filler vivos or gift between living persons have irrevocably presented, given and bestowed on, and for [he benefit of, the said C. D. certain properly. [Here describe the properly] And J declare that the value of the said property is to the best of my knowledge and belief R And J, the said A. u., do Iurthcr declare that I presented the said property as a gift to the said C. D., on [he day of 19, and not before that date, and I neither have nor shall receive any valuable consideration for, or on account of, the alienation of the said property. And I make this solemn declaration cnnscientiously hdip.ving thl" same 10 be true. 19 Declared before me at this day of FORM "G" DECLARATION OF .DON EE I, C. D., declare solerrmly (h:<t I accept rhc present by way of donatio inrc.: vivos or l;jft between living persons made and given to me by A. B. of certain property. [Here describe the properl,r.] And 1, the said C. D., declare that the value of the said property is and that the said A. D. made the gift on the udy uf 19 and not before that date; and that neither I nor anyone else on my behalf, or for my account, bas given, or promised, or intends to give, or pay any valuable consideration whatever for, or on account or. the alienation of the said property. And I make this solemn declaration conscientiously believing the same to be true. 19 Declared before me at . this FORM "H" day of DECLARATlON ON PARTITION OF FIXED PROPERTY we, tilt: uuder Sigued , joint proprietors or me farm (or erf) called , in extent morgen and square roods No. situated in the district of , do severally, solemnly and sincerely declare that we have mutually agreed each with the other to the following partition of the said land, so as to give to each party a defined portion as his separate ami excl usive property, namel y: 16 [Here set out particulars of sub·division.] And we declare that we have not, nor has any person to our knowledge all OUf account, given or received, nor is there by us, or on our behalf, to be ziven or received by the one to or from the other of us any money or other valuable consideration for, or in respect of, the partition and mutual transfer of the aforesaid land. And we make this solemn declaration conscientiously believing the same to be true. 19 De<;hu-:d befor1!> me at FORM "1" d",)' Q\ DECLARATION OF SALE BY AN AGENT 1, , do solemnly and sincerely declare that I have acted as the agent (auctioneer or broker as the case may be) in making the sale" (or ourchase) of certain sold by to and that I know of my own knowledge the amount of the consideration given therefor; And 1 do further declare that the said sale was made on the and not before; and that the sum of is 10 the bestof my knowledge and belief the fuJI and entire consideration to be given in regard to the alienation of the said DroDerty. ann that to tw.. h<>".-t <":\f my kno",,\~use :..no be\"lei no further or other valuable consideration has been given or is to be given by or on behalf of the said for or in respect of the said properly, save and except certain charges and payments mentioned in section 6 of the Transfer Duty Act No.8 of 1902. And I make this solemn declaration conscientiously believing the same to be true. 19 Declared before me at this day of "Where the transaction is a lease, exchange or donation, the fonn may be altered accord mgly, FORM 'OJ" DECLARATION OF SELLER [When there has been a former sale to a purchaser subsequently declared insolvent whose trustee has elected to abandon the sale.] I, A. B., do solemnly and sincerely declare that the sum of R i~ rh" full and entire consideration for which I have sold to C. D. the following properly, that is to say: [Here describe the property.) And I declare that I sold the same to the said C. D. on the day of , 19 , c.l1d no! before, and that there 13 not Any agi ccruent, couuruon, or understanding: between me and the said C. D. whereby he has paid or is to pay to me or to any other person whomsoever for or in respect of or in connection with the purchase by him of the said property any sum of money over and above the said sum of R save and except certain charges Or payments which. fa.llunder or come within on~ O! nv:}'('e o{ t\)e Theao." u. ileUJ~ u[LlJ(u gesor puyurcnto urenuoned in section 6 of the Transfer Duty Act No. II of JYUlo 17 STATUTES OF SWAZILAND And I further declare that I have not received, and that I am not 10 receive, nor has any other person received, nor is any other person to receive, for my use or benefit, or at my instance or request any valuable consideration besides the said sum of R save and except in so far as any rrf Ih". charges above specified, and to be paid by till; ~ajLl C. D., might be held or taken to be payable for me or on my behalf. And I further declare that the only person other than the said C. D. to whom I ever sold the said property, or who at any time purchased the said property from me, was E. F., to whom r sold the same on the day of , 19 , for the sum of R And J [nrr h.. r declare that since the suid so Ic to the said I:. F. lie has become Insolvent' and that the trustee of his insolvent estate has ejected to abandon the said sale. And I make this solemn declaration conscientiously believing the same to be true. Declared before me at this day of , 19 FORM "K" DECLARATION BY SELLER OF CANCELLATION I, A. D., du suleumly and sincerely declare that 1 sold to C. D. on the day of , 19 , tbe property following, namely: [Here describe tile property.] for the sum of R and I declare that I have never received any sum of money Or nth"" vnlll"bJe conaiderarion on account of the said pUI chase other than And I further declare that I have consented and agreed with the said C. D. to cancel by mutual consent the said sale, which sale was on the day of 19 , cancel led accordingly, And I further declare that J have not received, nor am I to receive from nor have I given, nor am I to give to (ill;; ~iiil! C. D" or any other person, any money or other valuable consideration for or in reference to the cancellation of the said sale other than as above stated. And 1 make this solemn declaration conscientiously believing the same to be true. Declared before me at this day of 19 FORM "L"' DECLARA TION BY Pi JRrH ASER OF CANCELLATJQN 1, C. D., do solemnly and sincerely declare that I bought from A. B. on the day of , 19 , the following property, namely - [here describe the properly] - for the sum of R and I declare that I have never givI'n to the said A. B, an)' sum of money or ether valuable consideration on account ot the said purchase other than And I further declare that I have applied to the said A. B. to consent to cancel the sale, which sale has accordingly been cancelled by mutual consent. And I further declare that Lhave not given or received, nor am r to give or receive, nor ha3 any vel ~U1J un my behalf to my knowledge given or received, n or is any person to my knowledge to give or receive any money or other valuable consideration for or in reference to the cancellation of the said sale other than as above stated. And 1 make this solemn declaration conscientiously believing the same to be true, Declared before me at this davof 19 18 REVENUE: ACT 8/1902 FORM "M" DECLARATION OF SELLER WHEN AGENT ACCEPTS SALE FOR HIMSELF J, A H, no solcmoly and s iriccre ly declare that I sold to C. D. as the agent or alleged agent of E. F. on the day of 19 , and not before, the property following, namely - [here describe the properry]- for the sum of R And I declare that the said E. F. has declined to accept the property, and that the said C. D. has signified his willingness to take the same 10 and for his own individual account for the said sum of R neither more nor less. And I further declare that there is not any agreement, condition, or understanding between me and the said C. D. whereby he has paid or is to pay to me, or to any other person whomsoever for, or in respect of, or in connection with the purchase by him of the said property, any sum of money over and above the said sum of R save and except certain charges or payments which fall under or come within one or more of the heads Ut itcuis uf <,;!L,uge5 Ul j.Jaylllelll" ruenuoned in section 6of the Transfer Duty Act 8/ I902. And 1 further declare that I have not received and that [ am not to receive, nor has any other person received, nor is any other person to receive for my use or benefit or at my instance, or request, any valuable consideration besides the said sum of R save and except in so far as any of the charges above specified, .JuLl ro be vuiu uy the ~aju C. D., might be held or taken to be payable for me or in my benau, And I further declare that the said C. D. as the agent or alleged agent of the said E. F. is the only person who has ever purchased the said property, and that 1 never sold the same to any other person than in manner aforesaid to the said C. D., who with my consent and by virtue of the Act in that behalf provided takes over the property aforesaid as his own. And I make this solemn declaration ccnscrentiousty beheving the same to be true. A. B. 19 Declared before me at this day of (\Vherc the agent ha~ accepted a Je03.5e tile CUlm lH<ly be altered accorulngly.) FORM "N" DECLARATION OF PURCHASER~ BY AGENT WHO ACCEPTS THe SALE FOR HIMSELF I, C. D., do solemnly and sincerely declare that r did in the name of E. F. purchase from A. B. on the day of ,19 , and not before, the properly following, namely - [here describe the properry]- for the sum of R Arid 1 further declare thac the 51lid C. F. lla~ uediued tu d,<,;<,;ej.Jl tile ,,<.liLt property ami that me said A. B. has consented and agreed that I shall take over the said property as the purchaser thereof for the sum of R . And I further declare that 1 have not, nor has any person to my knowledge on my account, given oar is there, by me: or on my behalf, to be given any other valuable consideration of any kind whatever for or in respect of, the alienation to me or the said property, save and. except certain charges or payments which fall under or come within some one or more of the heads or items of charges or payments mentioned in section 6 of the Transfer Duty Act No, 8 of 1902. And I make this solemn declaration conscientiously believing the same to be true. C. D. 19 Declared before me at this day of *Where the agent has accepted a lease the form may be altered accordingly. 19