The answer to the question as to when a deed or document lodged for registration at a deeds registry must be rejected for relodgement is not an easy one. However, it is submitted that there should be some hard and fast rules laid down, in order for the profession and the deeds registries to be on the same page.
Section 3(1)(b) of the Deeds Registries Act 47 of 1937 (the Act) provides in this regard as follows:
“……… and after examination reject any such deed or other document the execution or registration of which is not permitted by this Act or by any other law, or to the execution or registration of which any other valid objection exists ……..”
This provision is every wide and this being the reason why a directive was issued, as far back as 1961, to shed more light on what will entail a valid rejection. The following is an extract from CRC 1 of 1961:
“Deeds will be rejected where one of the following objections has been raised:
- The names of parties are wrong in any respect, whether a minor discrepancy or not (see also RCR 36 of 1954).
- Errors in the description of properties.
- Titles not being produced.
- Causa or date of transaction is not disclosed.
- Extending clauses incorrect.”
The above is not all encompassing and for that reason it is deemed necessary to give some further guidance. The following notes should also be regarded as rejection notes:
- Any full initialing required in powers of attorney or consents.
- Errors in affidavits, requiring the affidavit to be redrawn and the oath re done.
- The retyping of pages in deeds (inclusive of bonds).
- The retyping of any page of a power of attorney or consent.
- The lodgement of further required documentation/proof for registration purposes.
- The providing of false certificates by conveyancers.
- Any prohibiting interdict / caveat.
- All pages of Powers of Attorney must be fully initialed (RCR 18 of 1989).
- Draft bond to be initialed by all parties (RCR 26 of 2004).
- Falsification of signatures (RCR 26 of 2006).
- The wrong prescribed form was utilized.
- Conveyancer has not signed the preparation clause on the deed and power of attorney.
The reason why a deed must be rejected when pages are retyped or new documentation lodged, is because the pages or new documentation must be re examined by the junior examiner, senior examiner and monitor. These checks and balances are imperative for the integrity of our deeds registration system. In the same vein, any amendment requiring full initialing can never be dealt with as a “prep note” as the deed, as with the retyping of pages, must leave the deeds registry for the initialing or typing to be done.
The question might now be posed as to when is full initialing required and when will a conveyancers certificate suffice. The following should be a sound guideline:
Full initialing by the executing party, witnesses and possibly the preparer will be required for the following:
- The amendment of an error in the names, identity number, registration number or marital status of the transferor, mortgagor, applicant or consenting party.
- An error in the date of the transaction.
- An error in the property description with regard to an erf number/section number or the portion number of an erf, agricultural holding or farm.
- An error in the purchase price.
- An error in the amount in a mortgage bond, inclusive of the cost clause.
- An error of a bond number in a consent.
- An incorrect causa.
- Incorrect conditions created or conditions not created or not inserted.
See in this regard RCR 15 of 1988 as confirmed by RCR 10 of 2004.
A certificate from a conveyancer may be accepted on a power of attorney if the error relates to:
- A spelling error in the name of a township or farm description, for example if the property is described as Erf 108 Fort Hare instead of Erf 108 Fort Hare Extension 21.
- An error in the registration division or province in which the land is situated.
- An error in the extent of the land, unless the remainder is being transferred.
- An omission of the title deed reference or an error in respect thereof.
- An error in the names, identity number, marital status or description of the transferee(s) or bondholder(s). This error should actually be rectified with a certificate from the preparer or amended with initialing by the preparer, as he/she is the person who has assumed the responsibility for the correctness thereof. If, however, the error in the names of the transferee is of a material nature, for example Fourie instead of Van der Merwe, such rectification must be fully initialed.
- Where the first page of a special power of attorney, consent, application or of an affidavit is retyped, the power of attorney must be re executed or a new affidavit done. Full initialling will not suffice (see RCR 29 of 2006).
- Non material amendments on an already executed power of attorney, consent or affidavit with the preparers initials should not be permitted as the documents are already executed. A certificate by a conveyancer must be insisted upon, not necessarily the preparing conveyancer, unless it is one of the responsibilities assumed in terms of regulation 44A of the Act.
- Where a power of attorney, consent or affidavit is lodged for examination, conveyancers more often than not request the parties to initial fully next to all relevant clauses of the document. This practice should be frowned upon and should be discontinued with immediate effect. Should such initials be disclosed, the examiner when examining the document concerned should circle the initials and indicate that such initials were effected prior to the request for further full initialing of a later material error.
- With regard to errors in transfer duty receipts, the provisions contained in CRC 9 of 2009 must be adhered to and a certificate in certain instances from a conveyancer will not be acceptable.
The rejection of a deed or document will always be a very contentious issue, but given the above guidelines it is trusted that we will all now be on the same page. It must, however, be mentioned that the above list is by no means exhaustive and the Registrar, and not the examiner, will always have a discretion in this regard.
Head of Deeds Training