I concur with everything Adv. Gwangwa has said in Beware of the 'Ides'. It must be borne in mind that the same requirement is set out in section 56 of the Sectional Titles Act. As a lodging correspondent, I am often instructed with court orders which simply cannot be given effect to. The problem is exacerbated because, seemingly, some of the judges are equally oblivious to this requirement, and do not call for the report to court before granting the order.
I have previously raised this via the KZN Law Society High Court committee, but with little effect.
But the deeds registry can equally be to blame when the report to court merely sets out the relevant sections of the DRA or the STA, or the regulations, and then merely states that the Registrar will “abide the decision of the court”.
The Registrars need to be pro-active in their reports to court, and they need to point out procedural issues or problems to the court - and not simply to leave it in the discretion of the judges - who, as Adv. Gwangwa has quoted - often have little knowledge of deeds registration processes.
In KZN the practice of the Registrar of Deeds is to provide a report to court only where there is a specific request for the report, and against payment of the appropriate levy. In a recent example of these problems, the parties eventually abandoned the court order - and negotiated a settlement which was then registered without reference to the court order. The court order turned out to be a complete waste of time and money.
Where attorneys who are not conveyancers, or have no experience or knowledge of conveyancing, launch legal proceedings which will result in an act of registration in the deeds registry, they should always obtain advice and guidance in the framing of the draft order from a conveyancer, and in appropriate some circumstances from a notary, in order to ensure that the court order can be given effect to in the deeds registry - without problems arising when the deeds come to be lodged.
J Leslie Smith & Company
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