Conference Resolutions 08(1)

The 2008 conference dealt with numerous and extremely important topics and procedures to be followed. As a result a total of seventy resolutions were taken, which resolutions will be effective from 2 January 2009. In this article twenty two of the resolutions will be discussed. The resolutions will be discussed for a variety of reasons, such as information purposes, the history behind a resolution and the effect of non-compliance. The resolutions that are not discussed should by no means be viewed as being inconsequential. As is the tradition of this article, a resolution will be quoted in full and then followed by a discussion.

2/2008 (RCR 37/2007) Property sold by executor

"RCR 37/2007 Act 66 of 1965 - Property sold by executor on death by fiduciary
Does conference agree that a section 42(2) of Act No. 66 of 1965 endorsement is all that is needed when an executor in the estate of a fiduciary sells and transfers immovable property, which is subject to a fideicommissum?"

Resolution:
A section 42(2) Act No. 66 of 1965 endorsement by the Master is necessary [provided the fideicommissary heirs have waived their rights]."

Resolution:
It is established practice that the executor in the estate of the fiduciary has the right in terms of the Administration of Estates Act No. 66 of 1965 to sell immovable property directly from the estate of the fiduciaries, provided the Master affords an authorisation in terms of section 42(2). The waiver by the fideicommissary heirs is not a prerequisite for the sale. (RCR 37/2007 is amended by the deletion of the words "provided the fideicommissary heirs waive their rights")

The office of the Master has taken the liberty of reflecting on conference resolutions that impact on the operations of the Master's office. The master has thus advised that the waiver by the FC heirs is not necessary, hence the amendment of RCR 37/2007.

4/2008 RCR 1/1991: Proof regarding erection of buildings

In RCR 1/1991 it was held that the sectional plan of extension may be registered subsequent to the lapsing of the duration of the right of extension relating to that scheme, provided the buildings have already been erected. What proof must be submitted to the registrar of deeds to prove that the building(s) were erected prior to the date of lapsing?

Resolution:
A certificate from the local authority that the buildings were erected prior to the date of the lapsing of the right of extension must be lodged.

Prior to this resolution, it was not certain as to which document must accompany an application for the registration of a sectional plan of extension in circumstances contemplated in RCR 1/1991. This matter is now settled once and for all.

5/2008 RCR 6.5/1999: Section 93 of Act No. 47 of 1937

In terms of Registrar's Conference Resolution 6.5/1999 a copy of Government Gazette must be lodged as proof for an application for a change of name, in terms of section 93 of Act No. 47 of 1937. Must this resolution still be applied?

Resolution:
RCR 6.5/1999 is confirmed.

A practice of using a certified copy of an identity document in support of a section 93 application surreptitiously took root in contravention of RCR 6.5/1999.

One would argue that there is absolutely nothing improper by using such a copy, but conference resolved not to endorse such practice because of the well-known issue of corruption involving identity documents. Thus, those who ingenuously introduced the practice of using a certified copy of an identity document are cordially implored to abandon it or continue with it at the risk of having their deeds duly rejected.

12/2008 RCR 35/2005 and RCR 2/2006: Restriction on alienation request for a consent when mortgaging land. Is the ruling peremptory or merely directory?

Resolution:
RCR 35/2005 as amended by RCR 2/2006 is confirmed and must be applied uniformly.

It came to light that there are some examiners that do not apply RCR 35/2005 and RCR 2/2006. It is therefore advisable that conveyancers duly comply or run the risk of having transactions rejected and examiners should also note that, with non- enforcement, they are running the risk of incurring personal liability in terms of section 99 of the DRA.

14/2008 RCR 31/2006: Abbreviation of registration number companies, close corporations, trusts, etc.

The following abbreviations are used in deeds and/or documents: Registration number / Reg number / Registration No / Nr / No / Nr / Registrasienommer / Reg No. What is acceptable?

Resolution:
Abbreviations with regard to registration numbers of companies, close corporations, trusts, etc. are not permissible in deeds and documents tendered for registration.

The fundamental question that arises in this instance is whether the use of abbreviations is an error that justifies rejection or not. It is my respectful submission that rectifying such defects does not justify rejection of deeds as such defects are not material to the relevant transactions. If my view is found not to be correct, then those who make such a finding are duly requested to proffer the relevant education.

George Tsotetsi
Office of the
Chief Registrar of Deeds

Republished with permission from SA Deeds Journal