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SECURITY BY MEANS OF MOVABLE PROPERTY ACT OF 1993

The purpose of the Act is to, inter alia:
  • Regulate the legal consequences of the registration of a notarial bond over specified movable property;
  • To exclude the operation of the landlord’s tacit hypothec in respect of certain movable property;
  • To repeal the Notarial Bonds (Natal) Act of 1932.
The Act prescribes that if a special notarial bond, hypothecating corporeal movable property specified and described in the bond in a manner which renders it readily recognizable, is registered after the commencement date of the Act in accordance with the Deeds Registries Act of 1937, such property shall, subject to any encumbrance resting upon it on the date of registration of the bond, be deemed to have been pledged to the pledgee as effectually as if it had expressly been pledged and delivered to the pledgee, notwithstanding the fact that such property has not been delivered to the pledgee.

Furthermore, that upon discharge of the debt secured by the bond, the pledgee shall at the request of the pledgor furnish to the pledgor, free of charge, proof of such discharge in the form required for the cancellation of the bond.

Furthermore, the Act prescribes that notwithstanding anything to the contrary in the common law or in any other law, movable property which while hypothecated by such a bond is in the possession of a person other than the pledgee or to which an instalment sale transaction is applicable, shall not be subject to a landlord’s tacit hypothec. The provisions shall not apply if such a bond is registered after the landlord’s tacit hypothec has been perfected. The provisions of the Act do not affect any rights of the State or other persons supported wholly or partly by public funds or any rights under the Agricultural Credit Act of 1966.

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AA SLAMAT - Attorney-at-Law
B.COM (Law & Economics), LL.B. (Mercantile Law), LL.M. (Commercial Contracts & Commercial Law), RPE 2004 (South African Institute of Financial Markets)

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