SADJSADJS o u t h A f r i c a n D e e d s J o u r n a l

April 2006 • Issue No, 8

DEPARTMENT OF LAND AFFAIRSCHIEF REGISTRAR OF DEEDS

Application of Section 45bis,Act 47 of 1937

Land Registration in Rwanda

Electronic Land Registration:Options from a Legal Perspective

Overview of ConferenceResolutions

The editorial committee wishes all readers a belatedprosperous and blessed 2006 and it is trusted that you and

yours will enjoy health and Godspeed.

In terms of Chief Registrars Circular 16 of 2005, the year got offto a jump start with 54 new resolutions taken at the 2005Conference of Registrars. These resolutions have a vastimpact on the day-to-day practice of conveyancing and notarialpractice and should be thoroughly perused. Should readers notagree with any of the resolutions taken, it would be appreciatedif their views could be received for publication and forplacement on the agenda for the 2006 Conference ofRegistrars. See also the discussion by George Tsotetsi onsome of the Conference Resolutions on Page 39.

Mr Lenthiss du Pont has been appointed the new registrar ofdeeds for Mpumalanga, which office will be situated atNelspruit. Congratulations Lenthiss and it is trusted that you willmeet the challenge awaiting you.

Readers will note that our journal is also read internationally(see letters to the editor). Thank you Mr Simms for theaccolades! Your appeal to readers is echoed.

The winner of the best contribution for the October 2005 issuegoes to Ms Alexandré Lombaard for her excellent series ofarticles on the Subdivision of Common Property. A specialaccolade also to Ms Kilbourn for her splendid exposition on thestatistics. The editorial committee also wishes to extend theirsincere thanks to Mr Vosloo for his superb photos and Article onthe Cape Town Deeds Registry. Thank you for your greatarticle.

ALLEN WEST - EDITOR

Contributions may be sent to the Editor:Via e-mail or postallenW@justcol.org.zaA S WestPrivate Bag X659PRETORIA0001

The newsletter is also published in the Department of LandAffairs’ website: www.dla.pwv.gov.za

CONTRIBUTORS:A S West; A Lombaard; M Grovè; G Tsotetsi; G Hattingh; F G TRadloff; E Rurangwa; J Visser; P J Weideman; A S Simms –United Kingdom; D Lee

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Contents Editorial

EDITORIAL COMMITTEEAllen West - Deeds Training (Editor)Alwyn van Jaarsveld - UmtataGert Hattingh - Office of the Chief Registrar of DeedsJoanne Dusterhoft - King William’s TownMkhalela Lebese - BloemfonteinMagda Deetlefs - VryburgHennie Geldenhuys - Office of the Chief Registrar of DeedsDudley Lee - Cape TownPogiso Mesefo - PretoriaZandré Lombaard - Deeds Training (Scribe)Marissa Greeff - Directorate: PR & External CommunicationMarie Grovè - Deeds TrainingWiseman Bhuqa - PietermaritzburgAlan Stephen - JohannesburgLevina Smit - KimberleyGeorge Tsotetsi - Office of the Chief Registrar of DeedsGustav Radloff - Conveyancer, MacRobert Inc.Dorethea Samaai - Directorate: PR & External Communication

• Editorial (i)

News• New Registrar for Mpumalanga 4• Course on Sectional Titles Botswana 5• Deeds Registration Course: Level VII 5• New Registrar Appointed in Botswana 8• Course for Third Year Students in the National

Diploma in Deeds Registration Law 11

Property Law Update• Who Ultimately Carries the Responsibility for the

Correctness of Facts in Deeds and Documents? 1• Qualification of Servitudes 6• The Application of Section 45(bis) Act 47 of 1937

in the Deeds Registries 8• Lengthy or Complicated Conditions 10• Noting a Caveat Applicable to an Unregistered Land

Parcel in a Deeds Registry’s Records 11• Change of Name of Trusts 13• Authentication of Documents: Rule 63 vs

The Hague Apostille Convention 14• Application of Section 4(1)(b) 18• A Brief Overview in respect of Recent Registrars’

Conference Resolutions 18• Restriction on Sale in Execution of Property in Deceased Estates:

Section 30 of the Administration of Estates Act, Act 66 of 1965 25

Case Law• All the cases you must take note of 33

Recently Published Articles and Research• References to all relevant published articles and

legal research 34

Books• A list of books relevant to the field of property law 34

Other features• Letters to the Editor 13• Electronic Land Registration: Options from a Legal

Perspective – Part I - 22• Land Registration and Administration Developments in

Rwanda 26• The Vryburg Deeds Registry 31

DISCLAIMERThe views expressed in the articles published in this journal do not bind the Department ofLand Affairs and the Chief Registrar of Deeds. The Chief Registrar of Deeds does notnecessarily agree with the views of the contributors.

Since the inception of section 15A of the DeedsRegistries Act 47 of 1937 (“the Act”) read in

conjunction with regulation 44A of the Act, confusion ormisconceptions have reigned as to who carries whatresponsibility, and to what extent does suchresponsibility extend for ensuring the correctness offacts contained in deeds and documents.

In terms of section 3(1)(b) of the Act, the Registrar ofDeeds has a duty to examine all deeds and otherdocuments lodged for execution or registration and toreject them if they don’t conform with the laws,practices and procedures. However, in 1984 (seesection 6 of the Deeds Registries Amendment Act 27of 1982) section 15A was enacted, which placedcertain responsibilities on the preparer of deeds anddocuments. The responsibilities assumed by thepreparer are set out in regulation 44A of the Act.Unfortunately, this regulation is couched in such amanner that it is open to different interpretations, onwhich the Conference of Registrars has on numerousoccasions had to make a ruling.

This article is not intended to provide guidance on theinterpretation of the regulation, but rather to scrutinizethe different interpretations given to the regulation andto urge the legislator, when reviewing this regulation,to clarify it so as to demystify the uncertainty.

The concern which immediately comes to mind is thatof “who will ultimately be held responsible, given theprovisions of section 3(1)(b) and 15A, should a deedbe registered and such act of registration leads to acourt action from which a claim for damagesemanates?” It is submitted that the only responsibilitywhich the preparer of a deed or document assumes isthat which is clear and unambiguous in the provisionsof regulation 44A of the Act.

Let us endeavour to analyze the provisions ofregulation 44A of the Act and provide the differentinterpretations which might be in conflict with existingrulings or circulars issued by Deeds Registries or theoffice of the Chief Registrar of Deeds.

The introductory words of regulation 44A provide thatthe person signing the preparation certificate accepts,

to “the extent provided for in this regulation”,responsibility for the correctness of the facts stated inthe deeds and documents or which are relevant inconnection with the registration or filing thereof,namely:

• Identical copies

In those Deeds Registries where deeds anddocuments are still lodged in duplicate due to theoffice not being mechanized, i.e. on the micro-filming system, the preparer assumes responsibilitythat all copies of deeds or documents are identicalat date of lodgement (regulation 44A(a)).

This sub-regulation is clear and unambiguous, andshould any fault be found in the contents of theduplicate original, the preparer will accept fullresponsibility. However, examiners still compare thecopies and raise queries should the copies not beidentical.

• Correctness of Conditions

The preparer of a deed of transfer or certificate oftitle to land assumes responsibility that all theapplicable conditions of title have been correctlycarried forward from the title into the new deed oftransfer. Similarly, such preparer also assumesresponsibility that the applicable conditionsendorsed against the title deed have been carriedforward into the new deed of transfer. Lastly thepreparer assumes responsibility that anyproclaimed township conditions, for first timetransfers from a township title, have been correctlyincorporated in the new deed of transfer (seeregulation 44A(b)).

Holistically seen, the preparer takes fullresponsibility for the conditional clause of a deed oftransfer, but alas this is not so in practice. TheRegistrar of Deeds, in terms of section 3(1)(b) ofthe Act, still checks the conditional clause of a deedof transfer for the following:

• that any restrictive conditions have beencomplied with;

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Who ultimately carries the responsibility for thecorrectness of facts in deeds and documents?

By: Allen West – Deeds Training, PRETORIA

• that conditions which may have lapsed orcomplied with be removed from the conditionalclause (see clause 3 of CRC 8 of 1983);

• that all the relevant township conditions, ascontained in the proclamation of the township,have been carried forward;

• that conditions are correctly “plotted” and thenecessary qualification of the conditions arecorrectly effected (see RCR 26 of 1987).

It is clear from the above that the responsibility ofthe preparer and the Registrar of Deeds overlap,and one wonders in whom the responsibility reallyvests.

It must be stressed that this duplication ofresponsibilities does, however, contribute to thesecure registration system that South Africa has,but the question that must be asked is: “When thepaw-paw hits the fan who will ultimately be heldliable for any damages which may emanate from atitle which has a lacuna in its conditional clause.”

• Correctness of facts

The preparer of a deed of transfer, certificate of titleconferring title to immovable property or mortgagebond assumes responsibility that the particulars forwhich the preparer of the power of attorneyassumes responsibility, have been correctly carriedforward from the special power of attorney into thedeed of transfer, certificate of title or mortgage bond(regulation 44A(e)).

Again, seen holistically, a Registrar of Deeds neednot inter alia examine the preamble and vestingclause of the deed of transfer, certificate of title ormortgage bond, as the preparer of the deed oftransfer, certificate of title or bond has alreadyassumed responsibility that it is identical to thatcontained in the power of attorney. The Registrar ofDeeds should thus only examine the particularscontained in the power of attorney to determine ifthey conform with the practice and procedures.

Once again, this is not the case. Registrars ofDeeds still check the aforesaid clauses in the deedof transfer and query any discrepancies that mightprima facie be incorrect. As mentioned above, thisdoes contribute to security of title, but who willultimately assume the responsibility “should thepaw-paw hit the fan?”

• Correctness of names, identity numbers andstatus

The preparer of a power of attorney, consent orapplication assumes responsibility for thecorrectness of the full names, identity number/dateof birth and marital status of a natural person, andin the case of any other person or trust, that itsname and registered number, if any, are correctlyreflected in that deed or document (regulation44A(d)(i)(aa)).

This responsibility goes without saying for parties indeeds and documents where such parties are notalready recorded in the registers of the DeedsRegistry. However, should the transferor, cedent,mortgagor, etc. be acting, the Registrar of Deedswill check whether the names, identity numbers andstatus correspond with the Deeds Registry records.Should they differ, proof will be required, and theregistered deeds will either have to be amended interms of section 4(1)(b) of the Act, or proof providedas to the change. Alternatively, the new deeds anddocument will need to be amended.

It is also abundantly clear from this sub-regulationthat the preparer does not assume responsibility forthe locus standi of the natural person. However,does the Registrar of Deeds assume suchresponsibility? If it is not evident from the deedsoffice records that the person acting does not havelocus standi, no query in this regard will be raised.Surely this responsibility should be placed solely onthe shoulders of the preparer and regulation 44Asuitably adapted. The Registrar of Deeds has noway of policing this other than by raising a questionon each act of registration as to whether the actingparty has locus standi.

Similarly, the Registrar of Deeds at presentassumes responsibility for the contractual capacityof parties, but should this not also be theresponsibility of the conveyancer?

• Proof of appointment and powers to act

The preparer of a power of attorney, consent orapplication assumes responsibility in terms ofregulation 44A(c) of the Act for the following:

• that the person acting as a principal orrepresentative, excluding a principal in terms of apower of attorney, has been appointed in such

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capacity (see CRC 8 of 1983 read with RCR 19of 1994).

• that the person acting as representative is actingin accordance with the powers granted tohim/her;

• that any security required has been furnished.

There are two schools of thought on theinterpretation of this sub-regulation. Firstly, theregulation is interpreted such that the Registrar ofDeeds does not assume liability for the appointmentof any person acting in a representative capacityand further that such person has the full powers todeal with the property concerned. This has beenconfirmed in certain of the rulings taken by theConference of Registrars, but it is not consistentlyapplied.

The second school of thought interprets the sub-regulation such that the preparer merely assumesresponsibility that the person is appointed in thatcapacity and is acting within the powers set out inthe document evidencing such appointment.Should this be the correct interpretation of the sub-regulation, then it is evident that most, if not all, theconference resolutions taken on this matter wereincorrectly decided and that the Registrar of Deedswill once again have to request all documentation toprove the powers of:

- trustees of insolvent estates;

- liquidators of companies and CloseCorporations;

- representatives acting in terms of section 18(3)of the Administration of Estates Act 66 of 1965;

to mention but a few.

However, should the wider interpretation be givento this sub-regulation, as held by the first school ofthought, then the provisions of section 42(1) and42(2) of the Administration of Estates Act 66 of1965 seem superfluous, as the conveyancer hasalready assumed such responsibility.

Should the more narrow interpretation be affordedthis sub-regulation, then one wonders who will bearthe brunt “should the paw-paw hit the fan”.

• Proof of signing documents in a representativecapacity

The preparer of a power of attorney, consent orapplication assumes responsibility that, except forpersons appointed in terms of a power of attorney,the necessary authority has been obtained for thesigning thereof in a representative capacity onbehalf of a company, close corporation, church,association, society, trust or other body of personsor an institution whether created by statute orotherwise (see regulation 44A(d)(ii)(aa)).

The effect of this sub-regulation is that the Registrarof Deeds no longer has to determine whether thenecessary resolution has been obtained for aperson acting on behalf of the institutions asaforementioned. However, reference thereto mustbe provided in the preamble of the power ofattorney, consent or application (see CRC 8 of1983).

In terms of RCR 7 of 2005 it is still the responsibilityof a Registrar of Deeds to check general powers ofattorney. The preamble of a power of attorney,consent or application, where a company or CloseCorporation is involved, must disclose whether theauthorization is in terms of a resolution or power ofattorney, without providing full particulars of theresolution.

Widely interpreted, one would immediately thinkthat this sub-regulation accepts that the personacting in such representative capacity has locusstandi, but Registrars of Deeds are of the opinionthat it is still the responsibility of the Registrar toascertain whether the representative is acting onbehalf of the correct institution (see RCR 23 of2005). How, unless informed thereof, this can bemonitored and governed, is a question begging ananswer. The question which can again be asked, adnauseum, is that of “who carries the respon-sibility?”

• Authorization of transaction

The preparer of a power of attorney, consent andapplication, in terms of regulation 44A(d)(ii)(bb),assumes responsibility that the transaction, asdisclosed in such power of attorney, consent orapplication, is authorized by and in accordance withthe constitution, regulations, or founding statementor trust instrument of a trust, as the case may be, ofany church, association, close corporation, society,trust or other body of persons, other than a

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company, excluding a share block company, beinga party to such document.

From this sub-regulation it is clear that theconveyancer must determine that the transaction isauthorized. Should this not also include theresponsibility to ascertain the locus standi of suchorganisation?

SUMMARY

From what has been said above, and the quotedConference Resolutions, it is quite evident that thewhole of regulation 44A must once again be reviewedto eradicate any uncertainty.

Your thoughts and comments will be appreciated.

Mr CN Nchunga, a formerattorney and magistrate,

has been appointed Registrar ofDeeds for Botswana and isstationed in Gaborone.

His academic record and career history are as follows:

ACADEMIC TRAINING

• 1970-1976 Primary School Kavimba, Obtained FirstClass

• 1977-1979 Three-year Junior Certificate, MaunSecondary School, Obtained Second Class

• 1980 -1981 Cambridge School Leaving Certificate,Obtained First Class

• 1982 Tirelo Setshaba [National Service] Etsha 13Village

• 1983 - 1985 LLB Part One University of Botswana• 1985 - 1987 LLB Part Two Edinburgh University,

Scotland• 1987/88 LLB Part Three University of Botswana• 2003/2004 LLM University of Cape Town• May 2005 Short course Balanced Score Card JBG

South Africa

CAREER HISTORY

• 1983 Senior Customs Assistant, Ministry ofFinance, Customs Department

• 1988 - 1989 Magistrate Grade Two• 1989 - 1993 Magistrate Grade One• 1993 - 1996 Senior Magistrate• 1996 - 1999 Principal State Counsel Two, Attorney

General’s Chambers Civil Division• 1999 - 2001 Principal State Counsel ONE Attorney

General’s Chambers Civil Division• 2005 Appointed Registrar of Deeds

The Department of Land Affairs congratulates MrNchunga on his appointment and we look forward toworking closely with him and his staff.

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New Registrarappointed inBotswana

Deeds registration course: Level VIIBy: Allen West – Deeds Training; PRETORIA

Front row, left to right: Allen West (Deputy Registrar:Deeds Training); Sydney Mekwe(Lecturer); Zandré Lombaard(Lecturer)Second row, left to right: OV Wade; PV Stephen; MM Malekele; J Olivier; HJ Dirkse van SchalkwykThird row, left to right: G Kanavathy; JP Dreyer; G Ramkillawan; PEJ Freeman; D Govender; MD BaipheleFourth row, left to right: LT du Pont; LJ Vosloo; MM Deetlefs; RW Petherbridge;CH Thiem; SB Mbatha

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Course on Sectional Titles in BotswanaBy: Allen West – Deeds Training, Pretoria

A functional course for senior officials of the various deeds registries was hosted by the Sub-Directorate: Deeds Training at JusticeCollege from 17 October 2005 to 21 October 2005.

All the course attendants agreed that the course was of great importance and that the knowledge obtained during the seminarwill be useful in practice. A warning to conveyancers – a breath of fresh air is sure to hit the offices!

The Sub-Directorate: Deeds Training presented acourse on Sectional Title Law to 15 staff members ofthe deeds registries in Gaborone and Francistownduring November and December 2005, in the DeedsRegistry in Gaborone.

Botswana adopted its Sectional Titles Act in 1999 (seeAct 7 of 1999). This Act is based on the South AfricanSectional Titles Act 95 of 1986, which facilitates thepresentation of courses on the Act.

Although no sectional title registers have as yet beenopened, the staff of the deeds registries are ready tohandle them when required. Over and above thetheoretical knowledge provided during the course,many of the staff members have also attendedpractical courses in the deeds registries of Pretoriaand Johannesburg.

From a lecturing perspective, it is always inspiring tolecture to the officials of the deeds registries inBotswana, in view of their eagerness to learn, theirdiscipline and diligence.

The qualification of servitudes and conditions onconsolidation of properties must be done correctlyfrom the outset because future subdivisions andsubsequent consolidations of the already consolidatedproperty become a nightmare if it is not initiallysimplified. Herewith an example to illustrate the above:

Erf 1 and 2 are subject to certain servitudes, which aredescribed as follows on the separate diagrams of theerven:

The figure ABCD represents Erf 1, ……

Servitude notes:1. The figure abcd represents a power stationservitude 3 sq metres in extent, registered byK243/2000S2. The line vw represents the northern boundary of a 2metre servitude for municipal services, registered byK169/2004SThe figure ABCD represents Erf 2, ……..

Servitude notes:1. The line xy represents the northern boundary of a 2metre servitude for municipal services, registered byK169/2004S

CONSOLIDATION:

The diagram of the consolidated Erf 1 and Erf 2 readsas follows:

1. The figure ABEF represents Erf 1, …2. The figure BCDE represents Erf 2, …

The figure ACDF represents Erf 100, 742 sq m inextent

Servitude notes: 1. The figure wxyz represents a power station

servitude 3 sq metres in extent, registered byK243/2000S

2. The line lmn represents the northern boundary of a2 metre wide servitude for municipal servicesregistered by K169/2004S

The conditions in the Certificate of Consolidated Titlewill, apart from other conditions, read as follows:

Erf 100, situated …………In extent 742 (seven hundred and forty two) squaremetresAs indicated on consolidated diagram no. SG ….

A. Subject to the following conditions: (noqualification)1. Subject to a servitude for municipal purposes, 2

metres wide, of which the northern boundary ofthe servitude is indicated by the line lmn ondiagram SG …. attached hereto, as will morefully appear from K169/2004S

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Qualification of servitudesBy Marie Grovè – Deeds Training, Pretoria

B The former Erf 1 indicated by the figure ABEF onthe consolidated diagram no SG…. is subject to thefollowing condition:

Subject to a power station servitude, 3 sq metresin extent as indicated by figure wxyz on diagramSG .. (consolidation diagram).. in favour ofESKOM as will more fully appear fromK243/2000S

IT MUST NOT BE COUCHED AS FOLLOWS AS THESERVITUDE FOR MUNICIPAL PURPOSES ISREPEATED:

A The former Erf 1 indicated by the figure ABEF onthe consolidated diagram no SG…. is subject to thefollowing condition:

1. Subject to a power station servitude, 3 sq metresin extent as indicated by figure wxyz on diagramSG ..(consolidation diagram).. in favour ofESKOM as will more fully appear fromK243/2000S.

2. Subject to a servitude for municipal purposes, 2metres wide, of which the northern boundary ofthe servitude is indicated by the line lm ondiagram SG …. attached hereto, as will morefully appear from K169/2004S

B The former Erf 2 indicated by the figure BCDE onthe consolidated diagram no SG…. is subject to thefollowing condition:

1. Subject to a servitude for municipal purposes, 2metres wide, of which the northern boundary ofthe servitude is indicated by the line mn ondiagram SG …. attached hereto, as will morefully appear from K169/2004S

The power station servitude is registered only inrespect of the previous Erf 1. It will therefore benecessary to qualify only that condition in theCertificate of Consolidated Title.

From the diagrams of the individual erven it is clearthat the servitude for municipal purposes is exactly thesame servitude registered in respect of both erven,because it is registered by means of the sameservitude deed, namely K169/2004S. As the entireconsolidated property is subject the same servitude,qualification is not necessary and the servitude shouldnot be qualified as it could only complicatequalification of conditions in future, as stated above.The less qualification used, the fewer problems could

arise, and especially when more erven or portions of afarm, for example, are consolidated. In such a casethe whole property is subject to the same conditionand no further qualification is necessary.

The example below is similar to that of a Certificate ofConsolidated Title that was lodged at the deedsregistry some time ago in respect of which variousportions of a farm were consolidated, as illustrated inthe example below. Each portion was qualifiedseparately, subject to the condition, which was exactlythe same condition. The qualification of all thoseportions extended over 2 pages, which wasunnecessary, as, at the end, the entire property wassubject to exactly the same condition (see figure).

The servitude xy must be described in respect of thewhole property, e.g. if the figure ABCD representedportion 20 of the consolidated farm, the condition mustbe set out as follows:

The property is subject to a 2 metre wide servitudefor ….. purposes in favour of ….., of which thecentre line is indicated by the line xy onconsolidated diagram no SG … attached hereto.

The above practice is related to the office of thePretoria Deeds Registry, but inputs from the otheroffices will be appreciated. - Editor

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The application of section 45(bis)(1A) of Act 47 of1937 in practice appears to be problematic andrequires further consideration. The current practice indeeds registries in respect of the section is to insist onendorsing the title deed of property which accrues toboth spouses who were formerly married in communityof property and who either divorced (section45bis(1A)(a)) or who were given an order or an orderand authorization in terms of section 20 or section21(1) of the Matrimonial Property Act of 1984 (section45bis(1A)(b)). This “award” as stated in the section isnormally on the basis that each spouse/former spousewill retain his or her half share in the property.

It is the view of deeds registries, on the basis of thedecision in Ex parte Menzies et Uxor 1993 (3) SA 799(C), that the endorsing of a deed in terms of section45bis(1A) of the Deeds Registries Act 47 of 1937 isnot a transfer but merely a factual endorsementindicating that the “tied” joint ownership of the twopersons has terminated and that they may deal withtheir separate shares independently. Also, that section3(1)(v) of the Deeds Registries Act 47 of 1937 couldjust as well have been applied. This is on all fours withthe judge’s arguments in the Menzies case. The judgestates on page 822 “…(a) because section 45bis(1A)is an enabling provision intended to allow spouses toobtain an endorsement without an order of court … (c)because the provision is essentially a procedural one…”.

It is interesting to note that the reason for the veryinteresting and, in my view, significant judgement froma conveyancing/deeds registration perspective, wasthe refusal of the acting Registrar to endorse titlesregistered in the name of the husband alone, in termsof section 3(1)(v) of the Deeds Registries Act 47 of1937. The acting Registrar was of the opinion that aformal transfer would be required in thecircumstances, which were as follows: namely that thetwo spouses applied for an order and authority toregister an antenuptial contract, in terms of section21(1) of Act 88 of 1984. They also asked the court foran order directing the Registrar to endorse the titledeeds of their properties in terms of section 3(1)(v) ofthe Deeds Registries Act 47 of 1937, as in their opinion(no doubt their legal counsel’s advice) no transfer ofproperty would be required, as they intended to retain

their one half shares each. The Registrar’s reportstated: “From a registration point of view, I am unableto give effect to paragraph (h) of the notice of motionas far as erf ….. (referring to properties registered inthe name of the husband alone) are concerned. Thesecond applicant, (i.e. the wife) is not a registeredowner of the said properties and her share in theproperties will have to be transferred to her by meansof a formal deed of transfer. In this regard, please referto sections 16 and 45bis of the Deeds Registries Act47 of 1937”.

It is also of interest to note that in the Cape TownDeeds Registry it is practice that where a title isregistered in the name of the husband alone (as persection 17(1) of the Deeds Registries Act 47 of 1937 atthat time), such title is endorsed with what is stillknown as the so-called “bastard section 45”. Thisoccurs when only the share in land belonging to adeceased husband, the registered owner, istransferred to his heirs. The alternative is to qualify thetransfer endorsement on the title (and this is done interms of section 3(1)(v)) that the remaining half sharebelongs to the surviving spouse and that she mayfreely deal with such half share. The Registrar’s reportwould seem to be in direct conflict with this practice,which quite clearly took cognizance of the fact that thewife of the “registered owner”, despite her name notbeing mentioned in the title deed, was vested with thedominium in one half share in the property.

The Deeds Registration Law Manual states in Chapter4 at 2.8.2(iv) on page 29 that inter alia a ratesclearance and transfer duty receipt must be lodgedwith an application to endorse a title in terms of section45bis(1A) of the Deeds Registries Act 47 of 1937. Thiswould appear to be incorrect if the view is correct thatan endorsement, in terms of section 45bis(1A) of theDeeds Registries Act 47 of 1937, is not a transfer ofland or a real right. The conference resolution onwhich the requirements for the lodging of a ratesclearance and a transfer duty receipt are based, refersspecifically to section 45(1) and 45bis of the DeedsRegistries Act 47 of 1937 and not to section 45bis(1A)of the Deeds Registries Act 47 of 1937. However, thatsection being part of section 45bis of the DeedsRegistries Act 47 of 1937, one must assume that it wasthe intention to include section 45bis(1A) of the DeedsRegistries Act 47 of 1937 in the decision. The Cape

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The application of Section 45(bis) Act 47of 1937 in the Deeds RegistriesBy: Dudley Lee – Deeds Registry, CAPE TOWN

Town Deeds Office is in agreement with the opinionthat an endorsement of a title in terms of section45bis(1A) of the Deeds Registries Act 47 of 1937 isnot a transfer, and the office calls for neither a ratesclearance certificate nor for a transfer duty receipt insuch cases. It is suggested that the deeds manual beamended in this regard.

In cases where the spouses each retain their halfshare in property owned by them upon dissolution ofthe community of property between them, there is noproblem of endorsing the title deed of such property interms of section 45bis(1A) of the Deeds Registries Act47 of 1937 and everything fits neatly into the boxcreated in the Menzies case.

One factor which can affect the situation severely is,however, not factored into this neat little sum. It mustbe clearly understood that nothing prevents spousesfrom agreeing, either upon divorce, or whenrequesting the court for an order under section 20 ofAct 88 of 1984, or an order and authorization undersection 21(1) of Act 88 of 1984, that one spouse willreceive a three quarter share in a property and that theother spouse will receive one quarter, or any othercomputation of shares they may agree upon. Note thatthe facts still fall completely within the ambit of section45bis(1A) of Act 47 of 1937.

In the case of divorce the judge also refers to theDivorce Act 70 of 1979 on page 815 at G and states:“It is open to the divorcing spouses … to arrive at asettlement in terms of which they could, for example,continue as co-owners of particular assets …” TheDeeds Registration Law Manual also, quite correctly,states in Chapter 4 at 2.8.2(ii) on page ………”In thecase of (a) supra (being reference to section45bis(1A)(a)) the court order and settlementagreement must be lodged”.

If spouses then agree not to retain equal shares,transfer duty implications must be taken into account,as one spouse is now acquiring a share of the otherspouse’s share. The property therefore still accrues toboth spouses in undivided shares as envisaged insection 45bis(1A)(a), but it can no longer be arguedthat this is now a mere factual endorsement. Is theendorsement of the title in terms of section 45bis(1A)now suddenly a transfer by endorsement?

Another school of thought is that it was the intention ofthe legislator that the section only refer to, and beapplicable to, the half share that each spouse ownedas a result of the marriage in community of property,and that the “respective shares” referred to at the end

of the section refers only to such half shares. Withrespect, this does not seem correct. This argumentpresumes a lack of knowledge on the part of thelegislator and it must be accepted that the legislatorwas quite aware of all the possibilities when draftingthe section. It may also amount to reading things intothe section. The “respective shares” can only be theshare that accrues to each spouse as envisaged insection 45bis(1A)(a) and must include shares otherthan half shares as well.

There can be no doubt that, should spouses agree toretaining shares other than a half share each, section16 of the Deeds Registries Act 47 of 1937 must apply.In other words a transfer of property must take place.It is a fact that half of the dominium vests in eachspouse who is party to a marriage in community ofproperty.

A “tied” joint ownership exists where the propertybelongs to two spouses married in community ofproperty, such as also exists in the case ofpartnerships and associations, for example, and this isdissolved when the community of property isdissolved. This happens upon the death of one or bothof the spouses, divorce, an order of division or achange in matrimonial property system in terms ofsection 21 of Act 88 of 1984. The judge in the Menziescase says on page 815 at H: “It is my view that whatdissolves is not the joint ownership or co-ownership ofthe spouses, but rather the “tie” restricting thatownership. There is simply a direct change from “tied”co-ownership to free co-ownership by the spouses inall the assets in the selfsame equal shares. Theseshares remain undivided but now become divisible atthe instance of either spouse …” The question asregards spouses retaining shares other than halfshares was not dealt with specifically in the Menziescase. In my opinion the statement above (“… there issimply a direct change … to free co-ownership in theselfsame equal shares …) must be seen in the light ofwhat Hahlo says in The South African Law of Husbandand Wife, 5th edition, and which is also quoted by thejudge in the Menzies case on page 815: “… eachspouse retains, subject to an order of forfeiture ofbenefits, his or her half share until division is effected”.However, the wording of section 45bis(1A) of theDeeds Registries Act 47 of 1937 as it stands does notexclude the case where spouses agree to retainshares other than half shares.

Section 45bis(1A) of the Deeds Registries Act 47 of1937 gives the Registrar the discretion to refuse suchan application (“…may, on written application …”endorse the title). The Court stated clearly in theMenzies case that section 45bis(1A) of the Deeds

9

Registries Act 47 of 1937 is an enabling provision andof a procedural nature only. Also, the need in such acase is different. Where each spouse retains a halfshare in the property, an endorsement in terms ofsection 45bis(1A) of the Deeds Registries Act 47 of1937 serves to give notice to the world that the “tied”co-ownership of the two spouses as set out in the titledeed has been dissolved and therefore serves only toget the title to the land to reflect the correct legalposition of the two owners vis-à-vis each other in thatregard. Where spouses, however, agree to retaindifferent shares in land, endorsement of the title interms of section 45bis(1A) of the Deeds Registries Act47 of 1937 will not amount to the mere noting on thetitle deed of the correct legal position as regardsownership in the property vis-à-vis the two spouses orformer spouses, who are reflected in the deed asbeing “tied” co-owners, but will involve the transfer ofa fraction of the share of one spouse to the other.

Should the Registrar refuse to allow endorsement ofthe title in terms of section 45bis(1A) of the DeedsRegistries Act 47 of 1937 in a case where spousesagree to retain shares other than half shares upondivorce or upon obtaining an order under section 20 ofAct 88 of 1984 or an order and authorization undersection 21(1) of Act 88 of 1984? Will a member of thepublic be able to insist on the endorsement of his/hertitle deed in terms of section 45bis(1A) of the DeedsRegistries Act 47 of 1937? The wording of the sectionas it stands does not exclude an endorsement in termsof section 45bis(1A) of the Deeds Registries Act 47 of1937 in the case where spouses agree to retainshares other than half shares as set out above, but inmy opinion the Registrar cannot entertain such anapplication and must insist on a formal transfer of theshare in the land.

Readers’ comments on the above will be appreciated- Editor

Lengthy orcomplicated conditionsBy: Allen West – Deeds Training, PRETORIA

Deeds controllers spend valuable time and energyendorsing deeds where the description of theservitude is lengthy or complicated. Few deedscontrollers and practitioners are aware that regulation62 of the Act provides that the Registrar of Deeds ispermitted to request the conveyancer executing thedeed of transfer to lodge an extract of the servitude,certified by the conveyancer, for annexure by theRegistrar to the deeds requiring endorsement.

The above practice will obviously save deedscontrollers time and energy and will also contribute tothe neatness of the deed. Also, where a condition islengthy or complicated, the transcription thereof doesnot always tell the whole story or gives a skewedimpression of the condition. However, a word ofwarning to deeds controllers: Don’t exploit thisregulation by requesting annexures of servitudes orconditions which are capable of being endorsedwithout much effort.

Where annexures are lodged, the following procedureshould be followed:

• Deeds controller endorses the deed as follows:

“The within mentioned property is subject to aservitude in favour of …………………. (describe thedominant tenement) which terms of the servitudeare set out in Annexure A attached to this deed.

As will more fully appear fromK………………………..”

• The annexure will be attached to the deed oftransfer as a separate page certified by theconveyancer and signed and dated by the Registraron execution.

The above practice should contribute to neater deedsand a lighter work load.

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Problem Statement:The Registrar of Deeds has been served with a caveatby the Surveyor-General stating that:

“on registration of the transfer of Portion 27 (of 24)of Erf 371, a sewer and drain servitude 2.50 metresand drain servitude 1.50 metres must be created.”

The Surveyor-General has approved diagrams forPortion 24 of Erf 371 and Portion 27 (of 24) of Erf 371,but neither of these land parcels has yet beenregistered in the Deeds Registry.

Background facts:The remaining extent of Erf 371 no longer exists. It hasbeen consolidated with Portion 21 of Erf 337 to formErf 3381.

The remainder of Erf 3381 was, in turn, consolidatedwith Portion 6 of Erf 3381 to form Portion 7 of Erf 3381.

Question:How and where should the caveat be noted on theDeeds Registration System database?

Answer:The very nature of the caveat, i.e. that a servitudemust be registered upon subdivision of a piece of land,implies that the object of the caveat, Portion 27 (of 24)of Erf 371, is not yet registered in the Deeds Registry.Upon investigation in the Deeds Registry’s records,this was indeed found to be the case.

The next logical step would then have been to note thecaveat against the immediate “parent” property, i.e.Portion 24 of Erf 371. However, this was not possibleas it was found that this property was also notregistered.

11

Course for third-yearstudents in the NationalDiploma in DeedsRegistration LawBy: A S West – Deeds Training, PRETORIA

The Sub-Directorate: Deeds Training hosted a coursefor third-year students enrolled for the NationalDiploma in Deeds Registration Law at Justice Collegefrom 22 August 2005 to 31 August 2005.

The course was attended by 12 students from thedeeds registries of Cape Town, Bloemfontein, Vryburg,Pretoria and Botswana.

Lectures were presented by lecturers of Unisa andDeeds Training.

During the course closure, the class representative,Motudu Malatsi, thanked the lecturers for their hardwork and dedication and wished his fellow studentsGodspeed with their studies.

Given Gabara was presented with the prize for thestudent who excelled in the test series.

Noting a caveatapplicable to anunregistered landparcel in a deedsregistry’s recordsBy: Gert Hattingh – Office of th Chief Registrar of Deeds

Again, the logical step would be to note the caveatagainst the parent of Portion 24, i.e. Erf 371. However,(and this is where the problem starts) Erf 371 nolonger exists, Deeds Registry records show it hadpreviously been consolidated.

At this point, one may ask the question: If Erf 371 nolonger exists, how can it be that an (apparent) directsubdivision of that Erf (i.e. Portion 24 of Erf 371) canstill come into being? This would be tantamount tosaying that a “grand-parent” (Erf 371) gave birth to a“child” (Portion 24) and even produced a “grand-child”(Portion 27), after death. This scenario is asimpossible in registration terms as it is in real life.

What is an indisputable fact, however, is that bothPortions 24 and 27 owe their existence to Erf 371.Somewhere along the line, they “descended” from Erf371, if not directly, then by virtue of some otherintermediate registrations.

We therefore have to look elsewhere for the solution.There are basically three options remaining. Theseare:

Portion 24 of 371 may be a consolidation of two ormore other Portions of Erf 371

Example:Portion 22 of Erf 371 and Portion 23 of Erf 371(deducted from Erf 371 while it was still “alive”), maystill have to be consolidated to form Portion 24 of Erf371. While a consolidated diagram for Portion 24 mayalready be approved, the CCT is not yet registered; or

Portion 24 may be a subdivision of an existingsubdivision of Erf 371.

Example:Portion 24 may be an unregistered Portion of anexisting Portion (let’s say Portion 23) of Erf 371, i.e.“Portion 24 (of Portion 23) of Erf 371”. That means thatthe description of Portion 27 (a subdivision of Portion24) would, in accordance with the Surveyor-General’sconvention for property descriptions, only include oneprevious level, i.e. Portion 24.

Portion 27 would therefore be described as “Portion 27(of 24) of Erf 371”, without any reference to the“intermediate parent”, i.e. Portion 23; or

Portion 24 should have been deducted from theremainder of Erf 371 before it (remainder of Erf 371)was consolidated, but this was overlooked by theRegistrar of Deeds. This is a fundamental error in

registration which may require an Order of Court torectify.

Conclusion:As far as the noting of the caveat is concerned, wehave established the following beyond doubt:

The caveat cannot be recorded against the remainderof Portion 27 (of 24) of Erf 371, or against Portion 24of Erf 371, or against the remainder of Erf 371. Noneof these properties exists and we cannot note a caveatagainst a non-existent land parcel.

The only solution is to interrogate the Surveyor-General’s records in order to positively establish the“parentage” of Portion 27. This information cannot beassumed or obtained from the Deeds Registry’srecords.

Once the “family tree” of Portion 27 (of 24) of Erf 371has been established, the lineage must be tracedupwards (back) and the caveat must be noted againstthe first registered property or properties in that line. If,as suggested above, a consolidation of properties hasyet to take place, the caveat must be noted against allcomponents of such consolidation.

The noting of the caveat, even against the correctlyregistered property(ies) at this point, will serve nopurpose if it is not correctly brought forward duringsubsequent dealings with those properties. DeedsRegistry examiners must interrogate and note thepurpose of each and every caveat they come across,understand the reason for it and anticipate theconsequences if it is not dealt with or taken forwardcorrectly.

The deliberations and conclusions above are basedon one of the fundamental principles of a DeedsRegistry’s land register, namely that it should reflectonly “registered” properties. Deeds Registry staff oftensuccumb to the temptation to “create” a “dummyproperty” for the purposes of noting a caveat against aland parcel which does not yet exist. This practiceshould be condemned in the strongest possible terms.By harbouring fictitious properties we are not onlydiminishing the integrity of our registers, we are alsomisleading our clients.

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Unlike the Companies Act, 61 of 1973, the TrustProperty Control Act, 57 of 1988, does not provide forthe change of name of a trust. Section 93 of the DeedsRegistries Act, 47 of 1937, however, does provide themechanism to record the change of name of a personor partnership. In terms of section 2 of the DeedsRegistries Amendment Act, 9 of 2003, a definition of“person” was included in the Deeds Registries Act,defining a trust as a person. In view of this definition,the Conference of Registrars in 2004 ruled that theprovisions of section 93 of the Deeds Registries Actcan be invoked to record the change of name of a trust(see RCR 13 of 2004). However, the change of namewill only be allowed where proof from the Master of theHigh Court is provided as to the new name of the trustas well as the trust’s previous name. The merelodgement of the new letters of authorization, issued interms of section 6 of the Trust Property Control Act, willnot suffice for recording the change of name.

Except for the Conference resolution, it is stillmaintained that there is no enabling legislationsanctioning the change of name of a trust. It issubmitted that the Trust Property Control Act shouldbe amended to cater for this occurrence.

Readers’ opinions on the above will be appreciated.

I am a British citizen and recently had the pleasure of

travelling to South Africa on a well deserved break from my

professional duties. An acquaintance gave me a copy of the

previous edition of the SADJ, since conveyancing forms part

of my professional duties and interests. Once I read the one

edition, I simply had to peruse all previous issues.

Congratulations on a brilliant concept. The journal is well

planned and has the potential to grow into a pillar for its

readers. Only a few issues old and already the SADJ has

grown strong and popular among its readers from what I

could tell during my stay.

I do have a concern however, if you will permit me. There

seems to be a lack in the variety of contributors. What exactly

the nature of the internal arrangements for the publication is,

I am obviously unfamiliar with. Pardon me if I am stepping on

toes, but I found it odd that the editorial committee consists of

quite a number of people, yet only a few members seem to

contribute articles. I suppose these silent members are

involved with duties behind the stage curtains?

It would be lovely to see contributions from the private sector!

Like the UK, South Africa is a rather small country. For this

reason it would be marvellous if all and sundry from both the

public and private sector involved with conveyancing and

registration matters would combine and share their expertise.

The SADJ potentially enables us to exponentially develop

and support the shared intellectual cauldron in which we fuse

ingredients for a scrumptious soup of intellectual and

practical excellence.

South Africans have fought a bitter battle to attain democracy.

It seems a waste that a pioneering mouthpiece like the SADJ

exists, yet so few people seem to actively participate in it.

As an outsider I urgently appeal to everyone reading this

journal to ask yourself: how can you pro-actively contribute to

the further development and support of this unique

publication? The SADJ is a vibrant testament of the long way

the public service, especially the deeds registry, has come in

transforming from an alleged inaccessible maze of

bureaucracy into a professional service provider, affording all

stakeholders a medium to air their views, ideas and concerns

without the risk of being reprimanded for daring to have an

own opinion! Brilliant! Do not force this bright, talented new

kid on the block to become yet another stray child, left and

forgotten in a cold indifferent world!

May the editor and his team continue their effort and may

their diligence, loyalty and dedication ensure a long and

prosperous life for the SADJ. I am convinced that the

conveyancing sphere in South Africa will sorely miss the

journal, if it ever had to disappear.

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Change of name oftrustsBy: A S West – Deeds Training, PRETORIA

Letter to the EditorBy: A S Simms – Birmingham, UNITED KINGDOM

New Registrar forMpuamalangaBy: A S West – Deeds Training, PRETORIA

Mr Lenthiss du Pont has

been appointed as Registrar

of Deeds for the Nelspruit

office. The office is not yet

functioning, and Mr du Pont

will thus be stationed in

Pretoria to handle logistical

matters until it is opened.

This article does not do

justice to the appointment of

Mr du Pont or the new office,

but will be followed up by a

comprehensive article in the

next issue.

14

Modern technology brought the world to theindividual – spacious enough to accommodate

numerous countries each with its own legislationgoverning millions of souls dwelling on earth, yetconcise enough to fit into 17 inches on a monitor.

With modern means of transportation, boundarieshave been shrunk; yesterday's world has becometoday's shopping mall; concepts such as travel, timeand distance have been transformed. The charm ofadventure has been redesigned, materialising in thereality of an early breakfast in Cape Town (SouthAfrica) followed by shopping in London (England) anda late business dinner in Paris (France), celebrating,and signing the documents for the sale of amultimillion rand property in Sandton (South Africa).

The dramatic increase in documentation signed incountries other than South Africa silently testifies tothe trend of globalisation and people unafraid ofleaving their homeland for greener pastures. From aconveyancing and registration perspective,documents signed abroad to be used for acts ofregistration in South Africa quite often cause confusionand frustration for conveyancers and deeds examinersalike.

The traditional common law maxim acta probant seseipsa (documents prove themselves) applies to theSouth African legal system. Furthermore, legislationprescribes the formalities for the legally valid execution(signing) and attestation (witnessing) of documen-tation when signed in South Africa. However, it standsto reason that the said maxim cannot be applied inrespect of a document which has been executedabroad for use in South Africa, without grossly andperhaps even unfairly burdening the person bearingthe responsibility for judging the authenticity of thedocument merely on sight value. In order tocircumvent this problem the High Court Act 59 of 1959prescribes in Rule 63 of the High Court Rules of Court(hereafter referred to as r63) the formalities to becomplied with regarding documents which have beensigned outside of South Africa.

Like South Africa, other countries also have legalsystems prescribing formalities which must be

complied with regarding such documents. It is to beanticipated that the inherent diversity of different legalsystems has resulted in a complicated chain ofauthentication procedures, constituting it its entiretythe legalisation of foreign documents (foreigndocuments to be interpreted as documents signedoutside the borders of a country for use within suchcountry). By means of The Hague Convention of 5October 1961 Abolishing the Requirement ofLegalisation for Foreign Public Documents (alsoknown as “The Apostille Convention”, but hereafterreferred to as the Convention), a basic simplification ofthe rigorous series of formalities was brought about.

The Convention reduced the formalities of legalisationto the simple delivery of a certificate in a prescribedform, called "Apostille" (French), by the authorities ofthe state where the document originates. Article 2 ofthe Convention provides that, for the purposes of theConvention, legalisation means only the formality bywhich the diplomatic or consular agents of the countryin which the document has to be produced, certify:• the authenticity of the signature, and• the capacity in which the person signing the

document has acted, and• where appropriate, the identity of the seal or

stamp which it bears.

The only formality that may be required in order tocertify the authenticity of the signature, the capacity inwhich the person signing the document has acted and,where appropriate, the identity of the seal or stampwhich it bears, is the addition of the apostille(certificate) described in article 4, issued by thecompetent authority of the state from which thedocument emanates. Accordingly, the apostille doesnot relate to the content of the underlying documentitself.

The Convention was concluded on 5 October 1961and came into force on 24 January 1965. The date ofthe official accession of South Africa as a memberstate of the Convention, however, is 3 August 1994and its membership came into force on 30 April 1995as publicly notified by Department of Justice Notice773/1995 published in Government Gazette 16609/18-8-1995.

Authentication of documents:Rule 63 vs the Hague “Apostille” ConventionBy: Alexandré Lombaard – Deeds Training, Pretoria

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With both the procedures / formalities as prescribedrespectively by the r63 and the Convention, thepractical question of which route is to be followed forauthenticating foreign documents has all the potentialof a headache evolving into a migraine – for those inthe private sector involved with conveyancing as wellas the officials involved with the registration of deeds.To ensure a lasting migraine, practical experienceshown that strict compliance with either of theprocedures is rather the exception than the rule.

Nine deeds registries and no uniform practice in thisregard surely can only contribute to the uncertainty.Attempting to curb the ever present predicament inwhich conveyancers and deeds examiners findthemselves, registrars of deeds have been ponderingthe matter from as long ago as 1954. In 1954registrars of deeds deemed the issue of acceptableways of authenticating documents problematic enoughto be debated at the Registrars' Conference.

In 1979 the matter was again presented for discussionand a resolution. And just to prove how contentious theissue is, it was yet again discussed at the Registrars'Conference of 2005, resulting in the latest Registrars'Conference Resolution on this matter, RCR 6/2005.

The Conference was approached with a scenario inwhich a power of attorney executed in a foreigncountry by the grantor and attested by two witnessesin the presence of a notary practising in that foreigncountry, did not bear the certificate specified inr63(2)(d). The notary merely attested his/her signatureand seal of office to the power of attorney. Thequestion was raised whether this power of attorneyshould be accepted by the registrar of deeds forregistration purposes. The Conference resolved thatthe registrar of deeds has in terms of r63(4) thediscretion to accept the authentication.

It is submitted that the resolution could hardly havebeen phrased differently. Rule 63(4) is clear inaffording the registrar of deeds such discretionarypowers. The problem is that the resolution does notexactly contribute to eradicating the practical problemsthat conveyancers are faced with when documentslodged are rejected based upon non-compliance withthe formalities of authentication. In the period May to July 2004, the Office of the ChiefRegistrar of Deeds was approached with a similarscenario. According to the written documentation onthe matter, a registrar of deeds allegedly declinedacceptance of a power of attorney that did not strictlymeet the requirements prescribed in r63(2)(a) to (f).The conveyancer concerned consequently resorted tothe Chief Registrar of Deeds for a decision as to the

applicability of r63(4). The power of attorney wassigned in Germany and the signatories were identifiedby a notary public. It was therefore claimed that thenotary public had duly authenticated the document –and if not, then still surely the registrar could exercisethe discretion afforded in r63(4) in such a way as toaccept the power of attorney. The Office of the ChiefRegistrar of Deeds responded that:

… It must be pointed out that refusing to acceptdocuments is part of exercising the said discretionand cannot be equated to refusal to exercise thediscretion …

Furthermore the conveyancer argued that:… certificates issued by notaries will be acceptedwithout query by our courts and should thereforealso be accepted by officers in charge of publicoffices.

The response by the Office of the Chief Registrar ofDeeds referred to the provision of r63(2)(e) with theviewpoint that the said provision "… limits theauthentication to notaries of the countries mentionedtherein."

From the above scenarios the following ought to beeminent:• A registrar of deeds undeniably has the

discretionary power to accept or decline adocument that had to be authenticated, but in factdoes not meet the formalities as prescribed.

• The said discretionary power is to be exercisedautonomously by each individual registrar of deeds.

• Refusal to accept documents is part of exercisingthe said discretion and cannot be equated to refusalto exercise the discretion.

• Although the office of notary public is recognised asof special nature and held in the highest esteem,authentication of documents by notaries practisingoutside of South Africa may only be accepted asprovided for in r63(2)(e), i.e. it applies only tonotaries in the countries as specified in r63(2)(e).

Therefore, conveyancers (and deeds examiners) areurged to acquaint themselves with the exact procedureand formalities to be followed with regard to theauthentication of foreign documents.

In order to strictly comply with the prescribedformalities, it is advised that the following be borne inmind:• Without any further authentication, a notary

public may authenticate documents executed inthe following countries only:- Botswana

- The United Kingdom of Great Britain andNorthern Ireland

- Lesotho- Swaziland- Zimbabwe

In this instance the signatories should execute thedocument; no attestation by witnesses is required(RCR 16/2003); and a notary public may authenticatethe document by identifying the signatories, andaffixing his/her signature and seal of office to thedocument. No further authentication is needed forsuch documents. The last paragraph of ChiefRegistrar’s Circular CRC 8/1978, dated 13 December1978, unequivocally confirms this:The certificate referred to in paragraph (d) of rule 63(2)does not, therefore, apply to a documentauthenticated by a notary public in the countriesnamed in paragraph 63(2)(e).

• If a document has been executed in any othercountry than the above-listed, either theprocedure prescribed in r63 may be followed, or theformalities prescribed by the Convention.

• The applicability of the Convention route,however, is limited in two ways, namely:- Both countries must be members of the

Convention. Therefore, the country in which thedocument has been signed must also be aConvention member state. Since states may stillbe afforded membership, and membership maybe terminated, the inclusion of a list of memberstates is deemed inappropriate (it could bemisleading) and rather impracticable. However,an updated list of member states may beobtained from the official website of The HagueConvention: http://www.hcch.net. It is advisedthat, whenever confronted with a foreigndocument, the list available on the website isaccessed for purposes of determining whetherthe country concerned is (still) a member state,rather than trying to memorise the list of memberstates or keeping such list filed as hard copy.

- The second paragraph of article 3 of theConvention provides that the formalitiesprescribed by the Convention cannot berequired when either the laws, regulations, orpractice in force in the state where thedocument is produced or an agreementbetween two or more Contracting States haveabolished or simplified it, or exempt thedocument itself from legalisation (authentica-tion). In such instance the procedure of r63 mustbe followed.

As practical elucidation of the said restrictions, thefollowing examples are used:1. A power of attorney was executed in Gaborone,

Botswana, by the signatories and attested by anotary public who affixed his/her signature and sealof office to the document, duly identifying thesignatories. If the Convention route had to befollowed, further authentication in respect of thenotary public’s signature and capacity would still berequired. However, in terms of r63(2)(e), no suchfurther authentication is required. Therefore, theConvention route may not be followed and thepower of attorney must be deemed as dulyauthenticated.

2. A power of attorney was executed in New York,USA, by the signatories and attested by a notarypublic who affixed his/her signature and seal ofoffice to the document, duly identifying thesignatories. R63(2)(e) does not apply, since theUnited States of America is not one of thecountries/states listed in said paragraph. Therefore,further authentication is still required in order torender the power of attorney as duly authenticatedfor use in South Africa. In order to determinewhether the r63-route must be followed, or whetherthe Convention route may be followed, it must bedetermined whether the United States of America isa member state of the Convention. If not, theConvention route may not be followed and r63 mustbe applied.

• Authentication in terms of r63 (other thanspecified in r63(2)(e)) entails the following:• The document must be signed by the signatories;

• No attestation by witnesses is required (RCR16/2003);

• Authentication of the document by means of acertificate attached to the document, whichcertificate must be issued and signed by, andbear the seal of office of, any of the following:

– The head of the South African diplomatic orconsular mission; or

– a person in the administrative or professionaldivision of the public service serving in aSouth African diplomatic, consular or tradeoffice abroad; or

– any Government authority of such countrycharged with the authentication ofdocuments under the law of such country; or

16

– the consul-general, consul, vice-consul orconsular agent of the United Kingdom.

• Authentication in terms of the Conventionentails the following:• The document (including notarial deeds /

documents attested by a notary public – as perarticle 1 of the Convention) must be signed bythe signatories;

• No attestation by witnesses is required (RCR16/2003);

• Authentication of the document by means of anapostille appearing on, or attached to, thedocument, which apostille: – must comply with the model annexed to the

Convention (as prescribed by articles 4 and5 of the Convention), but

– may be drawn up in the official language ofthe authority which issues it;

– bear the title "Apostille (convention de LeHaye du 5 Octobre 1961)" in the Frenchlanguage;

– be in the form of a square with sides at least9cm long;

– be issued and signed by, and bearing theseal of office of, any of the following: – any magistrate or additional magistrate;

or– any registrar or assistant registrar of the

High Court of South Africa; or – any person designated by the Director-

General: Justice.

With modern technology evolving without simulta-neoustransformation of legislation and legal systems, lawpractitioners are being left out in the cold. Withlegislation and legal systems left unchanged andapparently unable to accommodate the behaviour of thepeople they should govern, the only remedy apt forclarifying the confusion and frustration is merelyensuring that documents to be used in the legal systemcomply with the ruling prescriptions. Registrars’Conference Resolutions and/or registrars exercisingdiscretion should not solely be depended on.

17

Example of the certificate of authentication in termsof r63

Example of the Apostille in terms of the Convention

18

It is submitted that the provisions of section 4(1)(b) of the Deeds Registries Act, 47 of 1937 are being misused and abused.Nobody can claim that he/she does not err, but the number of errors presently occurring in deeds and documents is ridiculous.If one keeps in mind that conveyancers are paid a fee to perform their task, the deeds office is paid a registration fee, andgovernment levies a tax for the acquisition of immovable property, errors in deeds and documents should be minimal.

That the registered owner of immovable property held under a title deed in which a registration error occurs, must onrectification of the error again pay the conveyancer a fee, and the registrar of deeds a further registration fee, boggles the mind.It is submitted that the conveyancing fraternity is the only business in which the more mistakes are made, the more income isgenerated. Shouldn’t these registration errors be corrected free of charge, given the fact that the first time round, fees were paidfor a correct deed? Don’t clients obtain any guarantee from the profession or the deeds office, similar to that received whenbuying a car? What is your opinion in this regard?

Furthermore, the affidavits for the rectification of errors would appear not to be the appropriate document to rectify an error. Ithas previously occurred that in one deed, the status of the parties was changed three times, on three different occasions, eachtime by making an oath as to the true and correct state of affairs.

Section 4(1)(a) of the Deeds Registries Act, 47 of 1937, allows a registrar of deeds to require proof of any fact. Given thisprovision, conveyancers should be urged to lodge the identity document, marriage certificates, etc to prove the correct state ofaffairs.

Whether the rectification in terms of section 4(1)(b) has the effect of transferring a real right, is something that will be addressedat a later stage in this journal.

Application of Section 4(1)(b)By: A S West – Deeds Training, PRETORIA

Some of the resolutions of the Registrars’ Conference of 2005 are discussed in this article, and the attention of readers is drawnto a Chief Registrar’s Circular that deals with the coming-into-effect of Registrars’ Conference resolutions. Each resolution willbe quoted in full and then followed by a discussion. The views expressed herein are personal and should not, whatsoever, beascribed to the Office of the Chief Registrar of Deeds.

2/2005 (RCR 8/1951) – Section 57 of Act No. 37 of 1947 – Substitution of surviving spouseDoes section 57 of Act No. 47 of 1937 apply where spouses were married in community of property?

Resolution:A surviving spouse may be substituted under section 57 of Act No. 47 of 1937 as debtor when he/she acquires property fromthe estate of his/her deceased spouse, whether he/she was married out of community, or in respect of marriages in communityof property where the share of the deceased spouse is transferred by a formal deed of transfer. (RCR 8/1951 has beenwithdrawn).

This resolution came about as a result of a practice of combining a section 45 of the Deeds Registries Act (DRA) applicationwith a section 57 (DRA) application. Its effect is, therefore, to put an end to such practice. That a section 57 (DRA) applicationcannot, and should not, be made in conjunction with a section 45 (DRA) application can be gleaned from subsection 2(a) of

A brief overview in respect of recentregistrats’ conference resolutionsBy: George Tsotetsi – Office of the Chief Registrar of Deeds

section 57 (DRA). The said subsection reads asfollows:

“In registering the transfer in terms of subsection (1)the registrar shall—(a) endorse upon the deed of transfer that the land

has been transferred subject to the bond;”

15/2005 (RCR22/1987 and RCR21/2004) –Divorce OrdersWhere the status of parties married out of communityof property or whose marriage is governed by the lawsof a foreign country have changed due to divorce, thedivorce court order must be lodged to determinewhether the rights of third parties are being affected.However, if the spouse has died, must the deathnotice/certificate be lodged to prove that the spousehas died and that divorce did not occur?

Resolution:No. A certificate from the conveyancer will suffice.

This resolution is an amplification of RCR 21/2004,and thus the two resolutions must be read inconjunction with one another. Thus if a party who wasmarried out of community of property or whosemarriage was governed by the laws of a foreigncountry is later described as unmarried, an examinerwould not know whether the relevant marriage wasdissolved by divorce or by the death of the formerspouse. A note along the lines of the note below wouldthus be appropriate in this instance.

“If the relevant marriage was dissolved by death,then certify accordingly; if, however, it wasdissolved by divorce, then lodge the relevant CourtOrder and consider the matter as having beenrejected. In this regard see RCR 21/ 2004 read withRCR 15/2005”

16/2005 Sections 3(1)(v) and 93Where an owner of immovable property undergoes asex change and changes his/her names subsequentthereto and a new identity number is afforded suchowner, how must the new identity number be recordedagainst the title deeds of the immovable propertyconcerned?

Resolution:Section 93(1) of Act No. 47 of 1937 cannot be invoked.The provisions of section 3(1)(v) of Act No. 47 of 1937must be invoked and documentary evidence as to thenew identity must be lodged together with theapplication.This resolution has been included solely for the

purposes of commending Conference for beingproactive and being receptive to the new practices thathave taken root in the country.

19/2005 Section 57Is the consent of the co-mortgagor necessary withsubstitution in terms of section 57 of Act No. 47 of1937?

Resolution:Yes, the consent is necessary and all the relevant legalexceptions must be renounced.

Section 57 (DRA) has consistently been applied by thedeeds registries in circumstances where a bond hasbeen passed by more than one mortgagor. In thisregard see RCR 7/1994. RCR19/2005 moves from thepremise that the said application is correct. Thecorrectness of this application is, however,questionable. If the legislature intended that thesection should so apply, it would have expressly dealtwith the position of co-mortgagors. There is nothing inthe section that indicates that it is also applicable incircumstances where a bond has been passed bymore than one mortgagor. It is submitted that where aco-mortgagor transfers her/his share in the relevantproperty, the appropriate procedure is to release thesaid co-mortgagor as contemplated in section 55(DRA) and not to invoke the provisions of section 57(DRA) as postulated in RCR 7/1994.

The argument here is: what is the value of substitutinga person who is already a mortgagor as a mortgagor?Furthermore, in terms of RCR 7/1994, section 57 canbe applied in instances where a person hastransferred a share to another. The question then is:can this really be referred to as substitution of a debtoror an addition of a co-debtor? My understanding of theword ‘substitute’ is that in substitution one takes theplace of the other and the other disappears from thepicture altogether.

It must also be noted that section 3(1)(g) (DRA) doesmake a distinction between a joint debtor and a debtor.In so far as a joint debtor is concerned it deals with theaspect of release and in so far as a debtor isconcerned, it deals with the aspect of substitution. It isimportant to note that this section makes no mention ofthe substitution of a joint debtor. It is submitted that ifthe legislature intended that a joint debtor should besubstituted, then it would have expressly stated so insection 3(1)(g). Those who, however, take the view that the legislatureintended section 57 (DRA) to find application in theinstances referred to above are requested to prove thesame.

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29/2005 Divesting in deceased estatesMust the deceased estate or the executor of suchestate be divested in the divesting clause of estatetransfers?

Resolution:The deceased estate must be divested in terms ofregulation 50(2)(c) of Act No. 47 of 1937.

The correctness of the use of regulation 50(2)(c) of ActNo. 47 of 1937 as a justification for the resolution isquestionable. The said regulation deals with jointestates in particular and not estates in general. FormE (DRA), however, provides a basis that covers allestates. In terms of this form, the transferor must bedivested. The question that arises is that of who thetransferor is in an estate? In view of the fact that anexecutor is, in terms of the decision in Grobbelaar vsGrobbelaar 1959 (4) SA 719 (A) at 724, only “arepresentative”, it is clear that an executor can neverbe the transferor. It is therefore clear that the estatewill always be the transferor and it is the one that mustbe divested in its capacity as transferor as postulatedin Form E.

33/2005 Long leases A long lease was duly executed by a lessor and lesseeand attested by a notary. Before registration of thelease took place, ownership of the property changed.Can the lease still be registered against the title deedof the new owner?

Resolution:Yes it can be registered. Section 77 of Act No. 47 of1937 stipulates that any lease intended or required tobe registered in a deeds registry shall be executed bythe lessor and the lessee and shall be attested by aNotary Public.

The section refers to “lessor” not “owner”. The maxim“Huur gaat voor koop” applies. It will, however, benecessary to lodge the new owner’s consent thathe/she knew of the lease should the lease be for aperiod of longer than 10 years (see Section 1 (2) of theFormalities in Respect of Leases of Land Act No. 18 of1969)).

It is clear from the resolution that the co-operation ofthe registered owner of the immovable propertyconcerned is unnecessary for the registration of ashort-term lease. It must, however, be borne in mindthat, in terms of regulation 63(2) (DRA), the title deedof the immovable property concerned mustaccompany the relevant notarial deed. In most casesthe said title deed would be in the possession of theregistered owner. What would then happen if the saidregistered owner refused to hand it over for thepurposes of the registration of the lease concerned? Itis suggested that in such cases it would suffice if thenotary concerned certified that she/he had beenunable to obtain the title deed concerned, and thenormal procedures that are applicable where no titledeed has been lodged should be followed.

44/2005 Cession of section 25 real rightand substitution The developer reserved the real right to extension ofthe sectional title scheme as provided for in section25(1) of Act No. 95 of 1986. Subsequent to registrationof the reservation and issuing of the certificate of realright of extension of the scheme, the developerpassed a sectional mortgage bond over the right. If thedeveloper now intends to cede the whole of the saidright, may a substitution of debtor be registeredsimultaneously with the intended cession in respect ofthe said sectional mortgage bond?

Resolution:The substitution is not registerable because section 57of Act No. 47 of 1937 is only applicable to thesubstitution of a bond over land.

Substitution of a debtor in terms of section 57 (DRA)is, indeed, a cost effective procedure. Conference hason two occasions resolved on the applicability of thesaid procedure in respect of circumstances relating tothe substitution of a joint debtor as well. In this regardsee RCR 7/1994 and RCR 19/2005. (See also thediscussion of RCR 19/2005 above.) It is indeed truethat section 57 of Act No. 47 of 1937 refers only to thesubstitution in respect of a bond over land and that aright of extension is not land, but a right in immovableproperty (see section 25(4) Act 95 of 1986).

The resolution is technically correct, but it isdiametrically not in line with what happens in practice.In practice, substitutions in respect of bonds overleaseholds, which are not land but immovableproperty, are registered. Again, substitutions in respectof sectional bonds over units together with exclusive

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use areas are also registered, yet exclusive use areasare rights to immovable property and not land.

47/2005 Section 25 (10) (dA) (iii) –lapsing of right of extensionThis section stipulates, if applicable, that thebondholder’s consent must inter alia state that thebond is attached to the certificate of real right inrespect of the remainder of the right reserved in termsof section 25 (1) of Act No. 95 of 1986. Is it the responsibility of the deeds registries to checkwhether the right of extension has lapsed as all thephases envisaged have been completed, and to askfor the cancellation of the Right of Extension?

Resolution:Yes, it is the responsibility of the registrar of deeds tocheck the Certificate of Real Right of Extension and tocompare it with the section 25(2)(a) plans to determinewhether a right of extension has been exhausted ornot. The registrar of deeds must insist on thecancellation of the right of extension where such righthas been exhausted.

The principle, i.e. the determination of the lapsing, orotherwise, of a right of extension as postulated in theresolution, is a sound one. Indeed, why should abondholder’s consent relate to a right of extension thathas lapsed? It must be noted that a right of extensioncan lapse only in two instances, namely by theeffluxion of time or the registration of all the sections towhich it relates.

However, comparing the Certificate of Real Right ofExtension with the section 25(2)(a) plans, assuggested in the resolution, is not the appropriatemanner of determining the relevant fact. The certificateand the plans do not contain the same information,and comparing the two is not necessary. For example,the certificate invariably relates to the time withinwhich the relevant extension must be completed andnot to the number of the sections when phaseddevelopment is completed. On the other hand, theplans would normally indicate the number of sectionswhen phased development is completed, and wouldnot indicate the time period within which phaseddevelopment must be completed. Thus the purpose ofchecking these documents cannot be for the sake ofcomparison. Each document would thus be checkedfor what it is worth and not for comparison purposes.In short, the manner in which the resolution is coucheddoes not reflect what the conference really intended. Itmust also be noted that it is not always possible to

determine the number of all the sections from asection 25(2)(a) plan. A schedule referred to in section25(2)(c) would be helpful in determining whether or nota right of extension has lapsed. Experience has taughtme, however, that the said section is not strictlyenforced in a certain deeds registry.

Whether or not my interpretation of the resolution, ingeneral, and the word ‘compare’, in particular, is toonarrow, is for the reader to decide.

Lastly the attention of readers is drawn to ChiefRegistrar’s Circular 16/2005, which states thatConference Resolutions will be effective from 2January of the year following the year of Conference.This circular is intended to create certainty on whenConference Resolutions become operative, and willafford all parties concerned ample time to acquaintthemselves with the resolutions before they becomeoperative.

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INTRODUCTION

The present paper system is successful to the extentthat it provides security of title and is accurate. It doesafford protection for registered rights, gives notice tothe public of such protection and provides an easilyaccessible record should disputes arise. The successof the present system can be ascribed to soundlegislation such as the Land Survey Act, No 8 of 1997,the Deeds Registries Act No. 47 of 1937 and theSectional Titles Act No. 95 of 1986. It is one thing to beblessed with sound legislation, but another matter toapply it properly. The healthy interaction between theprivate sector (the conveyancers) and public sector(the Deeds Office examiners) ensures the properapplication of the complex legislation relating to landregistration and land related matters. The challengenow lies in effecting speedier and more cost-effectiveland delivery through technology without detractingfrom the accuracy and security of title enjoyed by theSouth African public at present.

OPTIONS

From a legal perspective we recommend that theresponsibility for the legal validity of titles should bethe basis for an options analysis. The present systemprovides for a division of these responsibilitiesbetween the Registrar of Deeds and the conveyancingprofession. In recent years, and especially since theintroduction of Section 15A of the Deeds RegistriesAct, 1937 and the Sectional Titles Act, 1986, theresponsibilities of the conveyancer have steadilyincreased. The examination function of the DeedsOffice, although substantial and important, is no longeras comprehensive as in the past.

In regard to the future and electronic land registration,it is submitted that the following options warrantconsideration:

• The Deeds Office assumes full responsibility for thelegal validity of Deeds; or

• The legal profession (e.g. the conveyancers)

assumes full responsibility for the legal validity ofDeeds; or

• The Deeds Office merely records and registers asthe examination function is delegated to the PrivateSector; or

• The status quo remains unaltered save for certainconsequential adaptations necessitated by anelectronic as opposed to a paper process; or

• The status quo remains unaltered in essence butwith a number of cardinal adjustments to facilitatethe process, alleviate the burden of the DeedsOffice and render a better service to the public.

A number of permutations between these optionscould also be considered in the sense that an elementor elements of one option could conceivably be builtinto another option.

THE DEEDS OFFICE ASSUMES FULLRESPONSIBILITY

This would inevitably result in a substantial expansionof the examination function of the Deeds Office toensure the legal validity of each and every registration.It would lead to a massive increase in supportingdocuments to be checked by the Deeds Office in orderto establish the legal validity of a particular transaction.

This could lead to an untenable position as the list ofproblems resulting from this option would besubstantial. The following scenarios will result:

To undertake such a comprehensive examinationfunction, the Deeds Office will have to re-establish theso-called Certificate Book Register which wasabolished with the introduction of Section 15 A of theDeeds Registries Act, 1937, read together withregulations 44 and 44A. Extracts of company, closecorporation and trust documents as well as extractsfrom the constitutions of voluntary associations suchas churches, social and sports clubs will have to befiled, albeit in electronic format, in order to enable the

Electronic land registration: Options from a legal perspectiveBy: F G T Radloff – Conveyancer, Pretoria

Deeds Office to check the powers of these juristicpersons.

To give but one example: In the event where a juristicperson such as a company acts (i.e. transfers ormortgages a property) the Deeds Office will have tocheck its Certificate of Incorporation, Certificate toCommence Business, Memorandum and Articles ofAssociation as well as the resolution authorising anatural person to act on its behalf. Although it may bepossible to access some of this informationelectronically from the Companies Office (resolutionsother than special resolutions will certainly beexcluded), such an option would not be available forvoluntary associations such as churches or sportsclubs. The same problem would exist in regard totrusts.

Natural persons would also pose problems as theexisting records of the Deeds Office cannot be reliedupon in so far as it relates to a person's marital status.Affidavits confirming a person's marital status willtherefore have to be checked and verified by theDeeds Office.

The problem could be further compounded if personsother than qualified conveyancers insist on lodgingand registering deeds electronically. The argumentcould be raised that anybody who can read or writeand consequently operate a computer should beallowed to register deeds owing to the fact that theDeeds Office in the last analysis assumes fullresponsibility for the validity of the registration. Thiscould result in a prolonged interaction between theDeeds Office and laymen and would probably, moreoften than not, result in the layman being unable tounderstand the issue or interpret the law, the contractor the empowering or authorising document.

A questionnaire, however comprehensive, cannotresolve the issue as the layman may not realize thatthe supporting document on which he relies whencompleting or responding to the questionnaire, iseither irrelevant, incorrect or even illegal. This cannotbe checked or verified unless the document itself istransmitted to the Deeds Office for scrutiny. It is simplyunrealistic to expect a layman to interpret a will, a trustdeed, conditions imposed by a local authority in thecase of a sub-division or consolidation, or thememorandum and articles of association of acompany.

Even the simplest transaction can pose a problem inthe absence of the intervention of an independent andqualified legal practitioner. This relates to every

instance where a natural person intends to transfer hisor her property. His or her marital status woulddetermine whether he or she could only act with theconsent of his or her spouse in order to comply withthe provisions of the Matrimonial Property Act, 1984(Act 88/1984). The existing records of the DeedsOffice cannot be relied upon as the transferor's maritalstatus could have changed since registration. Anunscrupulous person married in community couldtherefore by giving misleading or false information tothe Deeds Office, alienate the property of the jointestate without the consent of the other spouse.

Such extensive examination will burden the DeedsOffice with too much additional work and willconsequently frustrate the objective of handlinggreater volumes with its existing staff complement.Furthermore, the objective of effecting registrationselectronically will be frustrated as supportingdocuments will have to be submitted in paper format.

This option may also result in too many personsgaining access to the electronic land registrationsystem for registration purposes. The records are notaccessed for information purposes but in fact to recordnew registrations. Hackers could create havoc andjeopardize the integrity of the system. If (in order tosafeguard the integrity of the system) access is limitedonly to qualified conveyancers and statutory rightsofficers with accreditation to access the system, thequestion again arises as to why the Deeds Officeshould carry the sole responsibility for the legal validityof deeds in the first place. In the South African landregistration context, this option is clearly not a viableone.

THE LEGAL PROFESSION ASSUMESFULL RESPONSIBILITY FOR THE LEGALVALIDITY OF DEEDS

This would result in the abdication of its examinationfunction by the Deeds Office. To achieve this, section3(1)(b) will have to be repealed. All the other importantfunctions of the Deeds Office will remain intact, i.e. theduty to register and record, to maintain registers, toprovide information and to preserve records. Thiswould also mean that it would become the soleresponsibility of the conveyancer to ensure thattransactions intended for registration are in properform and that their nature is such that they are capableof registration.

Notwithstanding the repeal of Section 3(1)(b), it wouldappear that the Deeds Office will still have to performa "checking" as opposed to an "examination" function,

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and in this regard the proviso to Section 15A(3) willremain a Deeds Office responsibility. As Court Ordersand Notices affecting persons (insolvency and divorceorders) and land (attachments and expropriations) arefiled with the various Deeds Offices, it follows that theDeeds Office will have to check as to whether or notany of these orders or notices affect a person orproperty involved with a transaction which theRegistrar may be called upon to register.

Should the Deeds Office dispense with theexamination function, virtually the full responsibility forthe validity of deeds will rest with conveyancers. Thiscould lead to problems that may well beinsurmountable.

Although the State does not explicitly guaranteesecurity of title, the system and its application virtuallyhas this effect. To understand this, various sections ofthe Deeds Registries Act must be read in conjunctionwith each other. We refer for example to sections 3(1)(b), 3(1) (y), 6, 13 and 99. It is our view that the judicialfunction of the Deeds Office (i.e. the final decisioneither to pass or reject a deed tendered for registrationor execution) is an inherent function of the State. It isin the public interest that this function should not beoutsourced. In the absence of the judicial function ofthe Deeds Office, conveyancers would simply beunable to ensure security of title as comprehensivelyas is presently the case.

It will also be difficult to maintain a uniform standard ofconveyancing as the Deeds Office will no longer bethe sole arbiter in this regard. The expertise,experience and integrity of a particular conveyancerwill, to a larger extent than previously, determine theintegrity of a registration.

Errors will be more likely to occur as the interactionbetween the Deeds Office and conveyancers will, inthe absence of the examination function, no longer beas comprehensive as at present, resulting in double-checking, to the extent that it still exists, disappearingaltogether.

As the property law environment becomes ever morecomplex, it would be imperative to maintain thestandard of conveyancing. If the examination functionwere to fall away, "examiners" as a group of well-trained and experienced persons, well versed inproperty law, will disappear, leaving the conveyancingenvironment without competent officers capable ofperforming a judicial function (i.e. giving rulings onquestions of law when a conveyancer intends toproceed with a registration fraught with legal

difficulties). Deeds Office personnel cannot beexpected to acquire the necessary skills required forthe performance of a judicial function in the absence ofthe on-going training that the examination of deedsaffords. This may eventually compel conveyancers toapproach the courts for rulings on matters of doubt – afunction admirably performed by the Registrars ofDeeds over many decades up to the present day. Ourcourts are already over-extended and simply cannotbe expected to resolve issues relating to landregistration.

Errors in registration may occur for the reasons givenabove. The marketplace may then dictate that titleinsurance be introduced (especially in the case of bigmortgages). This could lead to an escalation in costsfor the consumer public. To protect them from possibleliability due to errors, conveyancers may likewise becompelled to take out sufficient professional liabilityinsurance, a development that will also inevitably leadto an increase in costs.

It would clearly not be in the public interest if theDeeds Office were to abrogate its responsibilities toensure that land registration is effected in accordancewith the laws of the land. It is in the public interest thatthe Deeds Office performs this vital function inconjunction with the conveyancing profession. Thesystem of checks and balances afforded by theinteraction between the Deeds Office examiners andconveyancers is the cornerstone of our landregistration system, whether applied in paper orelectronic format.

THE DEEDS OFFICE MERELY RECORDSAND REGISTERS AS THE EXAMINATIONFUNCTION IS DELEGATED TO THEPRIVATE SECTOR

The Deeds Office outsources the examination functionto the private sector. Section 3(1)(b) will have to beamended to provide for the delegation of theexamination function to the private sector. The DeedsOffice as the representative of the State remains theauthority to perform the registration function, to keeprecords and maintain registers. The private sectorperforms the examination function on behalf of theDeeds Office. This will ensure that examiners will haveto be trained and employed by the private sector. Theywill continue to perform, as in the past, in addition tothe examination function, the important judicialfunction, i.e. give rulings similar to the presentRegistrar's Circulars and Registrar's ConferenceResolutions as well as ad hoc decisions in regard toproblems of law and practice, as these manifestthemselves countrywide on a daily basis.

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The role of the conveyancers remains unalteredsubject to the qualifications as set out below.

It is doubtful whether the interaction between thepublic and private sector as we know it today can beimproved upon if such interaction (with its system ofchecks and balances) is replaced by a system wherethe private sector interacts with itself, i.e. theconveyancers on the one hand and the examinationentity on the other hand.

The question arises whether this option would serveany purpose. It is doubtful whether a shift of this naturewould afford real benefits to either the public or theemployees of the various Deeds Offices. Thedisruption that will be caused by such a move willprobably not add value to the public or any of the roleplayers in the property industry, especially insofar as itrelates to land registration. The conversion of a paper-based system to an electronic system should notresult in changes that are unlikely to improve thestatus quo.

For the reasons given above under, the State, throughthe Deeds Office, should retain the all-importantfunction to ensure that the laws of the country relatingto land and land registration are duly complied with.We strongly believe that it is in the public interest notto commercialise the judicial function of the DeedsOffice.

This is the first part of the article. The second part willbe published in the June issue of this journal - Editor

Section 30 of the Administration ofEstates Act, Act 66 of 1965 (“the Act”)reads as follows:

“Restriction on sale in execution of property indeceased estates

No person charged with the execution of any writ orother process shall –

(a) before the expiry of the period specified in thenotice referred to in section twenty nine, or

(b) thereafter, unless in the case of property of a valuenot exceeding R5 000,00 the Master or, in thecase of any other property, the Court otherwise,directs,

sell any property in the estate of any deceasedperson which has been attached whether beforeor after his death under such writ or process:Provided that the foregoing provisions of thissection shall not apply if such first-mentionedperson could not have known of the death of thedeceased person.”

Deeds controllers and conveyancers must note thatthe word “Court” is defined in Section 1 of the Act as“the High Court having jurisdiction, or any Judgethereof”. A Magistrates’ Court has no power to givedirections as contemplated in Section 30 of the Act. Inthe recent case of De Faria v Sheriff, High Court,Witbank 2005 (3) SA 372 Judge De Vos J. held that asale in contravention of Section 30 is a nullity andaccording to Section 102(1)(h) of the Act any personwho contravenes the provisions thereof is guilty of acriminal offence.

The question that may now arise is that of whether it isthe duty of the Registrar of Deeds to determine that nosuch transfers are registered unless accompanied bya direction of the High Court? In most cases, sale inexecution transfers lodged at the Deeds Registry willnot indicate whether the owner is deceased.

Readers’ comments will be appreciated – Editor.

Restriction on sale in executionof property in deceased estates:Section 30 of the Administrationof Estates Act, Act 66 of 1965

By: P J Weideman – Deeds Registry, BLOEMFONTEIN

INTRODUCTION

The National Land Policy adopted by the Governmentof Rwanda in February 2004 placed great importanceon an appropriate land administration system as a keyto land tenure security by providing the possibility ofregistering and transferring land.

The nature of Rwanda’s land resources, landoccupation and land tenure systems are well known.They are characterized by high population growth,severe land pressure and an increasing number ofsmall, fragmented land plots. The majority of ruralRwandans hold these plots under customaryarrangements, and it is upon these that they dependfor their basic subsistence and food security.

Fifteen percent of poor rural households in Rwanda donot own any land, approximately 60% of householdshave less than 0.5 ha and 25% have more or less 1ha. Twenty percent of rural people living below thepoverty line have no land at all; the remaining 80%subsist on less than 0.5 ha. In 2000 there were in theorder of 1 941 000 rural households in the country, ofwhich nearly 90% lived at subsistence level, cultivatingover two million land parcels. At any one timeapproximately 80% of all the land in these parcels isunder cultivation and half of the remainder is underpasture or fallow.

Clarification of land rights is required through thedevelopment of appropriate land administrationsystems which can guarantee the security of landtenure and promote investments in land. Improvedsecurity of rights to land will reduce opportunities forconflicts of interest. The process of land registration isone of many public services that, when implementedwith trust and confidence, contributes to sustainableland use and management. It is an important part ofland administration, but it is only a means to an endand not an end in itself. It must be used in the contextof integrated development.

The majority of farmers may not seek formal land title.However, they do require security of rights to land thatare adequate for them to invest in long term andsustained improvements, whether for subsistence orcommercial purposes. Those living in urban areas andothers managing large commercial farms also requirean improved land registration system.

EXISTING SITUATION

Existing situation at national level

At national level, the Ministry of Lands, Environment,Forestry, Water and Mines has the mandate andauthority for land administration and the managementof systems for urban and rural land registration. TheMinistry is responsible for the whole country with theexception of the Kigali City Council, which has theauthority for its own land administration and maintainsits own land register. In practice, formal landregistration has been undertaken in respect of only asmall proportion of the country, with the focus on urbanareas and those in rural areas under commercialagriculture or owned by churches.

At present, Rwanda carries out limited landregistration on a centralized manual system on ademand-led basis in rural and urban areas. Theprimary purpose is to provide land users withdocumentation of land holding for legal purposes andas evidence of property rights as collateral forpurposes of credit or mortgage.

Currently, approximately 20 000 land applications arein process, mainly in urban areas, outside Kigali. Landregistration also needs to be considered in the ruraland peri-urban contexts.

Existing situation at provincial, district andmunicipal levels

At present, the provinces and districts do not have anystructures of land administration. Such structures existonly in the municipalities where decentralization ofland survey and registration responsibilities havecommenced, with the overall follow-up by the Ministryin charge of land. Municipalities are required to sendcopies of land records to the Ministry in charge of theland, where the Chief Registrar of Title Deeds isbased. For rural land, no formal land registration iscarried out at lower levels. Each district in the countryis only authorized to charge variable fees according totheir location and use for the annual rent of landparcels, and to retain the fees. Lease contracts aredelivered by the Minister in charge of Land. Districtsonly hold the relevant copies of contract papersrelating to concessions and land titles in theirrespective areas.

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Land registration and administrationdevelopments in RwandaBy: E Rurangwa – RWANDA

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Kigali City Council has been totally autonomous interms of land administration since 1998. The Cityfollows legal policies, laws and by-laws edicted by theMinistry in charge of lands in respect of land useplanning, land registration and land taxation;otherwise, its land administration system is totallyindependent of that operated by the Ministry in chargeof lands.

An outsourced contract from the Office of the Mayor ofKigali City commenced in 2002 to establish a moderncadastre and registry for land and revenuemanagement. The contract provides for geo-referenced locations of registered parcels, which havebeen surveyed using aerial photography and GPSequipment, to be stored in a GIS system together withother relevant information about the parcels and theirowners.

This project moves the whole process of landsurveying and registration forward from conventionalpaper-based methods and techniques to anautomated and financially driven service that respondsto customer demands. Prior to this initiative, all landmanagement for Kigali City was done manually withpaper copies of all documents. This was effectivewhen the city population was around 300 000, but nowat one million and growing, the old system isinadequate and tax revenue is being lost.

A similar self-financing automated land administrationsystem could function in some other municipalitiessuch as Butare, Cyangugu, Gitarama, Gisenyi,Ruhengeri and Kibuye, because they have sufficientpopulation paying taxes to finance the system.Elsewhere, Government would have to support thedevelopment of any system.

NEW AND INNOVATIVE APPROACHES

Policy approach

As stated by the National Land Policy of Rwanda, anappropriate land administration system would make adistinction between urban land and rural land andwould make a clear separation of State public lands,State private lands and other private lands owned byphysical persons.

The separation of land into two categories ‘urban andrural land’ should be based on the function, allocationand location of land. The definition of urban land isdone by a specific law and by the existence of ageneral plan for the development and allocation ofland.

Urban land can be:

• Urban districts defined as such by the law• Outskirts of urban districts whose surface area and

extent are properly defined• Development poles identified in the framework of

territorial development and of general and regionalplans of land allocation

• Grouped settlements created in the framework ofthe grouped settlement policy

Rural land constitutes the remaining land, outside ofurban districts, which for the most part is used foragriculture, forestry and livestock rearing, and includesland that supports lakes and rivers as well asprotected natural reserves.

The following are classified as the State’s public lands:• Land that supports lakes and rivers• The national roads and feeder roads• Land that hosts public monuments, genocide

memorial sites and cemeteries• Natural reserves and national parks• Marshlands classified among natural reserves• Green spaces• Tourist sites• Public districts’ lands

The following are classified as the State’s private land:• Exploitable marshlands• Private districts’ lands• Vacant land• Land used by State institutions (schools, hospitals,

research institutions, military domains, Ministrydomains, Parastatals’ domains etc.)

Strategic approach

Land administration at national level

Land administration at national level will be operatedthrough the creation of the “Land Centre”.

The purpose of the establishment of a Land Centre isto serve as the engine of land administration and landuse management in Rwanda.

The Land Centre will provide technical andadministrative support to the National LandCommission. This will include the important role ofarchiving information on land conflicts andadjudication.

It will maintain the National Land Register as a spatialdatabase of land registration information for both thenational and local land registration systems. The Land

Centre will not register land itself, as that activity willbe progressively decentralized. Districts andmunicipalities will transfer or provide access to keyregistration information to the National Land Register.This information will provide the basis for a nationaloverview of land allocation. A national land register isnecessary to monitor land registration activitiesthroughout the country, provide information on trendsand safeguard against undesirable appropriations.The National Land Commission will receive regularupdates on the status of the National Land Registerand determine appropriate actions as necessary.During the transition period, National Land Registerstaff will support and provide training for decentralizedland registration.

The Land Centre will ensure the national co-ordinationof spatial planning information. The centre will beresponsible for the identification and collection ofspatial information from all sectors. These will concernprogrammes and projects for land and naturalresource development and management, and inparticular those that involve irreversible changes inland use. Procedures will be developed to make thisinformation available to key factors in order to performa process of co-ordinated spatial developmentplanning. Although not itself a planning agency, theLand Centre will have a key role of enabling masterplanning, which is co-ordinated spatial developmentplanning at national and provincial levels. It will alsofacilitate land use planning at district level and below.

The Land Centre will re-establish and maintain thenational geodetic control system:

The Land Centre will provide an essential basis for theaccurate mapping of land parcels, and will play therole of Archiving the national map and aerialphotography collection. The Land Centre will maintaina national reference collection and catalogue of landinformation. This will include copies or electronicaccess to maps, digital data and air photograph flightdiagrams, negatives and digital copies, as appropriate.These will include information currently held byNational University of Rwanda, the Ministry ofInfrastructure, the Ministry of Agriculture and AnimalResources, the Ministry of Lands as well as Districtsand Municipalities.

Photomaps will be a basic input to participatoryplanning and local land registration. The Land Centrewill be responsible for specifying and commissioningaerial photography, its rectification and the productionof photomap products.

The Land Centre will actively market products andservices to the private and public sectors. Charges willbe made on a cost recovery basis. Arrangementsconcerning copyright and intellectual property rightswill need to be agreed upon.

The Land Centre will promote information sharing andthe use of compatible data exchange formatswherever possible. This is particularly relevant asdifferent sectors increasingly invest in spatialmanagement. The Land Centre may host events, anddevelop a website and newsletter to promote co-operation between the various sectors. The Centre willestablish linkages to land and related policy researchundertaken at the University of Rwanda and otherinstitutions.

Over the transition period the Land Centre will beresponsible for training and providing support todecentralized activities such as district level landregistration. It will also be responsible for the trainingand support of the decentralized participatory planningteams.

The Land Centre will be responsible for designingsystems for the timely and secure collection, transfer,storage and management of spatial data. Landregistration information generated at district level willform a large part of the data.

Support will be provided by the Land Centre indemarcating, maintaining and protecting internationalborder control survey beacons around the country.

The proposed structure of the Land Centre reflects theroles and responsibilities that can be clustered intofour technical units and one support unit as follows:• National Land Registry Unit• Spatial Services Unit• Spatial Co-ordination Unit• Training and Decentralisation Unit• Support unit

The National Land Registry Unit will be responsible formaintaining the national land register. The SpatialServices Unit will be responsible for geodesy, mappingand spatial data management. The name SpatialServices emphasizes the provision of services to arange of users on a cost recovery basis. The SpatialCo-ordination Unit will be responsible for the collectionand co-ordination of spatial development information.The Training and Decentralisation Unit will beresponsible for training the participatory planningteams and supporting the decentralization of services.The Support Unit will provide support to the Centre’sadministration, the management of human resources,

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finances, procurement, logistics and security, and themaintenance of equipment.

The proposed organizational structure to accommo-date these roles of the Land Centre is illustrated asfollows:

Land Centre Structural Organisation

Land administration at local level

Local land registration will strengthen the rights of ruraland peri-urban land users by a registration systemsufficiently flexible to accommodate the immediateand longer-term demands being placed on it. At thesame time it will provide the foundation for nationalland registration to be carried out and title deeds to beissued on known parcels of land where the demandexists. The approach meets the needs of government,which envisages a system that will facilitate thegranting and registration of ownership of specificparcels of land, and which focuses on povertyalleviation.

Considering land registration as a tool for providingsecurity of tenure to individual occupiers of a landparcel and as an economic investment, a land officewill be established in each district. This land office willbe responsible for land use planning, land surveying,land registration and land titles delivery. It will alsohave the role of keeping and disseminating data.

In practice, the process will follow these steps:

1. All individual parcels of land should be available forregistration, without consideration of the minimumsize.

2. Registration should proceed in two phases, startingin the first phase with a collective registration ofcells, based on photomapping methods.

3. The cost of taking air photos will be supported bythe government, with financial assistance from theinternational community. The collective registrationof cells using photomaps has the added advantageof providing a wealth of basic administrativeinformation. In the next phase individual parcels willbe identified and individually registered.

4. Two technical staff will be provided to each districtto build its capacity for land registration and landuse planning.

5. It is essential that the local community participatesclosely through all the stages of land registration,supported by NGOs and civil society workingclosely with the communities. The Ubudeheapproach will serve as a model of participation.

Appropriate strategies will be used for the registrationof squatter developments in peri-urban areas, in whichthe main inhabitants are poor people, and lessons willbe learned from the experience of Kigali City. Theobjective is to establish socially inclusive local levelland use planning and secure land rights for the poorin an integrated way.

In order to achieve this, the proposal aims to developdecentralized capacity for:

(a) participatory spatial planning capability whichpromotes sustainable resource management, and

(b) local land rights documentation as a basis forland title registration.

In practice, participatory planning and local landregistration are operationally integrated and supportedby the necessary technical capacity and planning,mapping and land information tools.

Community mapping will be used at sector and celllevels, using established techniques based on highresolution / large scale photomaps. These willincorporate the overall boundaries and maintopographical, infrastructure, settlement, land use andland classification features of the cell. These will bemapped at scales between 1:5,000 and 1:2,500.

At the same time an inventory of landholdinghouseholds will be compiled, with land holdingsbroadly described and authenticated by groupdiscussion. This is the first stage in documenting andregistering land rights and will serve as a developmentplanning tool for a wide range of other purposes.These records and photomaps will be held at cell,sector and district level.

Institutional arrangements

Effective institutional arrangements will underpin thedelivery of the expected outputs. However, a balancemust be found between the need for institutionalinvestment and concerns over recurrent costs. Wherepossible, new roles and responsibilities should beincorporated into existing structures. Where this is notpossible, new structures should be designed asefficiently as possible.

The key central institutional innovation will be theNational Land Commission, as provided in the landpolicy. This will broaden the responsibility for guidingthe implementation of the land policy, across not onlygovernment, but also, by incorporating theirperspective and experience, across the private sector,

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civil society and the academic community. Theestablishment of provincial and district landcommissions should build on previous and existingstructures, under the guiding principles ofrepresentation, accountability and transparency.

The creation of the Land Centre will support thetechnical and administrative delivery of land policyobjectives. Agency status combined with an emphasison service delivery will ensure that the Land Centrewill respond flexibly and effectively.

MINITERE will retain responsibility for land policyformulation and for the operational management of theLand Centre. Under planned central governmentrestructuring of its capacity for monitoring and guidingimplementation of the land policy, the land law will bestrengthened.

At district level, the district land commission willsupervise and guide the implementation of the landpolicy by the district authorities. The districts will needto appoint new technical staff responsible for supportand co-ordination of the land registration and land useplanning processes at cell and sector level.

SUMMARY

The new Rwandan land policy regards appropriateland administration as the platform for landmanagement and an ideal channel to provide a securelivelihood to the people by means of a secure landtenure system.

At present Rwanda carries out limited land registrationon a centralized manual system, on a demand-ledbasis in rural and urban areas. Currentlyapproximately 20 000 land applications are in process,mainly in urban areas.

In rural areas, initial documentation, including a sketchplan and a description of the property, is issued to theuser and held in a cadastral database at the Ministry incharge of land.

In urban areas, municipal authorities are responsiblefor registering land and the demarcation of plots forurban development.

The land policy commits Rwanda to a comprehensiveprogramme of land registration, in order to provideland users as a whole with more certain rights andthereby promote the investment of labour and capitalin increased productivity, and the sustainabledevelopment and management of land resources. Inaddition, land registration could extend the tax base in

rural areas, and in any further development of furtherplanned settlements or imidugudu.

The land policy stipulates the creation of landregistries in each of the 104 rural districts and 8 urbanmunicipalities. A dual system of land registration willbe adopted. The formal system would apply to highvalue land, urban areas and commercial enterprises orto other land users who require detaileddocumentation for legal and financial purposes. Asystem of local land registration for the majority of ruralareas will be developed and managed by the districts.This process will be greatly aided by use of highresolution photomaps derived from aerialphotography, which are also proposed as a tool forlocal level land use planning to facilitate thereconciliation of individual and family rights with landparcels.

In urban areas and all others where there arecommercial incentives, formal titles to individual landparcels with demarcated boundaries will be registeredfollowing enacted legislation. The cadastral projectnow operational in Kigali City Council may be taken asa model of a demand-driven self-financing landregister that utilizes automated methods to captureand provide land information.

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The Vryburg Deeds RegistryBy: Justin Visser – Conveyancer, VRYBURGRepublished with permission from De Rebus

An original deed of grant, signed in 1883. The annotation “60 min” along the boundaries of the sketch, and thedescription “2_ uur van Vryburg” on the “Inspectie Rapport” are of special interest.

The historical background and development of theVryburg Deeds Registry make interesting reading. In1881 a local chief, Mankoroan, who lived in theSchweizer Reneke district, recruited a few Boers andattacked his rival chief in the Vryburg district, DawidMassouw Riet Taaibosch. The latter also recruitedwhite Boer fighters, and at the last battle on a farmtoday called Massouwkop, about 15 km north-west ofVryburg, he defeated Mankoroan. Prior to joining up,the Boers were promised land should they fight forthese chiefs.

On 26 July 1882 a peace agreement was signed anda large piece of tribal ground, part of the thenBechuanaland, was allocated to the white farmers onboth sides. These volunteers, acting by virtue of

powers delegated to them by Massouw, establishedthe Republic of Stellaland with Gert Johannes vanNiekerk as the first president. The town of Vryburg waslaid out and the rest of the ground divided into 461farms, each about 3 000 morgen. Deeds of Grant wereissued by “Groot Opperhoofd” Massouw RietTaaibosch, delegating power of transfer to the“Voorzitter van de Kommissie van Bestuur”. TheseDeeds of Grant, one of the originals of which I stillhave in my office (see copy above) were issued on abasis similar to that at present in operation in SouthAfrica. It is interesting to note from the small diagramannexed to the Deed of Grant that the farms weresurveyed on horseback, sixty minutes along eachboundary.

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The Government of the Republic of Stellaland issuedtitle to land from a Deeds Registry, very similar to thepractice in the then South African Republic. AnExecutive Civil Government was established andLionel George Lee was appointed as the first Registrarof Deeds. He was also the resident magistrate.

When Britain annexed Stellaland in 1885, provisionwas made for the laws in operation at the Cape withrespect to deeds registration to be extended to theannexed territory (Proc 2BB s 40 of 1885 Cape). In1889 a separate post of Registrar of Deeds wascreated, and the Cape practice operated until 1893.Rules and regulations governing procedure were laiddown and confirmed by Proc 182/1893.

Following annexation, a commission was approved todetermine land claims in the territory. All but three ofthe grants made by the Government of the StellalandRepublic were upheld and certificates of title wereissued, in lieu of the original grants by the Britishauthorities. A certain MC Genis was then Registrar ofDeeds. In 1895 it became necessary to replace allcertificates of ownership by deeds of grant with surveydiagrams attached. Later that year, when the territorywas included in the Cape Colony, provision was madefor the deeds registry to continue in undisturbedoperation.In 1899 it was made subject to the Cape DeedsRegistries Act which was in operation at the time ofUnion. Acts 21 of 1885; 43 of 1895; 1 of 1891; and 39of 1905 were in operation prior to Union.

These laws remained in force until they were replacedby the Deeds Registries Act 13 of 1918. This Act wasreplaced by the Deeds Registries Act 47 of 1937,

which still today contains a special provision relating tothe Vryburg Deeds Registry; s 101 reads as follows:

“SPECIAL PROVISIONS RELATING TOTHE VRYBURG DEEDS REGISTRY:

(1)The practice prevailing prior to the commencementof the Deeds Registries Act, 1918, in the DeedsRegistry at Vryburg of transferring or mortgagingland held under a certificate of ownership issued bythe administrator of the territory known as BritishBechuanaland prior to its annexation to the Colonyof the Cape of Good Hope, and which was declaredby that Act to be legal and of effect, shall continueto be legal and of effect. Provided that

(a) the provisions of this Act shall apply in respectof any transfer, certificate of title, mortgage orother deed sought to be registered in respect ofany land so held;

(b) no transfer of or other form of title to ormortgage of any defined portion of a piece ofland so held shall be registered unless thesurveyor-general concerned has certified thatthe boundaries of such piece of land arecorrectly represented on the diagram thereof;

(c) if the surveyor-general is unable to certify asaforesaid the provisions of ss 40, 41 and 44shall mutatis mutandis apply, notwithstandinganything to the contrary in any other lawcontained.

(2)The provisional registration in the Deeds Registry atVryburg of any cession or assignment of rights tounascertained or unsurveyed land, prescribed byGovernment Notice (British Bechuanaland) of 13thday of November 1886, shall continue to be of forcein respect of land to which a right of ownership wasacquired prior to the annexation of BritishBechuanaland to the Colony of the Cape of GoodHope, until such time as a grant of such land hasbeen registered.”

Some of the registrars who acted here were LoodVosloo (Senior), Bob Murdoch, Dick du Toit, TheoBrincker and HC du P Victor, and among the olderconveyancers who did duty over the years wereHerman Rosenblatt, PH de Kock, Jack Visser, John deKock, Boet du Plessis, Willis Viljoen and EdwinFrylinck.

The present Registrar of Deeds is Mr M Sechele. -Editor

The Vryburg deeds office

This column provides a brief exposition of case lawrelevant to conveyancing and notarial practice.However, the case law must be read in toto and thesummaries not solely relied upon.

Rhode v Stubbs 2005 (5) SA 104 (SCA)

WILLS

This case concerned a rare decision regarding thelegal principles underlying the massing of estates. Thebulk of South African decisions dealing with this areaof our law of succession were decided more than ahalf century ago. The facts of Rhode were as follows:Attie and Lettie Williams were married in community ofproperty. They had executed a mutual will in whichthey bequeathed one half of an immovable property totheir son Charles, and the other half to Evelyn, Attie’sdaughter from a previous marriage. These bequestswere made subject to a usufruct in favour of thesurvivor of the two testators. When Attie died, hisshare of the immovable property devolved on the twolegatees (Charles and Evelyn), while Lettie enjoyedthe usufruct. In his lifetime Charles had been thespouse of the respondent in the present case(Stubbs). Prior to her death in 1969, Lettie executed awill in which she bequeathed her share of theimmovable property (which had in the meantime beensubdivided) to the appellant (Rhode). Rhode wasLettie’s child from a previous marriage. The rights ofoccupation of the whole property, and later the twosubdivided parts of the property, were registered bythe local Town Council in the name of Evelyn. Adispute arose as to who exactly was entitled to whatportion of the property. Suffice it to say for presentpurposes that it was common cause that the rights ofthe persons involved, and also the question as to thecorrectness of the transitional council’s decision toregister it in Evelyn’s name, depended entirely onwhether Attie and Lettie’s will massed their estates.

Conradie JA (Mpati AP, Cameron, Mthiyane and BrandJJA concurring) held that for massing it was necessarythat the one testator disposed of both his own estate(or a part of it), and the estate (or a part of it) of theother testator. The mere acceptance of the benefitsfrom a mutual will (here Lettie’s acceptance of theusufruct created in the will) could not in itself bring

about massing. If, in the first place, there was nomassing, any act of the survivor (Lettie) which wouldotherwise point to adiation (acceptance of the terms ofthe will) was meaningless. There is a generalpresumption against the massing of estates and theprovisions of Attie and Lettie’s will did not rebut thispresumption.

The original will therefore had to be interpreted as twowills and the appeal was upheld with costs.

Sayers v Kahn (2002) 1 A11 SA 57 C

SALE OF IMMOVABLE PROPERTY

In this case the Plaintiff and Defendant had enteredinto a written agreement of sale whereby Plaintiffpurchased a vacant piece of ground from theDefendant for the sum of R80 000. The Plaintiffinstituted action against the Defendant who raised aspecial plea that the agreement was null and void inthat it failed to comply with section 2(2A) of theAlienation of Land Act 68 of 1981 (“the Act”).

Section 2(2A) of the Act provides that “the deed ofalienation shall contain the right of a purchaser orprospective purchaser to revoke the offer or terminatethe deed of alienation in terms of section 29A”. Section29A of the Act, confers on certain purchasers of landthe right to revoke an offer to purchase the relevantland or to terminate a deed of alienation entered into inrespect of such land, by written notice delivered to theseller or his or her agent within a period of five daysafter signature of the offer to purchase or of the deedof alienation.

Held – The Court considered the consequences of afailure to comply with the provisions of section 2(2) ofthe Act. The Act does not expressly stipulate theconsequences of non-compliance. The general rule ofstatutory interpretation is that non-compliance with astatutory prescription results in nullity. However, thecrucial issue is always the intention of the legislature inenacting the relevant statutory prescription. Theintention of the legislature must be determinedaccording to the established principles of statutoryinterpretation.

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Conveyancing through the casesBy: A S West – Deeds Training, Pretoria

The Court considered the various principles ofstatutory interpretation which were relevant in thismatter. The Court also considered the object of andpolicy underlying the introduction of section 2(2A) intothe Act.

The Court found that the semantic guidelines for thedetermination of the intention of the legislature inenacting section 2(2A) pointed in different directions.While the wording of section 2(2A) has an imperativecharacter, the provision is expressed in positivelanguage. The Act contains no criminal sanction fornon-compliance with the provisions of section 2(2A).On the other hand, section 29(7)(b) expressly providesthat a waiver by a purchaser or prospective purchaserof the rights conferred upon him or her in terms of thissection is null and void.

The Court agreed with the Defendant’s view that themeaning of the words “shall contain” is that the“cooling-off right” provided for in section 29A must bewritten into the deed of alienation itself. The policyunderlying the enactment of section 2(1) of the Actwas to prevent uncertainty and disputes concerningthe content of contracts for the sale of land, and ofpossible malpractices in regard to such contracts. If adeed of alienation were to be regarded as valid despitenon-compliance with the provisions of section 2(2A),the object of the legislature in inserting section 2(2A)into the Act would be frustrated or seriously inhibited.

The Court concluded that the effect of non-compliancewith section 2(2) of the Act was to render theagreement of sale null and void. The special plea wasupheld with costs. The agreement of sale wasdeclared to be null and void.

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Mere references to the articles are provided.

Obiter 100 (2005) (26.1) - Unisa

Withholding tax where non-residents dispose ofimmovable property – H Delport

De Rebus November 2005 p45

Latest amendments to the Sectional Titles Act – TMaree

De Rebus - September and October 2005p44

Administrative structures for complex owners’associations – T Maree

Property Law Digest - September 20059.3 PLD 6

Exclusive use areas: the secrets of the sectional titlegarden – L Kilbourn

TSAR 2005.3 p609

General notarial bonds and surety – J C Sonnekus

Property Law Digest - September 2005PLD 12

Amending the Sectional Titles Act – disturbingsleeping dogs or solving problems – R Warner

BOOKS ON

CONVEYANCINGName of Book: The Law of Sale and Lease

Author: A J Kerr

Publisher: Durban: Lexis Nexus Butterworths

Edition: 2004 Third

Pages: 565

Price: R444,85

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