It is common knowledge, and Registrars and their examination staff regularly express the sentiment that a Registrar is “autonomous” and not bound by Registrars Conference Resolutions (RCRs), Chief Registrar’s Circulars (CRCs) or Legal Opinions by the Chief Registrar of Deeds and it is with a sense of uneasiness that one became aware of a growing tendency amongst Registrars of Deeds, their Deputies and Assistants, to overrule or even worse, ignore RCRs and CRCs. In certain instances the Registrars or their Management do not even inform staff of the latest Conference Resolutions or make it available to their examiners. This tendency became so bad that the Chief Registrar was forced to propose amendments to the Deeds Registries Act 47 of 1937 (the Act) to compel Registrars to implement practice and procedure directives.
However, with or without legislation to enforce compliance, a unilateral decision by a Registrar to overrule or ignore RCRs or CRCs without consulting or even informing the Chief Registrar of Deeds or the Legal Fraternity could have severe repercussions (see the letter on the autonomy of the Registrar of Deeds in the De Rebus of December 2006 and April 2007). It is therefore of paramount importance that we, once again, look thoroughly at the Registrars’ “autonomy”.
Jones, in his book “Conveyancing in South Africa” (fourth edition), chapter 2 page 21, says that: “A registrar of deeds is autonomous in legal matters. Naturally, he might consult the Chief Registrar of Deeds or the State’s legal advisor, but he is not bound by the opinions of either.” Silberberg and Schoeman’s “The Law of Property” (fourth edition), chapter 10, also mentions the fact that the “Chief Registrar of Deeds cannot overturn the decision of any Registrar. The court is the only institution with the power to reverse a decision of the Registrar.” This autonomy emanates from his duty in terms of section 3(1)(b) of the Act to examine all deeds and documents submitted to him for execution or registration and after examination reject any such deed or document the execution or registration, which is not permitted by law.
Jones also mentions that although a Registrar of Deeds is not considered a judicial officer his duties have been described as “semi judicial” and like a “judicial officer” a Registrar of Deeds in his examination of deeds and documents, must hold “a kind of court” to weigh the evidence, the deeds and documents, submitted to him and in the light of the law decide whether or not to register it. In exercising this “semi judicial” discretion a Registrar of Deeds is required to exercise great care, as there is no automatic review of his decisions. In In re Estate Black 1918 CPD 603 Searle J remarked: “…as regards judicial matters he must exercise his discretion in a reasonable manner …”
In Legalbrief Today, dated 13 April 2007, it was reported that the Scorpions have asked the Cape High Court to order a regional magistrate to list the points of law that led to his acquitting former Western Cape Premier Peter Marais of corruption in 2006. The unit needs the document to launch an appeal against the acquittal, and the finding that co accused David Malatsi was not guilty on one of the two charges of corruption that he faced. In the application, senior Scorpion prosecutor, Bruce Morrison, said Belville Magistrate, Andre le Grange, had committed ‘a gross irregularity or clear illegality’ by refusing to supply a document setting out questions of law Le Grange considered in coming to his ruling, and his decisions on them.
It goes without saying, that a Registrar of Deeds, in the light of the above, will always provide authority and/or good reasons (“the points of law”) in the form of a note or notes on the deed or document, for his decision to reject such deed or document. For as much as he is autonomous in his decision to reject a deed, which does not comply with law, it is also his duty to provide authority and/or good reasons for his actions. Is this not the “judicial” way of exercising discretion in any event, even more so in the light of the Promotion of Administrative Justice Act?
Section 2(1)(a) of the DRA provides for the appointment of a Chief Registrar of Deeds who “shall … exercise such supervision over all the Deeds Registries as may be necessary in order to bring about uniformity in their practice and procedures.” (Once again, refer to the letter in De Rebus of December 2006 and April 2007). In an effort to comply with his statutory duty to “bring about uniformity” the Chief Registrar of Deeds makes use of Registrars Conference Resolutions, Chief Registrar’s Circulars and Legal Opinions. Silberberg and Schoeman’s “The Law of Property” (fourth edition), chapter 10, describes the function of the Chief Registrar of Deeds as “superintending the various deeds registries and of establishing uniformity in the practice and procedures of the registries by means of regular circulars.” So even without the intended amendments to the Act it is submitted that the Chief Registrar of Deeds has the duty and the supervisory power to enforce uniformity in practice and procedures.
A Registrar is autonomous in so far as it is within his sole discretion, which must be exercised in a reasonable manner, to reject a deed, which does not comply with law. But is it within his powers to overrule, or even worse, ignore CRCs or RCRs which have been issued by the Chief Registrar of Deeds in compliance of his statutory duty in terms of section 2(1)(a)? I suppose he can, and even have a duty to overrule, but only if the implementation of that CRC or RCR would have the result of constituting an invalid title or substituting applicable or existing legislation. The Chief Registrar of Deeds cannot “make” law he can only prescribes practice and procedures!
However, in overruling a CRC or a RCR the Registrar should give reasons, “list the points of law”, that led to his decision why he found it necessary not to implement a CRC or a RCR to, not only the Chief Registrar of Deeds, but to all his colleagues and the conveyancing fraternity. Does the same duty, to provide authority and/or good reasons for rejecting a deed or document, not apply when overruling a CRC, RCR or a Legal Opinion by the Chief Registrar of Deeds? His failure to give reasons could result in an invalid deed to be registered in other registries or, heaven forbids, in his own registry! The fact that CRCs and RCRs are published and therefore considered as “knowledge to the world” is even more reason to provide authority and reasons for the decision not to apply them. This would also comply with the provisions of the Promotion of Administrative Justice Act and could also stimulate debate amongst colleagues and the conveyancing fraternity in promoting uniformity.
In conclusion one can summarize as follows:
Property Law Specialist
Wel maak nie saak wie wat sê nie daar is niemand wat vir Kimberley aktekantoor kan voorskryf wat eintlik korrek is nie. Aktes word verwerp met die mees belaglike notas: bv. boedels - nagelate gade moet beskryf word as weduwee en/of wewenaar, "te veel parawe" en aktes word verwerp en vereis dat dit her-opgestel moet word weens 'n voorlegging wat gedoen was deur Allen West ten aansien van parawe - dit was nooit afdwingbaar gemaak nie maar soos die ondersoekers van Kimberley jou meedeel - ek kan eis wat ek wil en jy sal daaraan voldoen en so kan ons legio voorvalle noem van hoe transaksies net in Kimberley aktekantoor alleen vertraag word weens omtrede verwerpnotas.
Het nou al geleer dat as jy na Kimberley stuur, moet jou dokumente opgestel word soos in die "oer tydperk". Die enigste vereiste wat nog nie gestel was nie is om iemand te noem "oujong kêrel" of "oujong nooi" want dit kan sekerlik in ons nuwe Demokratiese Stelsel beskou word as diskrimerend.