Power of executor – reply 3

In Power of executor - reply to a reply, Dudley Lee has raised new and disturbing arguments, which must be responded to. Mr Lee's most disturbing view is that: "No Registrar of Deeds will register a transfer where a person acted as trustee before being authorised by the Master to do so, notwithstanding the decision in the Kriel case. It is a valid rejection based on legal fact."

Further, Mr Lee discounts the relevance of the Kriel decision by drawing a distinction between a Registrar's rejection of transfer documents tendered for registration, on the one hand, and a High Court's confirmation of a registered Deed of Transfer, on the other hand.

If regard is had to (a) Allan West's advocacy, in Power of executor, that "a registrar of deeds must register an indisputable title deed", (b) the fact that a direct implication of the Kriel decision was a vindication of the Registrar's decision to register, and not to reject, the draft Deed of Transfer tendered for registration and (c) the principle of stare decisis, I am unable to subscribe to Mr Lee's approach to the matter. The Court in the Kriel decision considered the validity or otherwise of the sale transaction, in the light of facts similar to those postulated by Mr West, and actually upheld the Registrar's registration of the draft Deed of Transfer in the circumstances. The Simplex decision was applied in part and distinguished.

It is implied in Mr Lee's argument that, if the Court in the Kriel decision had, in the same circumstances, been approached by the Transferor and the Transferee, aggrieved by a rejection, by the Registrar, of documents tendered for registration, the Court would have upheld the Registrar's rejection of the documents. I do not agree because the specific reasons for the decision in the Kriel decision cannot be properly avoided, if not evaded, by a rejection of a draft Deed of Transfer.

Mr Lee is of the opinion that, similar to section 6 of the TPCA, a contract concluded in contravention of section 13 (1) of the AEA is voids ab initio. I am not aware of any decided case on section 13 (1) of the AEA. However, there are conflicting decisions on section 6 of the TPCA: In Kropman and Others N N O v Nysschen 1999 (2) SA 567 (T), at 576, the Court held:

"Having regard to the purpose of the legislation, which is clearly designed to protect those who will ultimately benefit from the trust, there seems no reason why a Court in exercising its discretion cannot retrospectively validate any such actions if the circumstances deem it fit to do so. ………

In the present matter the question of alienating trust property does not arise. The plaintiffs, in acting as trustees before being officially appointed, received the assets, including the claim against the defendant, and this was done for the benefit of the trust, and in the circumstances I am of the opinion that act should be approved and ratified."

Be that as it may, as set out earlier herein, on the clear facts postulated by Mr West in Power of executor, the Kriel decision is apposite and rules.

Finally, Mr Lee envisages an examination and/or lodgement of a Deed of Sale. If the purpose of such examination and/or lodgement is to verify the date of sale, which date of sale is reflected in the Power of Attorney to Pass Transfer, I have grave misgivings about the need for the said examination and/or lodgement, if regard is had to section 15 (3) read with Regulations 44 and 44A of the DRA, which section provides that: "A registrar of deeds shall accept…that the facts referred to in subsection (1)……have been conclusively proved: …………"

Thabo Nqhome
21 February 2007

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