To check interdicts that have been served upon a Registrar rests solely with the examiner (deeds controller) and is an exceptionally onerous - task, which could result in major financial losses for both the state and examiners.
As far back as 1979, examiners were warned in this regard. To, once again, warn our newcomers to the system of their duties in this regard,-CRC 2 of 1979
is now quoted in toto:
CRC 2 of 1979
Registration of' transactions contrary to interdicts that have been served upon the Deeds Office can result in serious financial loss to the State. It is therefore, imperative that the greatest care be taken by all officers who receive, record or withdraw interdicts and by examiners to ensure that" no transaction is registered contrary to an interdict. Attention must also be drawn to section 99 of the Deeds Registries Act No 47of 1937 which provides inter alia that an officer can be held personally liable for any damagesustained as a result of such officer failing to exercise reasonable care and diligence in the exercise of his duties.
2. Duty sheet of an interdict clerk
The duty sheets of the interdict clerks must be comprehensive. Every step to be taken by the interdict clerks in the performance of their duties must be set out in detail and so far as possible all contingencies that may arise must be covered. In the following paragraphs, attention is focused on some of the duties of an Interdict clerk.
Attachments served upon a Registrar are always typed on paper with a letterhead of the particular Sheriff or do not bear the original signed copy. Where this happens the attachments must nevertheless be noted but the imperfection must be brought to the notice of the Sheriff.
Rule 43(2) of the rules of the Magistrates' Court provides that the notice of attachment served on the Registrar Of Deeds shall be accompanied by a copy .of the warrant of execution upon the execution debtor. Should the warrant of execution not accompany the notice of attachment, it must nevertheless be noted and the Sheriff of the Court advised of the discrepancy.
It must be noted that the corresponding rule of the Rules of the High Court does not require the Sheriff of the Court to attach a copy of the warrant of execution to his attachment notice to the Registrar of Deeds.
Where an interdict is noted against immovable property the correct spelling of the owner's name must be ascertained from the records before the interdict is noted in the interdict day-book or the interdict index to ensure that the particular property is not dealt with contrary to the provisions of the interdict. %
An attachment received between the time of lodgement and execution was missed because the entry in the interdict day-book followed - the erroneous name in the notice of attachment which did not agree with the name reflected in the deed.
Where the property description as disclosed in an attachment master's notice or other interdict differs from the description reflected in the title deed, the interdict must be treated. with the greatest caution. If the property can be identified with reasonable certainty, the interdict must be - noted but the erson or body who lodged interdict must be notified of the difference
If the property cannot be identified with reasonable certainty the interdict must be returned by certified post. Where the interdict relates to more than one property and all the properties cannot be identified, the interdict must only be noted against those properties that can be identified and the person or body who served the interdict must be advised accordingly.
Should the judgment debtor reflected in the attachments not be the registered owner of the property attached, the attachment must not be noted but it must immediately be returned by certified post to the Sheriff with the reason why the attachment has not been noted. Where the description of the property is correct but the spelling of the owner's name is erroneous, the attachments must be noted. Minor errors in the spelling of. the judgment debtor's name can be ignored but where there may be a doubt whether it is the same person, for example the omission of a Christian name, the difference in the names should be brought to the attention of the Sheriff.
In addition to land any real right in land may also be attached, for example the interest of a lessee in a registered lease or that of a mortgagee in a bond. Furthermore it is possible to attach a purchaser's interest in a deed of sale in respect of land. Notwithstanding what has been stated in paragraph 2.5, such an attachment must be noted to prevent the purchaser from dealing with the land once it is registered in his name. It is, therefore, necessary in such a case to bring the attachment forward when the property is transferred by the registered owner. Should the transfer conflict with the transaction in the deed of sale, for example the seller gives transfer to a person other than the purchasers an appropriate note must be raised to bring the facts to the attention of the conveyancer.
Releases from and withdrawals of attachments must comply with the following requirements:
(a) It must be the original copy, signed by the Sheriff.
(b) The letterhead of the Sheriff must appear on the document and/or it must bear his official stamp of office.
(c) The case number must be disclosed. Should the case number differ in the release or withdrawal from that disclosed in the notice - of attachment, the release or withdrawal must not be noted but it must be returned to the Sheriff. In a recent instance two attachments were noted against a property and the wrong attachment was purged because the interdict clerk omitted to check the case number
(d) Where the attachment covers two or more properties; a withdrawal which relates to some but not all the properties attached must be dealt with great care to ensure that all the properties are not erroneously released from the attachment.
(e) The interdict clerk and the officer responsible for checking his work must initial the endorsement made on an attachment relating to a withdrawal or release before such endorsement is signed by the officer charged with this duty.
The work of the interdict clerk must be checked by another officer
4. Interdict Day-book
Experience has shown that the type of interdict which, when overlooked, has resulted in financial loss to the State, has almost without exception been attachments.
A separate interdict day-book or other suitable index must, therefore, be kept in which the properties relating to attachments. Master's notices and any other interdict coupled with a specific property must be noted alphabetically. The names of the owners of properties attached or in respect of which Master's notices, etc., have been received must nevertheless be noted in the main day-book or other index, in a like manner to insolvencies and liquidations. Immediately before execution or registration all deeds must be checked against both sets of interdict day-books or indexes. Although this procedure is admittedly cumbersome it is justified in view of the dangers inherent to the procedures followed. There is no objection to Registrars in the small Deeds Registries arranging for the final black-booking of deeds prior to execution being done direct from the interdict index if all interdicts received have already been noted on such index, provided a separate check must be made against the entries of properties in the interdict day-book as herein stipulated.
In Pretoria Deeds Office the names of companies and other juristic bodies are entered in the interdict day-book with a red ballpoint pen. This has been found to facilitate the black-booking procedure.
Often the names of parties in sequestration and other interdicts are not precise. Queries should I therefore be raised wherever there is a reasonable possibility that the name in the interdict day-book can refer to the party in the deed being black- booked.
5. Duties of examiners in relation to interdicts
The duty sheet of examiners must specifically specify their responsibility and duties in relation to interdicts.
In offices where the records have not been computerized absolute responsibility will rest on the junior examiner for checking the interdict index and land register for interdicts. Where the records are computerized examiners will rely on the computer printout for interdicts. It will be the duty of the junior examiners to consult the interdict itself to ascertain whether it is applicable to the particular deed.
Should a junior examiner find that an interdict is not applicable to the particular transaction he must note the reasons for his finding against the interdict on the computer printout to enable the senior examiner to control his finding.
The words "not applicable" or "N/A" are not sufficient. In offices where the records are not yet on the computer all the interdicts noted against the particular person's name or in the land register must be listed on the examiner's note sheet and - should an interdict be found to be inapplicable the interdict note should be removed in the usual manner and the reason for removal stated.
Whether the senior examiner must himself investigate the applicability of an interdict will depend on the circumstances, for example the nature of the transaction or the reason given by the junior examiner why the interdict is not applicable.
Where examiners are not absolutely certain about the effect of an interdict they must consult their seniors. For example, in one instance recently the Court authorized the Deputy-Sheriff to sign the Power of Attorney to pass transfer where the owner refused to do so, and an attachment against the property was erroneously ignored because of the Court Order.
The position would have been different if the Order of Court had authorized the transfer free from bonds and other encumbrances.
On re-lodgement rejected deeds must be black- booked anew. There have been instances where interdicts received since the prior lodgement have been missed because this has not been done.
When an exaininer has reason to believe that there should be an interdict but there is no interdict noted in the interdict index or land register, for example where a subdivisional diagram is endorsed "Act 21 of 1940 conditions it is the duty to ask the conveyancer to obtain such document or a certified copy thereof.
As stated in paragraph 4.3 interdicts received often contain discrepancies as to the full names and the exact spelling of the names of the parties. This poses a particular problem in regard to sequestration and liquidations as there is no double check as in the case of attachments and Master's notices, which are also noted against the property in the land register.
It is of course impossible to check all possible variants of the names that must be black-booked. Where the interdicts are recorded on a card-index, the existing practice of checking under known variant names is sound and must be continued. Where the interdicts have been recorded on the computer, the listing on the computer printout can be accepted.
Separate notes must be made about rehabilitation orders, i.e. separate from sequestration orders, but where an examiner is able to link a rehabilitation order with a particular sequestration order this must be indicated in his notes.
Examiners must be most careful not to assume that a rehabilitation order applies to a person mentioned in a particular sequestration order, as rehabilitation orders often do not disclose the date of the sequestration order and there are in fact instances in some offices where rehabilitation orders have been linked to sequestration orders and there is no evidence to substantiate the linking.
Furthermore, particular care must be taken not to remove insolvency notes or to disregard sequestration orders where property is purchased or otherwise acquired before or during the period of insolvency and the insolvent is rehabilitated subsequent to the date of acquisition. The provisions of section 58 of Act l937 must be borne in mind in such cases.
Repealed by RCR 74 of 1987]
A most important function of examiners is to ensure that the necessary instructions are given to the interdict section to purge interdicts which have been complied with. Obsolete interdicts which remain in the interdict index cause endless trouble to both examiners and conveyancers. In the past the interdict index in all the large Deeds Officeshas been cluttered with obsolete interdicts.
lt must be noted that a sequestration interdict cannot be purged because the insolvent has been rehabilitated. In terms of section 20(2) of the Insolvency Act all property belonging to the insolvent person at the time of insolvency and property acquired during the insolvency vests in the trustee of the insolvent estate.
Such property is not re-vested in the insolvent on his rehabilitation except where his rehabilitation has been effected pursuant to section 119 of the lnsolvency Act, 1926 and the deed of composition expressly provides for the re-vesting of the property in the insolvent.
Cases have occurred where a rehabilitated insolvent has attempted after his rehabilitation to deal with property which ostensibly still vests in his trustee. In such cases a disclaimer by the trustee or an order of Court confirm the re-vesting of the property in the rehabilitated insolvent to deal with the property is needed.
Like all other acts of registration, applications for the amendment or change of name of a party to a deed must be black-booked.
What is important is that there may be interdicts which do not prohibit the registration of the amendment or change of name but are nevertheless applicable to that party or the property reflected in the deed. In such instances examiners must make an office note for the interdict clerk to also index the interdict against the name as amended or changed.
Except where transfer is given by the Sheriff in pursuance of a sale in execution, all attachments must be withdrawn before a deed can be marked in order, and in offices where the records are computerized, the computer printout which accompanies the deed must not list any attachments. Where transfer is passed pursuant to a sale in execution, examiners must give the necessary written instruction to the interdict clerk to urge the relevant attachment interdict or interdicts.
Attention is drawn to section 20(1)(c) of the Insolvency Act No 24 of 1936 which provides that a sequestration will stay the execution by a Sheriff of a Judgment of the Court. Examiners must, therefore, raise the usual insolvency queries where a transfer is passed by a Sheriff in pursuance of a Court judgment.