Sectional Titles

PCL – a response

  1. I refer to the judgements in the PCL Trust case, attached to PCL Trust ("the article"), and the Dolphin Whisper case, referred to in the PCL Trust case and agree that there is no express provision in the Sectional Titles Act, 1986, (Act No. 95 of1986), as amended, ("the STA"), in terms of which a Registrar of Deeds is obliged to approve or disapprove of sectional plans of extension. Actually, my view is that such obligation is not even implied therein at all. Further, it is my considered opinion that section 25 (13) of the STA does not expressly or impliedly provide for the erection and division of the building or buildings into sections in any manner whatsoever other than strictly in accordance with the documents referred to in section 25 (2) of the STA.

  2. A Registrar of Deeds is, in my opinion, duty bound to examine an application for the registration of a sectional plan of extension and to reject it if it deviates from, or does not conform to, the documents referred to in section 25 (2) of the STA. I hasten to clarify that, in the exercise of such duty, a Registrar of Deeds does not purport to determine the existence or otherwise of the changed circumstances referred to in section 25 (13) of the Act.

  3. Section 3 of the STA provides that: "Save as is otherwise provided in this Act or any other law or the context otherwise indicates, the provisions of the Deeds Registries Act shall, in so far as such provisions can be so applied, apply mutandis mutandis in relation to all documents registered or filed or intended to be registered or filed in a deeds registry in terms of this Act." (emphasis added).

  4. According to Regulation 5 (2) (a) (vii) of the STA, a draft sectional plan shall consist of, amongst other things, a sheet containing "a caveat, if a developer should reserve the right under section 25 of the Act to erect a further building or buildings to horizontally or vertically extend an existing building" (emphasis added).

  5. Section 3 (1) (w) of the Deeds Registries Act, 1937 (Act No. 47 of 1937), as amended, ("the DRA") provides that: "The registrar shall, subject to the provisions of this Act - record all notices, returns, statements or orders of court lodged with him in terms of any law" (emphasis added). It is noteworthy that the caveat referred to in paragraph 5 above is the latter notice.

  6. Attention is drawn to the decision in Reeskens v Registrar of Deeds 1964 (4) SA 369 (N) at 371 in which it was stated that:

    "There was some argument before me as to the powers of the Registrar of Deeds. Having regard to the view which I take of the matter, it is unnecessary to deal therewith, save to say that it is clear from sec. 3 of the Deeds Registries Act, 47 of 1937, that he has very considerable and onerous duties, and it is his duty, inter alia, to examine all deeds submitted for execution or registration, to reject any such other deeds or documents, the execution of which is not permitted by the law, or to the execution or registration of which other valid objection exists.

    Quite apart from the numerous duties set out in the section, it is trite to say that a deeds registry is one involving an exactitude of work, and the exact description of all land transactions and mortgages; otherwise it would virtually be impossible to ascertain the true state of land or bonded dealings in South Africa" (emphasis added).

  7. Attention is drawn to page 14-15 of the Fourth Edition of "Jones Conveyancing in South Africa", where it is stated, about the powers given to a Registrar of Deeds under section 4 (1) of the DRA, that: "However, if documents lodged with him indicate that there is every likelihood that the sale was not valid at law and binding and consequently could lead to the registration of a voidable title , he is justified in refusing registration and referring the parties to the court to settle the judicial matters involved: see Breytenbach v Frankel & another 1913 AD 390."

  8. Section 7 (2A) of the STA, provides that: "The Surveyor-General shall not be responsible for investigating the correctness or accuracy of any document submitted to him or her in terms of subsection (2) or section 21, 24 or 25" (emphasis added).

  9. An interpretation, according to which a deviation from section 25 (2) of the STA is permissible under section 25 (13) of the STA, is fraught with serious problems and indefensible:-

    1. The purpose of the documents referred to in section 25 (2) of the STA would easily be undermined and made ridiculous.

    2. The expressed obligation in section 25 (13) of the STA to strictly comply with section 25 (2) of the STA would be rendered nugatory.

    3. A deviation, as such, cannot be an exercise of "a reserved right referred to in subsection (1)", as contemplated in section 25 (13) of the STA, but a violation of its integrity and a circumvention thereof.

    4. If regard is had to the fact that the documents referred to in section 25 (2) of the STA form part of a registered sectional plan, the contents thereof are, and remain, a harsh reality unless the registered sectional plan is cancelled by the Court, as provided for in section 14 (8) of the STA, or such registered sectional plan is altered or amended, as provided for in section 14 (1) of the STA.

    5. The changed circumstances referred to in section 25 (13) of the STA are only intended to provide a defence, in terms of the adage lex non cogit ad impossibilia (the law does not compel one to do the impossible), to an application to the Court for an order for specific performance in the form of strict compliance.

    6. It is highly inconceivable, that it is intended by section 25 (13) of the STA, that purported changed circumstances are expected to be considered by the Court after "completion of the relevant unit, as provided for in section 25 (5A) (a) of the STA, approval of the sectional plan of extension by a Surveyor-General, in terms of section 25 (8) of the STA, and registration of the sectional plan of extension by a Registrar of Deeds, in terms of section 25 (11) (a) of the STA, and that, after so much water has flowed under the bridge, "the Court may order proper compliance with the terms of the reservation…."

    7. The protection, to the purchasers of sections in a scheme, arising from the obligation, placed on a developer or a body corporate by section 25 (14) of the STA, to disclose the right reserved in terms of section 25 (1) of the STA "in the deed of alienation to every purchaser of a section in the scheme concerned", would be considerably weakened.

    8. Undesirably, the existence or otherwise of changed circumstances would be uncertain and the registration of the sectional plan of extension would be precarious, unless and until a disgruntled owner, who could afford the costs thereof, made an application to the Court under section 25 (13) of the STA. This uncertainty is not different from that about which Bertelsmann, J, said in MM v MN and Another, 2010 (4) SA 286 (GNP) at paragraph 32 on page 292: "The legislature certainly did not intend to create a morass of uncertainty."
Thabo Nqhome
01 December 2010


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