Included in the detailed comments were the following suggestions by the committee:
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As regards a 'mortgage bond' the committee pointed out that, as the system was moving to an electronic document system and one of the aims was to try to keep paper work to a minimum, it suggested that consideration should be given to changing the process for executing a mortgage bond.
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At present, a mortgage bond is executed by the conveyancer before a Registrar of Deeds as opposed to a transfer, which is registered by the Registrar of Deeds, but not executed before the Registrar of Deeds. The LSSA Committee asked whether it was not possible to have a mortgage bond executed by the mortgagor before a conveyancer and registered by the Registrar? The committee foresees difficulties in having a conveyancer executing electronically. Alternatively, the committee suggested that there should be a move away from the term 'executed' in so far as mortgage bonds are concerned and get the mortgagor to sign an 'authority to mortgage', signed in the same manner as a power of attorney to transfer and register it as a charge against the property.
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In the definitions, the committee suggest that the provincial designation of deeds offices be omitted. With developments in technology a situation may arise where two or more provinces might have a single deeds registry serving them, alternatively there could eventually be one single countrywide deeds registry with provincial branch offices. The move away from provincial designations allows for future changes as technology develops without the necessity of going back to Parliament.
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For the purposes of giving evidence in a court of law, the committee suggested that it be added that a certificate by a conveyancer - certifying that on a particular date he accessed the Deeds Office electronic database and confirmed that there had been no change in the database to the information recorded on the true copy - would be admissible in evidence. The committee is of the view that this particular aspect should be discussed, not just with conveyancers, but also by specialist litigation attorneys to ensure that whatever is decided in the Deeds Act is acceptable for litigation purposes.
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The committee suggested that at some stage consideration should be given to getting rid of registering property in the name of a partnership. According to the committee, a partnership is not a legal persona and if people trading in partnership want to register a property it should be registered in the names of the partners. This would also sort out a number of problems with regard to vesting of assets where one of the partners happens to be married in community of property. At the same time s 24 should be amended to use it as a means of getting properties out of the name of existing partnerships, but preventing properties in the future being registered in the names of partners.
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The committee was of the view that the deeds registry should not concern itself with things such as the National Credit Act 34 of 2005 because such legislation changes, and the concern is that by being too specific something could be excluded. In addition, the committee did not believe that a mortgage bond (or notarial bond for that purpose) should be restricted to an already existing mortgage agreement. The wording in the Bill could lead to a mortgage bond being invalid if the underlying transaction is invalid. This should not be the concern of the Deeds Office. The Deeds Office's concern, according to the committee, should be limited to the validity of the charge, not the validity of the underlying agreement.
- To avoid any arguments as to whether or not an antenuptial contract is a deed (as the term is used somewhat loosely in South Africa) the committee suggested that the definition of 'notarial deed' be amended by inserting the words 'and shall include an antenuptial contract'.
Barbara Whittle,
Communication Manager, Law Society of South Africa
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