Paragraph 3.3.6 of CRC 16/1998 provides a principle that: “A situation whereby different persons hold different properties under the same title is unacceptable. Therefore, if all properties held under a title deed are not to be transferred to the Authority, a certificate of registered title must first be obtained.” (emphasis added). I have been informed that:
(i) the source of the afore-mentioned principle (“the principle” is the last proviso to section 16 of the Deeds Registries Act 47 of 1937 (“the DRA”) and
(ii) the principle has been re-iterated in CRC 3/2000 and CRC 1/2002.
However, the last proviso to section 16 of the DRA (“the proviso”) provides, in clear and unequivocal terms, for the registration of transfer by endorsement “where the State acquires all the land held under any title deed, ……., or where a local authority ………acquires all the land under a title deed by any other such authority ………..” only.
Moreover, there is no requirement in the proviso to obtain a CRT. In any event, since a CRT can only be applied for by the registered owner of a property, a requirement to obtain a CRT would entail the co-operation of the registered, divested, owner and, thus, undermine a vesting statute, such as section 32 (2) of the South African Maritime Safety Authority Act No. 5 of 1998, which does not require the co-operation of the registered owner. In some cases, the divested registered owner would have been abolished – refer, for example, to section 13, read with section 14 (2) of the Housing Act 107 of 1997.
Further, attention is drawn to the introductory paragraph of section 16 of the DRA, that: “Save as otherwise provided in this Act or in any other law……..” Therefore, regard must be had to the relevant provisions of the DRA or any other law.
Finally, attention is drawn to the prevailing confusion, whereby:
(i) the principle requires the issue of a CRT before registration of a transfer,
(ii) RCR 9/2015 requires that a CRT be issued simultaneously with a registration of a transfer and
(iii) CRC 1/2016 requires that a CRT be issued subsequent to a registration of a transfer.
On the basis of the afore-going, I submit that:
(i) the last proviso to section 16 of the DRA cannot properly be regarded as a valid basis for the principle,
(ii) the principle falls outside of the powers of a Chief Registrar of Deeds and, therefore,
(iii) the principle should be revoked.
Thabo Nqhome
Consultant
Diana Mabasa Inc.
Johannesburg
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