Conference Resolutions 08(2)

18/2008 Section 4(1)(b) of Act No. 47 of 1937:
Should the use of the words "the error" in section 4(1)(b) of Act No. 47 of 1937 be interpreted that only one error per application can be amended or is it permissible to amend multiple errors with one application? What if different errors occur in different titles?

Resolution:
Multiple errors may be amended in one application, albeit different errors in different titles.

This is an extremely progressive resolution that will assist the public with considerable savings with regard to registration, and perhaps, conveyancing costs. It must be pointed out that the cost factor is not the reason behind this resolution. Only time will tell whether the deeds office will insist on one application or if it will permit numerous applications. However, if it happens that I be given the opportunity of continuing examining deeds, I will definitely not align myself with multiple applications, unless of course a document that proves that it is the specific instruction of the conveyancer's principal that multiple applications be made is lodged with the relevant deeds. I understand that I am not Father Christmas, but in all honesty, why should the public not be given the benefit of a procedure that will save it money?

19/2008 Section 4(1)(b) of Act No. 47 of 1937:
Is it a requirement that a conveyancer must be "duly authorised" in terms of a power of attorney to bring an application in terms of section 4(1)(b) of Act No. 47 of 1937?

Resolution:
No, a conveyancer needs not to be "duly authorised" in terms of a power of attorney.


It often happens that a power of attorney authorises a conveyancer to perform such other acts that are necessary for the execution of her/his mandate. The question before conference was whether a conveyancer could sua mero motu make a section 4(1)(b) application in cases where the power of attorney granted does not make reference to other acts necessary for the performance of the mandate contained in the Power of Attorney. This question was then answered in the affirmative. This resolution will go a long way in ensuring that the practitioners execute their mandates in the shortest time possible.

20/2008 Section 34 of Act No. 47 of 1937:
Where an owner of the whole or a share in land wishes to fractionalise his/her title, may such owner apply the provisions of section 34(1) as his/her common law right or must he/she be a co-owner to apply it?

Resolution:
No. It should not be allowed until such time as the Act is amended.

This matter came to conference because of the emerging trend of selling undivided shares in holiday homes. Conference, however, could not resolve the issuing of CRTs because the DRA does not contain provisions for such a procedure. The DRA will be amended in due course in order to address this need.

22/2008 Section 45bis(1A)(b) of Act No. 47 of 1937: Change of Matrimonial Property Regime:
A right of extension is registered in the joint estate of parties married in community of property. The parties change their matrimonial property regime in terms of section 21 of Act No. 88 of 1984 to out of community of property and the court orders that the right of extension must be divided equally between the spouses. The provisions of section 45bis(1A)(b) cannot be invoked vide RCR 15/2006. How must registration occur, as applying the provisions of section 25(4) will lead to absurdity?

Resolution:
The status quo followed in the offices must remain, pending the amendment of Act No. 47 of 1937.



This resolution is extremely fluid because the status quo in the offices is not the same. In short, some offices apply section 45bis(1A)(b) whilst others do not. It is thus advisable that practitioners should make enquiries about a procedure that is followed in a particular office. This matter was referred to the Deeds Registries Regulations Board, but the said Board resolved that this problem cannot be solved by amending section 45 of the DRA, but by amending the Sectional Titles Act (STA) such that a right of extension should be deemed to be immovable property and not a right to immovable property as it is so deemed currently. However, in the interim CRC 1 of 2009 sanctions the application of these sections.

24/2008 Regulation 84: Registration Fee for Leasehold Transfers:
The initial registration of a leasehold transfer is exempt from the payment of a registration fee, however, uncertainty exists as to whether the subsequent transfer of leasehold is also exempt from the payment of a registration fee.

Resolution:
All leasehold transfers are exempt from the payment of registration fees in terms of section 52(15) of the Black Communities Development Act No. 4 of 1984.

Examiners should note that this resolution is applicable irrespective of the causa or procedure for the transfer. Thus, where leasehold is at issue, no registration fee will be payable in respect of a section 45endorsement or forced sale or a donation, etc.

30/2008 Cancellation of Mortgage Bond:
Where it is endeavoured to cancel a mortgage bond but on closer perusal it is determined that the bond is passed by the mortgagor in favour of the mortgagor. Can such cancellation be effected by the 'correct mortgagee' where a section 4(1)(b) amendment is brought by such 'correct mortgagee'?

Resolution:
Proof as to the correct situation must be called for in terms of section 4(1)(a) of Act No. 47 of 1937. The bond must then be amended with a section 4(1)(b) application, made by the 'correct mortgagee', whereafter such bond must be cancelled. The consent of all interested parties must be insisted upon.

This resolution is included solely for information purposes so as to highlight the consequences of sloppy preparation and examination.

37/2008 Transfer of property in insolvent estate:
Can the trustee in an insolvent estate transfer property, vested in the trustee before the rehabilitation of the insolvent, 10 years after the insolvent was automatically rehabilitated?

Resolution:
No. See the provisions in section 25 of Act No. 24 of 1936.

This resolution is included solely for information purposes. Examiners are urged to be vigilant as the consequences of permitting such transactions could prove to be too ghastly to contemplate. Once again the provisions of section 99 of the DRA should be borne in mind.

38/2008 Lost Notarial Deed:
If an original deed of servitude is lost and the deeds office copy is also lost but the protocol copy is still in possession of the notary, may a deeds registry copy be generated from the protocol copy?

Resolution:
A substituted Notarial deed cancelling the existing servitude and replacing the lost Notarial deed must be registered.

The idea of using a protocol copy is tempting, but conference observed that such a procedure could lead to disaster. The possibility of endorsements militated heavily against the use of the protocol copy.

41/2008 General Power of Attorney granted by Bank / Company - after registration change of name / transfer of assets:
Can an agent appointed by a Bank / Company still act in terms of the power of attorney which was granted and registered by the Bank / Company who subsequently changed its name or transferred its assets to another entity?

Resolution:
(1) The power of attorney will terminate tacitly by the transfer to the new entity which is formed.
(2) The power of attorney will not terminate with a name change.

Examiners are urged to be extremely vigilant with regard to part one of the resolution and ensure that property should not be dealt with based on a power of attorney granted by an entity that transferred the relevant entity to another.

George Tsotetsi
Office of the
Chief Registrar of Deeds

Republished with permission from SA Deeds Journal