Confusion still exists as to whether an erroneous marital status of a person in the vesting clause of a deed may be amended in terms of section 4(1)(b) of the Deeds Registries Act 47 of 1937 (the Act).
In an attempt to resolve the matter the provisions of sections 4(1)(b) and 17(1), (2) of the Act must be carefully considered. To comply with the prevailing law in respect of marriages in community of property and the vested right of the joint estate in immovable property, real rights in immovable property and notarial bonds, section 17(1) of the said Act provides that such property, real right or notarial bond ”…shall be registered in the name of the husband and the wife, … “. However, section 17(1) of the Act must not be read in isolation, but in conjunction with section 17(2). Section 17(2) elaborates on the registration requirements in compliance with section 17(1) of the Act. The provisions of section 17(2) can therefore be seen as to “describe” the persons contemplated in section 17(1) of the Act, in relation to their marital status and the spouses’ names.
Section 4(1)(b) of the said Act provides for the rectification of an error in the name or the ”description”of any person, provided certain conditions are met. The marital status, whether the marriage was concluded in or out of community of property, and even the names of the spouse are all part of a person’s description (see section 17(2)(a), (b) and (c)). Section 4(1)(b) of the Act can thus be applied to rectify an error in such a description, provided evidence is provided of the correct status, in the form of an affidavit or otherwise.
Whenever section 4(1 )(b) of the Act is to be considered, the principles laid down in Ex Parte Menzies et Uxor 1993 (3) SA 799, must be kept in mind. Apart from these considerations, it must also be established whether such an amendment would not result in a contravention of any other law, e.g. the Subdivision of Agricultural Land Act, Act 70 of 1970, the Advertising on Roads and Ribbon Development Act, 21 of 1940, and the Agricultural Holdings Act 22 of 1919, etc. If the amendment will result in a contravention of the said Act, the application to rectify the error will not be permitted unless certain consents, etc. are lodged.
Where the deed to be amended, is mortgaged with a registered mortgage bond, such amendment must also not invalidate the bond with non-compliance of, for example, the provisions of section 15 of the Matrimonial Property Act 88 of 1984 or the renunciation of the legal exception “de duobus vel pluribus reis debendi”. If this is the case it is recommended that a “substituting” bond be registered in lieu of the existing bond, which is to be cancelled simultaneously with the registration of the section 4(1 )(b).
It is thus clear that where immovable property vests in a person described as unmarried, out of community of property, or a marriage governed by the laws of a foreign country, but is in actual fact married in community of property or, vice versa such vesting can be rectified in terms of section 4(1)(b).
I am confused by the reference to "a person" in the last paragraph. Surely the property must be owned by both husband and wife?
If a deed was registered to a party described as "unmarried", where in fact the party was married in community of property at the time of taking transfer, would it not be procedurally correct for that party alone to apply for the rectification of his marital status in terms of Section 4(1)(b), and thereafter both spouses must apply for the property to vest in the joint estate in terms of Section 45?
One of the requirements of a Section 4(1)(b) Application is that it must not have the effect of transferring any rights - In the example above, the property now vests in a joint estate, which to my mind would result in a transfer of rights.
Where land is registered erroneously in one spouses name, but should have been registered in both parties names as per section 17 it is clearly an error in registration and can never be a transfer of rights. Please consult CRC 3 of 1994 for an in depth discussion on this issue.
Alex Section 45 can only be applied in the case of death, divorce or a change in status. In this instance it is merely an error in registration and neither of the aforementioned.
Mr West What can be done where on the deed the owners are described as married in community to each other (customary marriage) which is in fact erroneous. The lobola was never fully paid and according to the man they are not married and never were. How would one rectify the deed?
It can be amended in terms of section 4(1)(b) with the consent of all interested parties. The bond will have to be cancelled.
Dear Mr. West, I have a situation where the transferor (the seller) of the deed was erroneously described as being married out of community of property while in fact married in community of property. It is clear that section 4(1)(b) can be applied, but is it necessary to rectify the description of the transferor?
Dear Mr West, I have a matter where the parties was married in community of property in 1977 the farm was transferred to the husband in 1982 and he is described as not married in the deed. We lodge a a section 17(4)(a) application and was it rejected by the Deeds office and they state that we should lodge a Section 17(4)(c) application. Is this correct or should we rather have gone the Section 4(1)(b) route?