The following is an extract from the minutes of the “Conveyancers Meeting dated 11/02/2016” held at the Pretoria Deeds Office between the Registrar of Deeds Pretoria, her management team and Pretoria Conveyancers:
“There is a culture to pay examiners to remove notes. Prep Clerks should refrain from doing it as it is a free service. There is no need to do so as deeds are received at Prep and Delivery within a few days.”
Apart from the astounding concession (confession?) contained in this statement, what is most worrying and even more stupefying, is the weak treatment of this malady. Prep clerks are simply requested to “refrain from” what constitutes bribing examiners, as it is a “free service” and there is no need to do so due to the short turnaround time of deeds!
Section 4 of the Prevention and Combating of Corrupt Activities Act 12 of 2008 (“the Act”) inter alia provides as follows:
(a) public officer who, directly or indirectly, accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself or herself or for the benefit of another person; or
(b) person, who directly or indirectly, gives or agrees or offers to give any gratification to a public officer,whether for the benefit of that public officer or for the benefit of another person,
in order to act, personally or by influencing another person so to act, in a manner –
(i) that amounts to the-
(aa) illegal, dishonest, unauthorised, ..................................;
(bb) misuse or selling of information or material acquired in the course of the, exercise, carrying out or performance of any powers, duties or functions arising out of a constitutional, statutory, contractual or any other legal obligation;
(ii) that amounts to –
(aa) the abuse of a position of authority;
(bb) the breach of trust; or
(cc) the violation of a legal duty or a set of rules;
(iii) designed to achieve an unjustified result; or
(iv) that amounts to any other unauthorised or improper inducement to do or not to do anything,
is guilty of an offence of corrupt activities relating to public officers.
(2) Without derogating from the generality of section 2(4), ‘to act’ in subsection (1), includes –
(b) performing or not adequately performing any official functions;
(c) expediting, .................. the performance of an official act;
(d) aiding, assisting or favouring any particular person in the transaction of any business with a public body; ........” In section 1 of the Act “gratification” is defined as including:
“(a) money, whether in cash or otherwise;
(b) any donation, gift, loan, fee, reward, valuable security, property or interest in property of any description,whether movable or immovable, or any other similar advantage;”
Should a proper response to this unacceptable, dishonest and criminal behaviour not have reflected in the minutes as follows:
“The Registrar has with concern taken note of the habit of some unscrupulous prep clerks and conveyancers to make payment to examiners to remove notes. Such action constitutes a corrupt activity and offence in terms of Act 12 of 2004, perpetrated by the examiner as well as the prep clerk / conveyancer. Both examiners and prep clerks / conveyancers are warned that should evidence of any such action be found, the examiner in question will immediately be subjected to a disciplinary hearing, and the conveyancing firm reported the Law Society. Pending the outcome of these steps, criminal charges may follow.
The Registrar confirms that the Deeds Office is committed to clean administration and fair service to all, and that any corrupt activities will not be tolerated.”
And what are we as conveyancers doing about this? Are we aware of this and turning a blind eye? Or worse still, are we condoning it or even encouraging it?
Rumours of corruption in state departments are rife. One can maybe understand (although not condone) that the temptation for John-Citizen to have an administrative function expedited when he or she for example once every five years renews his or her driving licence, is strong. But for us as conveyancers, who are in daily contact with the Deeds Office to be party to a continued transgression of the law, and thus to create both a culture and an expectation should be totally unacceptable. We are after all also officers of the court.
The time has come for all conveyancing firms to in writing pledge towards the Registrar to root out any form of corruption, and for any firm who is guilty of such behaviour, to have its lodgement number suspended. Only if we stand together will this have any chance of success. What is the view of my colleagues?
Schalk van der Merwe