Response to substitution

I endorse the point made in Substitution of the appearer (the article) to the effect that the substitution permitted by RCR 18/2009 is legally indefensible. In my opinion, the substitution is, specifically, in direct conflict with section 20 of the Deeds Registries Act 47 of 1937 ("the DRA").

Section 20 of the DRA provides that: "Deeds of transfer shall be prepared in the form prescribed by law or by regulation, and, save as in this Act or any other law provided or as ordered by the court, including a court with the necessary jurisdiction established in terms of the Magistrates' Courts Acts, 1944 (Act No. 32 of 1944), in respect of deeds of transfer executed by the registrar, shall be executed in the presence of the registrar by the owner of the land described therein, or by a conveyancer authorised by power of attorney to act on behalf of the owner" (emphasis added).

It is submitted, therefore, that a substitute must derive his/her authority "to act on behalf of the owner" from a power of attorney. The authorisation of a substitute can, conveniently, be endorsed by the relevant grantee on the Power of Attorney to Pass Transfer or, alternatively, be granted by the same grantee in a separate Power of Attorney. Therefore, the visible (written) role of the relevant grantee is indispensable. Inevitably, the name(s) and surname of relevant grantee would be disclosed.

Thabo Nqhome
09 June 2010

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