Application of Section 4(1)(b)

It is submitted that the provisions of section 4(1)(b) of the Deeds Registries Act, 47 of 1937 are being misused and abused. Nobody can claim that he/she does not err, but the number of errors presently occurring in deeds and documents is ridiculous. If one keeps in mind that conveyancers are paid a fee to perform their task, the deeds office is paid a registration fee, and government levies a tax for the acquisition of immovable property, errors in deeds and documents should be minimal.

That the registered owner of immovable property held under a title deed in which a registration error occurs, must on rectification of the error again pay the conveyancer a fee, and the registrar of deeds a further registration fee, boggles the mind. It is submitted that the conveyancing fraternity is the only business in which the more mistakes are made, the more income is generated. Shouldn't these registration errors be corrected free of charge, given the fact that the first time round, fees were paid for a correct deed? Don't clients obtain any guarantee from the profession or the deeds office, similar to that received when buying a car? What is your opinion in this regard?

Furthermore, the affidavits for the rectification of errors would appear not to be the appropriate document to rectify an error. It has previously occurred that, in one deed, the status of the parties was changed three times, on three different occasions, each time by making an oath as to the true and correct state of affairs.

Section 4(1)(a) of the Deeds Registries Act, 47 of 1937, allows a registrar of deeds to require proof of any fact. Given this provision, conveyancers should be urged to lodge the identity document, marriage certificates, etc., to prove the correct state of affairs.

Whether the rectification in terms of section 4(1)(b) has the effect of transferring a real right is something that will be addressed at a later stage in this journal.

Published with permission from SADJ

Reader Comments:

karen 18/08/2006:

Fully agree - why should the client pay for a conveyancing error - then on the other hand the client are asked at the offices whether their personal details are true and correct - surely some fault should be with the client

JE STEYL 18/08/2006:

It is human to err or so they say. To only blame the Conveyancers for mistakes on Deeds is perhaps a bit short sighted. I have had the opportunity on numerous occations to rectify incorrect names/surnames or to insert omitted second or further names. On many occations it was due to the fact that the Applicant had one or more Identity documents or that the spelling of the names/surname on the marriage certificate differed from the spelling on the identity document.

The Conveyancer who initially drafted the "incorrect Deed " only saw one document and now the other document/s with different information surface. Clients are also to blame -they are the ones signing the Affidavits regarding their personal details that will appear on the Deeds. I am now busy with an rectification where the applicants' husband with whom she was married in community of property died prior to registartion of transfer, but she omitted to inform the Conveyancers. Not only do we have to rectify the status on the Deed, but also the spelling of the surname, as the spelling contained in the identity document appears to be incorrect.

Surely I cannot be expected to attend to this for free!

eugene peyper 18/08/2006:

Please remeber that examiners at the deeds Office are supposed to check the documents as well. Very often a mistake is registered and the conveyancer then has to take the rap alone.

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