Regulation 44(2) of the Deeds Registries Act 47 of 1937 and regulation 16B(2) of the Sectional Titles Act 95 of 1986 provide that any material alteration or interlineations in any power of attorney, application or consent must be initialled by the person who prepared such document. A material alteration is not defined and is a moot point. It can, however, be accepted that those facts for which the preparer takes responsibility must be initialled by such preparer.
A registrar of deeds should, however, require that certain alterations or interlineations on a power of attorney, consent or application are to be fully initialled, i.e. by the person executing such document, the witnesses and in certain instances by the preparer of the document (see in this regard regulation 20(4) read with RCR 15 of 1988 and RCR 10 of 2004).
Full initialling 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.
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 initialled.
- 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 Act 47 of 1937.
- 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 alteration.
Will it be acceptable to the Deeds Office if the spelling of a transferee's name (i.e. Nathalie in stead of Athalie) in the TRANSFER DUTY RECEIPT be rectified with a certificate from the preparer or initialling by the preparer? (to be registered in the Deeds Office at Cape Town)?
Please see CRC 9 of 2009
If a sellers names are switched around in the Title Deed but there is no spelling error, should we still do a Section 4(1)(b) or can we do a Conveyancer certificate?
It is an error in registration thus a section 4(1)(b) application is peremptory.
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