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Beware of the 'Ides'

31 August 2017

BEWARE OF THE ‘IDES’ OF SECTION 97 OF DEEDS REGISTRIES ACT 47/1937 (NOTICE TO REGISTRAR OF APPLICATION TO COURT)

Due to ignorance of the provisions of Section 97 of the Deeds Registries Act (Act 47 of 1937), Registrars of Deeds are always faced with the dilemma of having to interpret and implement Court orders which are in direct conflict with legislation. Many practitioners are not aware of these provisions and Applications to Court are made without complying with the section. The Section is quoted for ease reference.

Section 97

  1. Before any application is made to the court for authority or an order involving the performance of any act in a deeds registry, the applicant shall give the registrar concerned at least seven days’ notice before the hearing of such application and such registrar may submit to the court such report thereon as he may deem desirable to make.

  2. Subject to notice in terms of subsection (1) being given to the registrar concerned, any order made by a court having jurisdiction over a person in respect of that person’s property or rights to property situate in another province shall be given effect to by the registrar of such other province without the necessity of having such order confirmed by the court of the province in which the property is situate.

The section makes it PEREMPTORY (my emphasis) for all applications to Court for an order involving the performance of any act in a deeds registry, that the Registrar be given at least seven days’ notice before the hearing of such an application, and that such registrar MUST (my emphasis) submit to the court such report thereon.

The importance of this section should also be seen against the backdrop of a comment made by one of the judges of the Appellate Division in the case of Chief Registrar of Deeds v Hamilton 1969(2) SA 543(A), where he referred to ‘the mysterious procedures, known only to conveyancers and officers in the Deeds Office, which are involved in transferring titles to land’. It is for that reason that it is important to strictly comply with the provisions of Section 97.

The Registrars of Deeds in trying to resolve this dilemma have to consider instances where there has been non-compliance with the said section, and they are faced with such orders that they find difficult to implement. RCR12/2016 (The section is quoted below for ease of reference) is thus a manifestation of these frustrations arising from non-compliance with the provisions of Section 97.

RCR12/2016 - Application of a court order

Where a Registrar of Deeds is ordered by the Court to perform a specific transaction, does the Registrar have the authority:

  1. To refuse to comply with the Court order if it is not in accordance with the Act or if the Act does not make provision for such an act of registration as ordered by the Court? If the Registrar may refuse, what procedure should be followed?

  2. To allow an alternative act of registration than what is ordered by the Court, having the same end result or must the Court order be followed strictly?

  3. Comply with the Court order without following the provisions of the Act.

Resolution:
The Court order must always strictly be complied with. If the Registrar of Deeds or any interested party is aggrieved by an order of Court he/she must apply to Court to set aside the order or apply for a variation of the order.

An example of such applications is where A entered into an agreement of sale of an Erf with B. Before the property could be registered in the name of B, A entered into another sale agreement with C. B approached the court for an order setting aside the agreement between A and C and further for cancellation of the title deed. The order was granted as prayed. It should be noted that in this case there was no transfer of property from A to C, thus a prayer for cancellation of a title deed would lead to unintended results, as the property will thus go to A’s predecessor in title, and who moreover was also not a party to the application.

If Section 97 was complied with, the Registrar of Deeds would have brought the discrepancy to the attention of the Court pertaining to the cancellation of the title deed of A.

Non Compliance with Section 97 puts tremendous pressure on Registrars of Deeds in implementing orders of Court contrary to applicable legislation. If the Registrars of Deeds are unable to comply with an order of the court, and have to apply to court for a variation of the order, or to have the order set aside, it may cause unnecessary frustration to the applications. Hence practitioners should strictly comply with the Section.

Adv Audrey Gwangwa

Reader Comments: 1
Allen West 04/09/2017:

I fully concur with Adv Gwangwa that a Report by the Registrar is necessary. However, such report must guide the Court in making its decision and not merely regurgitate the de jure position in the deeds registry and refer that the Registrar will abide by the Courts decision, the latter often being the case. It must also be mentioned that a Registrar only needs to provide the report if he/she desires to do so (see the wording of section 97).

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