Section 99 of the Deeds Registries Act 47 of 1937 (the Act) is used as a tool to threaten deeds office examiners to exercise care and diligence in carrying out their examination duties. However, to prove that an examiner acted mala fide is almost impossible and for that reason the section was very seldom or never applied.
The Deeds Registries Regulation Board in 2012 proposed to amend section 99 to read as follows (amendment in bold):
“99. Exemption from liability for acts or omissions in deeds registry. –
No act or omission of any registrar or of any officer employed in a deeds registry shall render the Government or such registrar or officer liable for damage sustained by any person in consequence of such act or omission: Provided that if such act or omission is mala fide or if such registrar or officer has not exercised reasonable care and diligence in carrying out his or her duties in connection with such act or omission, the Government shall be liable for the damage aforesaid: Provided further that the registrar or officer guilty of such act of omission, shall be liable to make good any loss or damage resulting therefrom to the Government if such act or omission was mala fide, or if such registrar or officer did not exercise reasonable care and diligence in carrying out his or her duties in connection with such act or omission."
The proposed amendment will have the effect that not merely mala fides needs to be proved, but care and diligence will also be a deciding factor to determine whether an examiner can be held liable for costs in his/her personal capacity.
This proposed amendment will have dire consequences for deeds examiners, and heed should be taken.
Head of Deeds Training