RCR 9/2015 (“the RCR”) provides, amongst other things, as an alternative, with regard to the registration of transfer of immovable properties in terms of Item 28 (1) of Schedule 6 to the Constitution of the Republic of South Africa, 1996, (“the Constitution”), that, “where different properties are held under one title deed and same need to be transferred to the National Government and the Provincial Government”, (emphasis added), “the title deed must first be endorsed in terms of Item 28 (1) and simultaneously a certificate of registered title in terms of section 36 of Act 47 of 1937 must be issued.” (emphasis added). However, CRC 1/2016, (“the CRC”), provides, in the same circumstances, that a certificate of registered title must be issued subsequent to the said endorsement.
Since, unquestionably, both the RCR and the CRC are binding on all Registrars of Deeds - refer to paragraphs 3.1 to 3.3 of CRC 10/2010 - the afore-mentioned material conflict does not “promote uniformity in all deeds registries throughout the country”, as anticipated in paragraph 3.2 of CRC 10/2010, and causes undesirable prejudice, particularly to innocent third parties. Worse, notwithstanding the clear provisions of both the RCR and the CRC, according to the practice in one Deeds Registry, the application of the RCR extends also to situations where transfers by endorsement are not in terms of Item 28 (1) of the Constitution and where the relevant transfer by endorsement would not result in the transferee being either the National Government or a Provincial Government.
Whereas to obtain a Certificate of Registered Title under section 36 of the Deeds Registries Act 47 of 1937 (“the DRA”) is optional, it is noteworthy that both the RCR and the CRC purport to convert such option to an obligation. It is submitted that such conversion is the Legislature’s prerogative and is not the exercise of supervision over Deeds Registries by the Chief Registrar of Deeds, as contemplated in section 2 (1) (a) of the DRA.
In view of the afore-going, it is strongly suggested that both the RCR and the CRC be suitably amended or withdrawn.
Thabo Nqhome
Consultant
Diana Mabasa Inc.
Johannesburg
Reader Comments:
The mere fact that such an article is necessary speaks volumes about the ill-considered change to the DRA making conference rulings binding on registrars of deeds. Conference rulings should never be binding. They should have persuasive authority only - as historically they always were. The sheer number of conference rulings that are withdrawn or amended annually is proof enough. Attempting to achieve uniformity of practice in all deeds registries is delusional, to say the least, because of different legislation in different provinces, and also well established historical differences in practice in the different registries.
The qualification of conditions of title - especially with consolidations - is just one example of different practices. There are others too. Binding a registrar of deeds to a conference ruling (especially when the registrar disagrees with it, or where there are sound reasons for departing from it) reduces that registrar to a mere administrative deeds clerk who has no authority to exercise the authority and discretion which, as a quasi judicial officer, that registrar is obliged to exercise.
I confidently predict that the first conference ruling that is challenged in the Constitutional Court will get the AB de Villiers treatment - struck for six over the boundary.
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