Before its amendment by Chief Registrar’s Circular No.1 of 2016 (“CRC 1/2016”), Chief Registrar’s Circular No. 7 of 1994 (“CRC 7/1994”) set out, in all of its 7 paragraphs, the procedure to be followed in the registration of transfer of immovable properties in terms of section 2 (a) of section 239 of the Constitution of the Republic of South Africa, 1993, (“the Interim Constitution”). However, after CRC 7/1994’s amendment by CRC 1/2016, paragraph 6 of CRC 7/1994, sets out the procedure to be followed in the registration of transfer of immovable properties in terms of Item 28 (2) of Schedule 6 to the Constitution of the Republic of South Africa, 1996, (“the 1996 Constitution”), resulting in an awkward, if not confusing, Constitutional blend. Therefore, it is suggested that (i) the entire CRC 7/1994 be properly amended or withdrawn and/or (ii) if necessary, a separate CRC be issued, dealing exclusively with the registration of transfer of immovable properties in terms of Item 28 (2) of Schedule 6 to the 1996 Constitution.
Paragraph 4 of CRC 7/1994 provides that: “In die lig van die bepalings van artikel 20 van die Registrasie van Aktes Wet, 1937 (Wet No. 47 of 1937), en met inagneming van die bepalings van artikel 235 en 239 van die genoemde Grondwet, moet ’n registrateur van aktes homself vergewis dat oordag van onroerende eiendom deur die eienaar daarvan deskied.” (emphasis added). It is submitted that the effect of paragraph 4 of CRC 7/1994 is that a transfer, in terms of section 239 (2) (a) of the Interim Constitution, read with section 20 of the Deeds Registries Act, 1937, (“the DRA”), must be (i) by deed of transfer and (ii) effected by the registered owner of the property. This cannot be the position because (i) the transfer provided for in of 239 (2) (a) of the Interim Constitution is clearly a transfer by endorsement only, which transfer cannot be effected by the registered owner, if regard is had to the definitions of “owner” and “registered” in section 102 of the DRA, whose registered ownership has been ousted by the vested ownership – refer to the third sentence of the second paragraph, under the heading “II LAND REGISTRATION IS INCOMPLETE”, on page 27 of the 4th Edition of “Jones Conveyancing in South Africa”, by H S Nel, where it is stated that: “This vested ownership ousts the registered ownership ……..” . In any event, it cannot be expected that, if the registered owner of an immovable property is, for example, a former Homeland Government, the latter must effect the transfer.
Paragraph 5 of CRC 7/1994 provides that: “’n Sertifikaat bedoel in subartikel 2(a) van artikel 239 moet, tesame met die betrokke titelakte(s), in ’n aparte omslag ingedien word en verkry ’n BC-kode.” I am unable to agree because the code for a transfer by endorsement is a T.
Paragraph 6 of CRC 7/1994 provides, amongst other matters, that transfers, in terms of Item 28 (2) of Schedule 6 to the 1996 Constitution, may be registered in terms of section 31 of the DRA. It is submitted that this cannot be so because section 31 of the DRA does not, and was not intended to, apply where the manner of registration has been stipulated, such as is the position with section 239 (2) (a) of the Interim Constitution and Item 28 (2) of Schedule 6 to the 1996 Constitution, that is, transfers by endorsement.
In conclusion, it is submitted that, in the absence of appropriate legislative amendments to section 239 (2) (a) of the Interim Constitution and Item 28 (2) of Schedule 6 to the 1996 Constitution, paragraphs 4 and 6 of CRC 7/1994 ought to be withdrawn.
Thabo Nqhome
Consultant
Diana Mabasa Inc.
Johannesburg
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