Power of executor – a reply

In Power of executor, published in GhostDigest on 14 December 2006, Mr Allen West discusses conflicting opinions on the action to be taken by a Registrar of Deeds if a sale was concluded by an executor prior to his/her appointment by a Master of the High Court and, relying on Regulation 44A of the Deeds Registries Act, 1937, ("the DRA"), sections 13 (1) and 15 and of the Administration of Estates Act, 1965 ("the AEA") and section 3(1) (b) of the DRA, concludes that "any transaction entered into by an executor or representative prior to his or her appointment is ab initio null and void and must be rejected by the deeds examiners concerned" (my emphasis).

I take this opportunity to address the issues raised by Mr West.

Section 3 (1) (b) of the DRA provides for a rejection of a deed or document if its execution or registration is not permitted by the DRA (" Ground 1") or by any other law (" Ground 2") or if there is any other valid objection to its execution or registration (" Ground 3"). Therefore, since a (sale) transaction is not a deed or document submitted for execution or registration, it is incapable of rejection.

It is clear from section 99 of the DRA that a Registrar of Deeds must exercise reasonable care and diligence in carrying out his/her duties. However, due to circumstances beyond his/her control, I doubt that he/she is required "to register an indisputable title deed".

A Registrar's determination of the date of a transaction results from the performance of his/her duty to examine deeds or documents in terms of section 3 (1) (b) of the DRA.

Although a contravention of section 13 (1) of the AEA is an offence in terms of section 102 (1) (g) thereof, a transaction in contravention of the said section has not been declared null and void by the AEA.

A Registrar of Deeds has no power to declare a (sale) transaction null and void.

Section 42 (2) of the AEA provides that: "An executor who desires to effect transfer of any immovable property in pursuance of a sale shall lodge with the registration officer, in addition to any such other deed or document, a certificate by the Master that no objection to such transfer exists." This section is relevant to Ground 2.

Therefore, if an executor has been appointed by a Master in terms of section 13 (1), albeit subsequent to the (sale) transaction, and the Master has subsequently issued a certificate in terms of section 42 (2) of the AEA, I submit that a rejection of a deed of transfer, in the circumstances, would be unlawful, assuming, without necessarily accepting, that Ground 3 would be relevant.

Regulation 44A (c) of the DRA has nothing to do with the authority to enter into a (sale) transaction but everything to do with the authority to sign a power of attorney to pass transfer.

In Kriel v Terblanche N O en Andere 2002 (6) SA 132 (NC), it was decided that "where a contract for the sale of immovable property is void (for example, as in casu, because the agreement was entered into by a trustee who had, at the time of the signing of the contract, not yet received the necessary authorisation from the Master in terms of section 6 (1) of the Trust Property Control Act 57 of 1988, but who had the necessary authority at the time of registration of transfer), that does not have the effect that the subsequent registration of transfer of the land is not valid." Refer to Gowar Investments also, published in GhostDigest on 7 December 2006, with regard to the Supreme Court of Appeal's attitude towards the interpretation of section 2 (2A) of the Alienation of Land Act, 1981.

Thabo Nqhome
08 January 2007

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