Sufficient proof

It is trite law that the purpose of deeds registration is to record and protect the right of ownership and other lesser rights in land. The Deeds Registration System (eDRS) is a State repository for ownership records and relative lesser rights comprising various computerised and manual registers in terms of section 3(1)(y) of the Deeds Registries Act, 1937 (Act 47 of 1937). At times disputes arise between different parties challenging the existence or the veracity of each other’s land ownership; and in that instance the relevance of the title deed becomes an incontrovertible reality.

In extreme cases a dispute is escalated to a vindicatory claim by virtue of a legal action known as rei vindicatio in terms of which the person who claims ownership must pedantically produce the best evidence to his title before a court of law.

The bone of contention under such circumstances then circumnavigates around the exact nature of such best evidence, given the various forms in which the records of ownership are captured, and the fact that in some cases there is no registration of ownership.

The cardinal question therefore is whether the actual title deed or the data record (deeds printout) of ownership; or the land register entry of such ownership is admissible evidence that can be validly put up before a court of law in rei vindicatio proceedings or not.

In the case of Bowley Steels (Pty) Ltd v. 10 Sterling Road (Pty) Ltd and Another (2016/2461) (2017) ZAGPJHC 196 (28 June 2017) the court was seized with the question of admissibility of a “DeedsWeb” printout as proof of ownership. The Court held at paragraph 2 that:

“The best evidence of ownership of immovable is the title deed to it”…see Goudini Chrome v. MCC Contracts (Pty) Ltd (1992) ZASCA 186; 1993 (1) SA 77 A at 82. The applicant relied instead on a “DeedsWeb” printout. My concern herewith is that without more, one does not know the veracity of this document and its contents. The information obtained is hearsay in that the person responsible for extracting the information has not put up an affidavit. For example WinDeed, a similar resource to DeedsWeb I believe, has a disclaimer regarding its information which is gathered from suppliers and to this extent it indemnifies itself. See Sibango v. PPM Plumbing (Pty) Ltd 2016 JBR 0799 (GP) at para 20. However ownership has not been placed in issue and is effectively common cause. Nonetheless where evidence is put up in support of an allegation, it should be admissible, proper and save for good reason the best evidence”

It is patently clear therefore; that the best evidence to prove ownership of immovable property is a title deed.

However; while it may already be conceded that the above case law is dispositive of the legal question around proof of ownership, cognizance must be borne that proof by virtue of a title deed may not be feasible or relevant under certain circumstances as there are numerous instances where ownership of immovable property is not necessarily registered altogether, but is instead vested or endowed upon the owner by operation of law. Again in this instance the question of proof is still not dispositive; or rather the averment of proof by a title deed is not by any stretch of imagination unassailable.

Examples of circumstances where ownership validly passes without registration in the deeds office:

  • Marriage in community of property- It was held in the case of Rosenberg v. Dry’s Exor, 1911 A.D. that “ In vesting by marriage in community of property each spouse, without registration, automatically becomes the owner of an undivided half share of the other’s property;”
  • Vesting in an insolvent estate- whereby property vests by operation of law, without registration in a liquidator or trustee in the insolvent estate;
  • Vesting by Statute -e.g. where the ownership of roads and public places in a newly established township vest in a municipality without registration of a title deed;
  • Expropriation-whereby ownership automatically vests in the name of the expropriator upon service of the expropriation notice to the expropriatee in terms of sections 7(1), (4) and (5) read with section 8(1) of the Expropriation Act, 1975 (Act 63 of 1975).

In conclusion, although a title deed is the best form of evidence to prove ownership of immovable property as afore proffered; it is patent that the legal concept of “title” can be manifested and evidenced in numerous abstract statutory forms, to wit; where there is no registration of ownership in the deeds office.

Wiseman Bhuqa
Propconvey Diverse Solutions

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