Let me make matters clear on my view of the Registrar’s Conference:
1. I am fully aware that the resolutions are not law. I clearly stated so in my comment in the article Registrar's Conference Resolutions 2014;
2. I understand that registrars are requested to abide by the resolutions for uniformity of of practice. Problem is, what if the resolution is patently wrong? Conveyancers are then expected and in fact forced to comply therewith. Why should this be the situation? A mechanism must be found to short circuit such resolutions other than having to wait for the next conference to rectify the situation;
3. The fact that there is representation of the profession becomes a joke when such representatives and others involved, such as the Property Law Committee, Law Society of Cape of Good Hope, is given the draft resolutions with strict instructions not to distribute them to anybody else. Since 2011 this has been the case, and when someone other than a member of the Property Law Committee dared to comment on some of the resolutions a Salem type of witch hunt was waged to find out from whence he obtained the draft resolutions. What good does that sort of restricted distribution do and how are the representatives supposed to obtain inputs from their constituents? Even if no comments are forthcoming from the wider conveyancing fraternity after having been given the draft resolutions, then so be it. But they must be given the opportunity to make inputs.
The resolutions affect not only conveyancers but also members of the public. In my opinion the current process is not in keeping with PAJA which may render them constitutionally invalid. That is what should and can be done to make things more transparent. Prior to 2011 comments were passed on to the representatives, but now it is not known who the representatives will be, when conference will take place etc. except for news accidentally(?) leaked. Not providing access to the resolutions to all concerned for inputs renders the representivity almost meaningless;
4. I have nothing against the idea of conference per se and agree that the resolutions serve to clarify deeds office practice and assist in the day to day practice of conveyancing. However, the kind of “secrecy” that was maintained over the past couple of years does not serve to inspire confidence in the process;
5. Yes it is necessary to appraise conveyancers of changes in practice but not all resolutions concern pure matters of practice. In some cases a point in law is decided and of necessity it will concern interpretation, which makes it imperative that different interpretations or opinions be invited. That may even be true for matters concerning true practice considerations where all parties may make workable solutions to possible problematic practices in the deeds offices. Point is, what was the reason for the exclusiveness? If one considers that the entire process is conducted by members of the legal fraternity, and I include Chief Registrar and the deeds offices in this and the current situation regarding transparency in South Africa, how could that step even have been contemplated, never mind put into operation?
I agree, how can we practice effectively and abide by the resolutions if do not know the resolutions, it does not make any sense.
I reiterate that the office of the CRD has at all times been as transparent as possible to make the resolutions public. They are published on Ghost Digest, published by Butterworths, provided to all the Provincial Law Societies as well as the LSSA. Seminars are presented throughout the country discussing the Resolutions taken. What more can be done !!
I am sorry but I disagree with Mr. West. I stand by my argument. If "....everybody involved in conveyancing and notarial practice must take cognizance of the resolutions....." are not given the opportunity in advance to comment or make inputs on the proposed resolutions, there cannot be said that the process was transparent. If these persons are informed ex post facto what resolutions were made, where exactly was the transparency? This amounts simply to everyone being dictated to - these are the resolutions: now comply!
By the time the resolutions are published in GhostDigest and by Butterworths, it is a fait accompli. It is essential that consultation happens BEFORE the conference to achieve transparency. Now it is a matter of dictating terms. In my humble opinion the way the matter is handled now - with most of the people who should be consulted about the proposed resolutions excluded from the process - is not conducive to transparency, quality of consideration of the proposed resolutions and renders the process suspect. The fact that few and even no comments are received from the wider conveyancing community is immaterial. The proposed resolutions should be available to all for inputs.
I will conclude by asking the Question: " Who is all? " as referred to by Mr Lee. Surely if inputs and comments are requested from all four Provincial Law Societies and the LSSA, it is incumbent on them to disseminate it to "all' for inputs and comments?