Transfer Duty Act, 1902
Act 8 of 1902
- Commenced on 5 February 1902
- [This is the version of this document at 1 December 1998.]
1. Short titleThis Act may be cited as the Transfer Duty Act, 1902.
2. InterpretationIn this Act unless the context otherwise requires—“fixed property” includes—(a)land and any fixtures thereon, any servitude or the usufruct thereof or any other limited interest therein other than a lease;[Amended K.O-I-C. 29/1973](b)mynpachts, claims and stands;(c)any rights to minerals or precious stones on any land;(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 encumbrance 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”;“registration office” includes any public office where title to fixed property is registered according to law;“sale” includes “cession”;“transfer duty” means the duty payable in terms of section 3.
3. Levy of dutySave as in this Act excepted, a duty of—
4. Valuation for payment of transfer duty (Schedule)For the purpose of ascertaining the value of fixed property or a lease thereof chargeable with transfer duty—
5. Any additional consideration passing to be taken into account in ascertaining value of propertyIf in any case some additional valuable consideration is given 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 money, the said party may by 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(a), (b) and (g) shall apply to the value so put if it appears to 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 a value thereon.
6. Costs and charges not forming part of valuation on which duty is payableFor the purpose of the payment of transfer duty the following shall not be deemed to form part of the consideration given in respect of the acquisition of any fixed property or lease—
7. When duty is payableThe transfer duty upon or in respect of every sale, lease, exchange or donation shall be payable within six months from the date of such sale, lease, exchange, or donation as the case may be, and from 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 emalangeni per centum per annum shall be payable and shall be recoverable as part of the duty.
8. When payable in cases of deferred possessionIf a contract of sale, lease, exchange or donation is entered into, by which it is stipulated that possession of such property shall not be given, or that the said sale, lease, exchange or donation shall not take effect until some future date, the date at which the contract was 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. When duty payable in cases of conditional sale, etc.If a sale, lease, exchange or donation of fixed property is conditional, the period of six months mentioned in section 7 shall be reckoned from the day on which the contract became binding upon the parties thereto:Provided that if such contract is dissolved by reason of the happening of any resolutive condition after the payment of transfer duty, then upon proof given of such dissolution such duty shall be returned.
10. Liability to duty in cases of joint ownershipIf any fixed property or lease is registered in the 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, alienation, 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 registration office.
11. Remission of dutyNo transfer duty shall be remitted upon any transaction on which duty is payable under this Act, except as herein provided and except upon transactions with regard to which the transfer duty, if paid, would be paid directly form Government revenue.[Consolidated with P.12/1962]
12. Return of duty if sale, etc., declared voidIf 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 payable, and if paid shall be returned.
13. Exemptions from obligation to pay duty (Schedule)
14. Remission of duty when transaction cancelledIf a transaction upon which transfer duty is payable is cancelled and rescinded by mutual consent of the parties thereto before transfer made, without any part of the consideration therefor having been paid, or any valuable consideration given or promised for the purpose of obtaining the consent to such cancellation, the transfer duty upon such transaction shall be remitted:Provided that—
15. Partial remission when transaction cancelled after part consideration paidIf 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 consideration 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 value of any consideration other than money so given, such value to be ascertained in the manner provided in section 4(b); 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.
16. Enquiry by registration officer when exemption soughtIf 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 of any of the exemptions 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 or instruments connected with the case which tend to show whether or not such exemption ought by law to be allowed.
17. Hearing by High Court of dispute between registration officer and claimant for exemptionIf a question arises between a registration officer and any person claiming to be entitled to any such exemption, regarding the right to such exemption or the extent of that right, the High Court or any judge may hear the registration officer and the said person (or 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 order as in the premises shall be just.
18. Power of registration officer to refer claims for exemption to the Accountant-GeneralIf a claim for exemption is made to a registration officer under sections 16 or 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 the Accountant-General had been substituted for the registration officer in section 17.
19. To whom duty payable
20. Solemn declaration of sale, etc. (Schedule)
21. Solemn declaration by agent or brokerIf it appears 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 of his principal as such revenue officer deems fit; and the solemn declaration taken as aforesaid shall be in the form I in the Schedule.
22. Solemn declaration in case of death, etc., of one of the partiesIf 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 revenue officer may either dispense with such solemn declaration or receive in lieu thereof the solemn declaration of any other person who may be in a position to testify to the particular matters to be set forth in such declaration.
23. Person bidding as agent to disclose name of principalIf any fixed property or lease is sold by public sale the auctioneer shall before or at or forthwith after the closing of the bidding ascertain from the bidder for whom he purchases, and if such bidder professes to purchase for some person other than himself then the auctioneer or his assistant shall, if the purchaser so disclosed is approved of, take down in writing the name of such bidder and of the principal for whom he purchases, and until the 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 again put 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 auctioneer and shall be taken down in writing as aforesaid by him or his assistant.
24. Proceeding where bidder refuses to disclose name of principalIf 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 himself the purchaser, and such bidder shall thereupon be deemed to be the purchaser, or the auctioneer at his election may treat such bidding as null and void and proceed afresh as if it had never been made:Provided that the auctioneer having once made his election either to treat such bidder as the purchase or to proceed to sell afresh may not afterwards alter such election.
25. Proceeding where principal repudiates purchaseIf any bidder should as aforesaid declare the name of some person as his principal and such name is taken down as the purchaser and such named person afterwards refuses to accept the property purchased in his name, then unless the bidder produces a sufficient authority in writing from his alleged principal authorising him to make the purchase for such principal the bidder shall himself (without prejudice to other questions between the parties) be liable to pay transfer duty:Provided that such bidder shall be entitled to recover the transfer duty from his principal, if he proves that the principal did in fact give him authority to make the purchase in dispute.
26. Provisions to apply to private sale and to leases, etc., by agentSection 25 in so far as it relates to agents bidding at public sales shall apply mutatis mutandis to persons purchasing fixed property or leases as agents for alleged principals otherwise than a public auction; and also to persons acquiring fixed property by way of lease for alleged principals where such lease falls under section 3(2) and (3).
27. Auctioneer, broker, etc., forbidden to sell, etc., to undisclosed principal
28. Payment of duty when sale or lease taken over by agent (Schedule)In 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 purchase or lease, or if for any other reason such person declines to 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 to the alleged agent in his individual capacity, and the solemn declarations by law required to be made shall be altered in the manner indicated in the forms marked M and N in the Schedule.
29. Private sales and leases to undisclosed principals declared null and voidEvery 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 for himself in his individual capacity, shall be wholly null and void unless at the time of making and completion thereof the name of the principal for whom 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. Lease of land for ten years and more to be notarial
31. Contract of sale to be in writingNo contract of sale of fixed property shall be of any force or effect unless it is in writing and signed by the parties thereto or by their agents duly authorised in writing.
32. Resale when vendor unable to enforce contract of purchaseIf any person who has sold any fixed property upon which sale transfer duty is payable satisfies the Minister that the purchaser of such property cannot be discovered within 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 he 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 the respective rights or remedies of such vendor and purchaser in regard to such first sale.
34. Recovery of dutyTransfer duty and any interest, valuation fees, fines, penalties or other sums payable to the Accountant-General under this Act shall be a debt due to the Government, and may be recovered by action in any competent court.
35. Forms of declaration
36. Duty payable on transaction as a wholeIf two or more fixed properties held under separate registered titles are included in one transaction, the declarations relative thereto shall disclose all the properties, and also the full consideration payable on the whole transaction, and transfer duty shall be payable in one sum in respect thereof, unless the Accountant-General consents to an apportionment of duty in respect of such several properties as they are severally transferred.
37. Notice of legal proceedingsNo legal 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 administration of this Act, unless at least seven days’ notice has been served on him at the office of the Accountant-General.
History of this document
01 December 1998 this version
05 February 1902
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