Customary marriages - Endorsements

The amended section 17(4) of the Deeds Registries Act 47 of 1937 ("the Act") provides for the following two new instances in which title deeds may be endorsed in order to reflect the registration of immovable property in the name of a person married in terms of customary law.

Endorsement in terms of section 17(4)(d) of the Act
Section 17(4)(d) provides for the endorsement of title deeds in order to reflect the registration of immovable property in the name of a person who is a party to a marriage which is governed by the provisions of the Recognition of Customary Marriages Act 120 of 1998.

The registrar of deeds must, in terms of section 17(4), effect the necessary endorsement on title deed/s to reflect the name and status of the parties whose marriage is governed by the provisions of Act No. 120 of 1998. An endorsement in the above mentioned regard can, however, only take effect upon the lodgement of the relevant title deed/s together with an application and proof of the relevant marriage (registered certificate).

Endorsement in terms of the second proviso of section 17(4) of the Act
The purpose for the insertion of the second proviso in section 17(4) is to provide for the endorsement of title deeds in instances where a court order has been granted in terms of section 7(9) of Act No. 120 of 1998. It is, in terms of the second proviso of section 7(4), not necessary for the lodgement of an application for purposes of an endorsement in this regard.

The reason for the above mentioned is found in section 7(9) of Act No. 120 of 1998. Section 7(9) provides that the registrar or clerk of the court concerned must cause a copy of the court order, together with the other relevant documentation, to be furnished upon each registrar of deeds of the "area in which the court is situated".

The possibility, however, exists, that the "registrar of deeds in the area in which the court is situated", may not be the registrar of deeds of the deeds registry in which the immovable property concerned has been registered. In order to overcome the above mentioned problem, the following procedure must be followed in all deeds registries:

Where the court order as contemplated in section 7(9) of Act No.120 of 1998 has been furnished to a registrar of deeds, such court order must be recorded as a caveat against the names of the parties concerned. A caveat in the above mentioned regard must remain against the names of the parties concerned and must not be uplifted with the transfer of immovable property concerned. The reason for the above mentioned is to serve notice, to the examiner and the conveyancer, of the marital status and contractual capacity of the parties for any further transaction that may be registered in the deeds registry.

A registrar of deeds must forward a copy of a court order, as referred to above, to all other registrars of deeds. Upon receipt of such copy of court by the other registrars of deeds, the practice as alluded to supra must be followed.

For a full exposition of the above practice, you are referred to CRC 1/2004.07.27

Republished with permission from the July SA Deeds Journal