Power of executor - 4

I read Mr Nqhome's reply (to my reply!) dated 21 February 2007, with great interest. I fail to see why my reply should be seen as 'disturbing'.

I am not discounting the decision in Kriel v Terblanche at all. To the contrary. The case was keenly followed by myself and others for good reason. Historically the Registrar of Deeds at the Cape Town deeds registry did not require the conveyancers to provide reference in deeds and documents to the letter of authority issued by the Master when trustees acted in a deed, such as was always required in the case of an executor. The Registrar of Deeds, Cape Town, erroneously relied on reg 44A of the Deeds Registries Act 47/1937(DRA). After the decision in Simplex (Pty) Ltd v Van der Merwe and others NNO 1996 (1) SA 111 the Registrar of Deeds at Cape Town issued Registrars Circular (RC) 7/1997, which required that reference be made to the trustee's letter of authority. However, as examiners did not fully grasp the effect of the circular, which did not outline the situation to them, RC 6/1998 was issued to elucidate the matter, with specific reference to the Simplex case. It is interesting to note the last sentence in paragraph 6 of RC 6/1998: "However, if the land has been transferred into the name of the trust, the title is deemed to be valid Section 28(2) Act 68/81)". Is that not a statutory confirmation of the abstract mode of acquisition? However, despite what the Registrar of Deeds Cape Town stated in that sentence, the general opinion in the deeds registries at the time was that a large number of voidable titles may have existed in the various registries being cases where trustees indeed acted without authorisation and that fact was not noted by examiners. When the Kriel case was decided and word thereof got out, it was realised that the case would for once and for all decide the matter. The rest is history.

The point is, however, that the case revolved around the question whether a title, already registered in terms of an invalid deed of sale, in the circumstances as found in the Kriel case, is valid. There is no argument as to the Court's arguments. The point is that if a Registrar becomes aware of the fact that a deed of sale is invalid because a trustee acted prior to being appointed, he is in no position to act as though he is a Court. He must reject such a transfer. A Registrar of Deeds is not, by definition, a Court, and cannot call witnesses and cannot decide that the title registered as a consequence of a void deed of sale will be valid once registered, because there may be circumstances which he is not aware of, which he cannot ascertain or reasonably be expected to ascertain and which even a Court may decide will render a subsequently registered title void.

I did not or do not envisage that deeds of sale be lodged for examination. Fact is, however, that a Registrar may call for documentary proof of facts, but cannot, as stated above, call witnesses to prove or disprove statements. I therefore merely stated that the Registrar would be able to call for the deed of sale, should he consider it necessary for any reason. Section 15A (1) DRA should be read in toto. The words: "..to the extent prescribed by regulation.." is very important. Reg 44A does not include deed of sale as being one of the matters prescribed by regulation as being the responsibilty of the preparer of any document mentioned in either reg 43 or 44 DRA, and nor should one lose sight of the provisions of section 4(1) DRA which provides each Registrar with the power "...to require the production of proof upon affidavit or otherwise of any fact necessary to be established in connection with any matter or thing sought to be performed or effected in his registry...." The facts in a deed of sale can thus not be said to have been conclusively proved as stated in section 15A (3) DRA.

The law as it stands says the deed of sale is void ab initio if the trustee acted before being authorised by the Master to act in that capacity. The same goes for an executor. It is as if the act never happened. Numerous cases state that. Why should a Registrar then give consequence to an act which has no legal consequence at all? If a deed of transfer where such circumstances existed does get registered and an attempt is made to declare the title void on the basis that the deed of sale was void ab initio, because the trustee or executor was not duly appointed or authorised to act in that capacity by the Master at the time of the contract, then the Kriel decision will obviously find application.

I was not trying to imply that the Court would have upheld the Registrar's decision to reject a draft deed of transfer where the same circumstances as in Kriel existed. But now that Mr Nqhome mentions that, I suspect that the Court may very well uphold the Registrar's decision to reject such a draft deed of transfer. The Court would in such circumstances, in fact, have to decide on quite a different matter altogether. I doubt, with respect, that a Court would compel a Registrar to register a transfer based on a sale which is ab initio void.

It is true that the Kropman decision is in dispute with theSimplex decision. This does seem to fly in the face of a significant number of cases, some referred to in Simplex , some Apellate Division decisions, and some of which I refer to in my reply. What is interesting though is that the judge in Kriel does not dispute the fact that the deed of sale in question was invalid. In fact it was accepted as common ground by all the parties, based on the Simplex decision. Furthermore, the Kriel decision was referred to the Appellate Division on review and, as far as I am aware, was upheld. The quote from the Kropman decision, I submit with respect, proves that different circumstances were present when the judge spoke those words and should possibly not find application here.

I wonder what Mr Nqhome's decision would have been, had he occupied a Registrar's seat in such circumstances. I would most certainly not be prepared to register a transfer if the deed of sale was entered into by a person acting as executor prior to having been appointed in that capacity by the Master.
23 February 2007

Dudley Lee
Vanderspuy Attorneys
Cape Town