The practice regarding affidavits required for the registration of the rectification of an error in terms of Section 4(1)(b) of the Deeds Registries Act 47 of 1937 (DRA) and the application for a certified copy in terms of regulation 68(1) of DRA needs a rethink.
The article by A S West in issue No. 10 of the SADJ on the application of Section 4(1)(b) of the Deeds Registries Act states that "although the aforementioned section does not require an application or affidavit, this is established practice". This is true, and so much so that examiners believe that there has to be an affidavit. Deeds are rejected, even by senior staff, on that basis. With respect, simple proof of the error in registration should, given the wording of the section, be all that is required for such a rectification to be made. Admittedly, an application makes for better conveyancing practice. However, established practice cannot usurp the provisions of the Act and the insistence on an affidavit should be relaxed, if not abandoned altogether.
The article also correctly points out that Section 4(1)(b) does not stipulate who may request the rectification of a deed, yet it is also established practice that deeds are rejected if someone other than the owner applies for their rectification. It is a simple fact that, with few exceptions, owners of land, mortgagees, etc., do not have, except for the spelling of their names and dates of birth (and sometimes even that!), any idea what requirements are involved in the registration of deeds.
The last paragraph of that article begs comment as well. Remember, if you make no mistakes, you make nothing. However, if firm A registered the title and firm B is now instructed to pass a bond over the property and realises that some error exists in the title, what is there to do? Does firm B sue firm A? Try to force firm A to attend to the rectification? Blame it on the deeds office and its employees for not seeing the error? Must firm B nowttend to the rectification for free? Time is money … and maybe it is the mad rush to give good service that can sometimes be blamed for the errors! Batho Pele shooting itself in the foot?
As regards applications for the issue of certified copies under Regulation 68(1) of the Deeds Registries Act, it is submitted that conveyancers are responsible for their own misery in this instance. The regulation clearly states that the registered owner or his agent may make the application. It continues to specify an affidavit supporting the application, without specifying who should make that affidavit. Deeds registries insist that the owner must make the supporting affidavit, and conveyancers blindly comply with that view, but that practice does not make sense.
It is common knowledge that by far the majority of title deeds never pass through the hands of the owner, but are retained by the mortgagee. How can an owner in such a case be required to issue an affidavit as to the whereabouts of the title? He cannot know where it is!
He believes it to be safe in the custody of the bank. Big mistake! Titles are lost by banks, conveyancers, post offices, couriers, other postal services, but relatively rarely by the owner himself, because he never sees it or has it in his possession. Surely, it would be far better practice to require the mortgagee or conveyancer, or whoever actually could have handled or possessed the title at some time, to issue the supporting affidavit.
What is the opinion of readers? - Editor of SA Deeds Journal