A document which was signed abroad but not duly authenticated ought not to be accepted for, or in support of, registration of a transaction, unless sound motivation for an exception to the rule exists. Rule 63 may be applied to documents signed in any foreign country, while the applicability of the Convention procedure is limited to certain countries. Furthermore, rule 63 provides a less cumbersome procedure for some countries as an exception to the general requirements applicable to all other foreign countries. In addition, rule 63(4) provides the registrar of deeds with the discretion to accept a document that does not fully comply with the requirements set for authentication. With different authentication procedures applicable to certain countries and with each of the registrars of deeds having the discretion to accept or decline documents not complying with the requirements, it stands to reason that a uniform practice for deeds registries is nothing but pie in the sky. Therefore, it is imperative to know and understand the different procedures and requirements, as well as the applicability of each.
In terms of rule 63(4) each registrar of deeds has the discretion to decline or accept a document that had to be authenticated, but in fact does not meet with the above discussed requirements (also consult RCR 6 of 2005). It must, however, be borne in mind that, if a registrar of deeds declines acceptance of such a document, the registrar indeed has exercised the discretion afforded in terms of rule 63(4). Declining acceptance of such a document is not tantamount to non-exercising the discretion. It is also submitted that, if such a document (which had to be, but was not, properly authenticated) has to be lodged with a deeds registry, acceptance thereof will be obtained from the registrar of deeds / designated official, prior to lodgement.
The Special Investigating Unit (SIU) has been directed by President Jacob Zuma to investigate theft, fraud, corruption and maladministration in the lodging and processing of deeds on the deeds registration system at the deeds offices in Pretoria, Cape Town and Bloemfontein. This investigation forms part of a wider probe Zuma has asked the SIU to undertake into the affairs of the Department of Rural Development and Land Reform and the State Information Technology Agency (Sita) and its service providers.
Last month Zuma directed the SIU to investigate, among other things, corruption, unlawful conduct, serious maladministration, unlawful expenditure of public money or property and intentional or negligent loss of public money or damage to public property. This investigation involves the e-cadastre or electronic real estate registry project, also known as Project Vulindlela, which was intended to improve the management of land and land rights information. It is believed the department has suspended work on the e-cadastre project. The deeds office in Pretoria, in particular, has been mired in controversy over alleged fraudulent and irregular property transfers. Thirty-three properties worth millions of rand owned by the Johannesburg Property Company (JPC) were fraudulently transferred in 2010.
In minutes to a meeting with representatives from the Tshwane Metro and North West Housing Corporation (NWHC) in June 2010 chaired by the then chief registrar of deeds, Sam Lefafa, he referred to the alleged fraudulent transfer of about 30 properties owned by the Tshwane Metro and NWHC to private owners by the deeds office in Pretoria. Thabo Tshweu, the then executive director for corporate auxiliary and administration services at the Tshwane Metro, confirmed to Business Report that an investigation had been launched by the city into properties it owned that may have been fraudulently or irregularly transferred to private owners. Subsequent attempts by Business Report to obtain comment on the progress of this investigation were never answered. Five lawyers were arrested by the Hawks in August 2010 over their alleged involvement in the fraudulent transfer of the 33 properties owned by the JPC.
The Johannesburg and Pretoria deeds offices will be opening on Wednesday, 17 June, following closure on Friday night, 12 June "after conveyancers who were in the building tested positive", Knoesen has confirmed.
The Cape Town Deeds office has had to close twice, since being allowed to re-open under Lockdown Level 3 Restrictions at the beginning of May. The result is a batch of 14 000 backlogged deeds and a reduced staff compliment that needs to look at alternatives to ensure the registering of properties gets back on track.
The delays of course have had considerable knock-on effects, considering between 10 000 and 12 000 bonds would usually be registered in the deeds office a day. As a sector, property contributes significantly to the GDP, supported by the fact that the "deeds office processed R12 billion in registrations in April 2019 alone".
"In the past Deeds had audit finding on the movement of deeds in and out of the offices by officials and the security risks associated with it. Examination and registration of deeds and documents is a core function and in terms of Sect 3 of the Deeds Registries Act 47 f 1937 under the sole mandate of the Registrar of Deeds. Each Registrar of Deeds must manage the process and functions as they believe is best for their office in the current circumstances. Ensure safety of the records as well as the officials, in the best interest of the Branch and Department."
The function of registration of deeds is in their sole responsibility, and then with it the safeguarding of the records in their offices. So, if you look at my role of Chief Registrar of Deeds it is basically to ensure uniformity in the country.
* This report has been updated. Previously Johannesburg backlog unconfirmed, includes Friday evening closure of Pretoria and Johannesburg deeds offices due to Covid-19 risk; Adds Cape Town Attorney's Association High Court Application Comment.
[paragraph (y) amended by Act 92 of 1978]and generally the registrar shall discharge all such duties as by law mayor are to be discharged by a registrar of deeds or as are necessary to give effect to the provisions of this Act: Provided that nothing in this Act contained shall be construed as imposing upon the Rand townships registrar the duty of registering any deed or other document which he would not have registered if this Act had not been passed.
If it is sought to register transactions affecting separate pieces of land situate within the areas served by different deeds registries, the registrars concerned may, subject to the provisions of any regulations, by mutual arrangement, effect such registration in such manner as may be found expedient.
Deeds of transfer shall be prepared in the forms prescribed by law or by regulation, and, save as in this Act or any other law provided or as ordered by the court in respect of deeds of transfer executed by the registrar, shall be executed in the presence of the registrar by the owner of the land described therein, or by a conveyancer authorized by power of attorney to act on behalf of the owner, and shall be attested by the registrar.
the title deed or deeds of the said pieces of land may on compliance with the requirements of this section be superseded by a certificate of consolidated title issued by the registrar in the prescribed form.[subsection (1) amended by Act 43 of 1957]
No transfer of land and no cession of any registered lease or sub-lease or other real right in land except a mortgage made as security for a debt or other obligation shall be attested by any registrar or registered in any deeds registry.[section 91 amended by Act 80 of 1964, with the amendment deemed to have come into effect on 1 September 1937]
No act or omission of any registrar or of any officer employed in a deeds registry shall render the Government or such registrar or officer liable for damage sustained by any person in consequence of such act or omission: Provided that. if such act or omission is mala fide or if such registrar or officer has not exercised reasonable care and diligence in carrying out his duties in connection with such act or omission, the Government shall be liable for the damage aforesaid: Provided further that the registrar or officer guilty of such act or omission shall be liable to make good any loss or damage resulting therefrom to the Government if such act or omission was mala fide.[Prior to Namibian independence, the reference to the Government of the Republic in section 99 was to be construed as including a reference to the Administrator-General.]
The purpose of this book is to act as a basic guide and thereby equipping paralegals and law students with practical skills in the law and procedures relating to conveyancing: that is, the drafting, evaluation and registration of deeds required for the lawful creation and transfer of ownership and other real rights in land in South Africa. The opening chapter will present a history and overview of the South African Land registration system. In the second chapter, a discussion of the various rights relating to immovable property will be dealt with. The third chapter focuses on the office of the conveyancer and/or notary, particularly the practices and procedures involved therein. The fourth chapter will continue with the same theme albeit from the point of view of the Deeds office. In other words the emphasis will be on the Deeds office practice and procedures. Chapters five and six will respectively deal with the two processes of transferring and mortgaging immovable property as well as zooming in on the relevant instruments of implementing same. Lastly, servitudes and notarial deeds are the subject matter of discussion for chapter seven.
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