DEPARTMENT: LAND AFFAIRSCHIEF REGISTRAR OF DEEDS

JUSTICE COLLEGE

Intestate Succession ofBlack Estates – A new Era

The Registerability ofContingent Usufructs andRelated Matters

N E W S L E T T E RM a r c h 2 0 0 5 • N o . 5

S o u t h A f r i c a n D e e d s J o u r n a l

SUUM CUNIQUE TRIBUERE

Mr. Sam Lefafa and Dr. Nozizwe MakgalemeleChief Registrar of Deeds Deputy Director General

NEWS

• Beware of turning a blind eye!! . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

NEW LEGISLATION

• A Brief Overview in respect of New Legislation and an update on TheRegistrars’ Conference, 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 - 4

PROPERTY LAW UPDATE

• The Promotion of Administrative Justice Act, 2000 – The Impact on Examination of Deeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 - 7

• The Registrability of Contingent Usufructs and related matters . . . . . . . 7 - 8• Calculation of Stamp Duty: Duties of Public Officers . . . . . . . . . . . . . . . 8• Amendments to the Deeds Registries Act 47 of 1937 . . . . . . . . . . . . . . 9• New Schedule of Fees of Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 - 11• Clarity and Legibility of Deeds and Documents with reference to

Regulation 20(1) of the Deeds Registries Act 47 of 1937 . . . . . . . . . . . 12• Covert Sales and Donations in Re-Distribution Agreements . . . . . . . . . 13 - 14• Endorsement in terms of section 40 of the Administration of Estates

Act (Act 66 of 1965) Lodgement of bonds for disposal or consentof bondholder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

• Intestate Succession of Black Estates . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 - 17• May a Permission to Occupy serve as security under a Notarial

Mortgage Bond? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18• Section 13 of the Sectional Titles Act, 1986 and the Examination of

Deeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19• Subdivision of the Common Property in a Sectional Title Scheme –

Part II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 - 21

CASE LAW

• All the cases you must take note of and how to read a court case . . . . 22 - 27

RECENTLY PUBLISHED ARTICLES AND RESEARCH

• References to all relevant published articles and legal research . . . . . . 28 - 29

BOOKS

• A list of books relevant to the field of property law . . . . . . . . . . . . . . . . . 29

OTHER FEATURES

• Let us get to know our neighbouring registrars and their offices better . 30 - 32• Interview with Mr. Jodwana – A previous Registrar of the Ciskei Deeds

Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 & 26• Interview with Ray Kretzmann (Former Registrar of Deeds

Cape Town) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 - 34

Did you know? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 - 35

LETTERS TO THE EDITOR

• Attachment against fixed property – Beware the Judgment Creditor . . . 36 - 37• Response to Letters to the Editor on Sectional Title . . . . . . . . . . . . . . . . 37 - 38

ADVERTISEMENT

• LEAD: PRACTITIONERS’ GUIDE TO CONVEYANCING AND NOTARIALPRACTICE – Seventh Edition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

This being the first issue for 2005, it is trustedthat you have had a well-deserved rest overthe festive season and are all geared and

ready to approach the new year with all itschallenges.

From the outset, a word of congratulations to PogisoMesefo for his appointment as Registrar of Deeds,Pretoria.We all know that it is going to be a challengingtask, but knowing Pogiso he will take up his challenge,as he did as law lecturer, and make the best of it.

In the October issue, letters from an anonymousconveyancer were published to which Mr. GeorgeTsotetsi responded in detail in the previous issue.However, it has now come to the fore that the letterswere not from a conveyancer, but from Mr. OzzieWade of the Deeds Registry in Pietermaritzburg. Theletters were sent to the office of the Chief Registrar ofDeeds for comment. These concerns were alsoaddressed at the Sectional Titles Regulations BoardMeeting held during October 2004.

In this issue, interviews were held with two formerRegistrars, Mr. Jodwana and Mr. Kretzmann. Insubsequent issues of this Journal, we expect tointerview other former Registrars, to determine theirwhereabouts and what they are now doing aftertheir retirement.

This year’s challenge for deeds registries and theDepartment of Land Affairs is the implementation ofthe Communal Land Rights Act 11 of 2004. Theregulations are in the process of being drafted.

For all the persons who contributed to this issue, mysincere thanks and appreciation. Keep up the goodwork!

Allen West - Editor

CONTRIBUTORS

George Tsotetsi, Tania Shawe, Allen West,Marie Grove, Wiseman Bhuqa, P J Weideman,

Henry Lourens, Magda Deetlefs, Delcia Watermeyer, Warren Hamer,

Ozzie Wade, A Lombaard

Contributions may be sent to the Editor via e-mail or post:allenW@justcol.org.zaA S West, PRIVATE BAG X659, PRETORIA, 0001

The newsletter is also published in the Department of Land Affairs’website: dla.pwv.gov.za

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Contents Editorial

Allen West - Justice College (Editor) Alwyn van Jaarsveldt - UmtataGert Hattingh - Office of the Chief Registrar of DeedsJoanne Dusterhoft - King William’s TownIsaak Ngake - BloemfonteinMagda Deetlefs - VryburgHennie Geldenhuys - Office of the Chief Registrar of DeedsDudley Lee - Cape TownPogiso Mesefo - PretoriaZandré Lombaard - Justice College (Scribe)Marissa Greeff - Directorate: External CommunicationMarie Grove - Justice CollegeTania Shawe - PietermaritzburgAlan Stephen - JohannesburgLevina Smit - KimberleyGeorge Tsotetsi - Office of the Chief Registrar of DeedsGustav Radloff - Attorney MacRobert

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INTRODUCTION

This article provides a brief discussion of theCommunal Land Rights Act, 2004 (Act No. 11of 2004) and of a few resolutions of theRegistrars’ Conference, 2004.

THE COMMUNAL LAND RIGHTS ACT

This Act will come into operation on a date tobe determined by the President by procla-mation in the Gazette. The regulations to theAct are in the process of being drafted, and theAct will therefore impact on the deeds office atsome future date. As a Chief Registrar’sCircular will be issued in due course, only ageneral discussion is provided here.

The Act is designed to obtain tenure securityfor the benefit of persons and communitiesthat occupy or would occupy communal landin the areas to which the Act applies. Thus,communal land will vest in the name of acommunity and a ‘communal land right’ willvest in a person or persons. In order toaccomplish its objectives, the Act makesprovision for the endorsement of existing titledeeds to vest ownership of communal land ina community and the registration of what isreferred to in the Act as ‘a deed of communalland right’ to vest a communal land right inthe name of a person or persons. As regardscommunal land r ights, the Act makesprovision for the opening of a communal landregister. The communal land rights, subject tothe approval of the community, may beconver ted into full ownership. A ‘suitablyqualified official of the Department of LandAffairs’ may prepare the deeds that conveycommunal land rights.

It is worth mentioning that the Act will effectcertain amendments to the Deeds RegistriesAct 47 of 1937, with one such amendmentconcerning the definition of ‘Person’.

Finally, it is important to note that the mainintention of discussing the Act is to make thereader aware of the presence of the Act.

REGISTRARS CONFERENCE, 2004

The Registrars’ Conference was held from 17to 18 November 2004. The 2004 conferenceresolutions are all straightforward. I wil ldiscuss a few of them to highlight certainpractical aspects of the topics dealt with bysuch resolutions. I will first quote the relevantresolution in full and then discuss its practicalaspects.

RCR 1 OF 2004, RCR 8 OF 1969:EXPROPRIATIONS / RATESCERTIFICATES: (BLOEMFONTEIN ANDLEGAL SUPPORT)

In view of section 118 of the LocalGovernment Municipal Systems Act 2000 (ActNo. 32 of 2000) as amended, it appears thatthe abovementioned resolution can bewithdrawn. Expropriation transfers are nolonger exempt from the lodgement of aclearance certificate.

RESOLUTION

In terms of section 118 of Act No. 32 of 2000,read in conjunction with section 20 of theExpropriation Act 63 of 1975, a clearance isrequired for the registration of an expropri-ation transfer. RCR 8 of 1969 is herebywithdrawn.

In order to discuss this resolution, it is neces-sary to describe the circumstances that leadto the resolution.

Certain para-statals have expropriated cer-tain properties and attempted to register suchproperties in their name without lodging ratesclearance cer tif icates, relying on RCR8/1969. Therefore, the Conference wasrequested to review RCR 8/1969.

It must be noted that RCR 8/1969 washandled prior to the Expropriation Act cominginto operation and the Conference thusresolved that such a resolution cannot standin the face of the clear and unambiguous

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By: George Tsotetsi

Office of the Chief Registrar of Deeds

ABRIEF OVERVIEW IN RESPECT OF NEW LEGISLATIONAND AN UPDATE IN RESPECT OF THE REGISTRARS’

CONFERENCE, 2004

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provisions of section 118 of the LocalGovernment: Municipal Systems Act 2000(Act No 32 of 2000) and section 20 of theExpropriation Act, 1975.

RCR 18/2004 SERVITUDE OVERAGRICULTURAL LAND (JUSTICECOLLEGE)

Where a servitude over agricultural land is notdepicted on a diagram, but is described ingeneral terms, i.e. the route will bedetermined at a later stage, must the consentof the Minister, as contemplated in terms ofsection 6A of the Subdivision of AgriculturalLand Act 70 of 1970, be insisted upon?

RESOLUTION

The consent must be insisted upon or proofmust be provided that the provisions of ActNo. 70 of 1970 are not being contravened.

It has transpired that in some deeds offices,the consent of the Minister for Agriculture isnot insisted upon for the registration of aservitude in general terms over agriculturalland. This is not sound practice and should, inview of this resolution, be discontinued. It isworth mentioning that the mere fact that aroute for the relevant servitude is to bedetermined at a later stage is no justificationfor non-compliance with the provisions of Act70 of 1970. It must be noted, however, thatwith the advent of wall-to-wall municipalities,it is not easy to identify agricultural land.

In this regard, the Chief Registrar’s CircularNo. 6 of 2002 must be borne in mind. In otherwords, a letter from the Depar tment ofAgriculture confirming that the particular landis not agricultural land will also suffice, wherea servitude is to be registered over agri-cultural land.

RCR 19 OF 2004 CANCELLATION OFPERSONAL OR PRAEDIAL SERVITUDE(JUSTICE COLLEGE)

Where a personal or praedial servitude iscancelled, either in terms of section 68(1),section 68(2) or section 75(3) of Act No. 47 of1937, must the registrar of deeds insist on atransfer duty receipt or an exemptioncertificate?

RESOLUTION

Yes, a transfer duty receipt or an exemptioncertificate must be lodged.

A spurious argument that in cases of thisnature, a minimal transfer duty of ten rand isusually payable and that this does not justifythe trouble of obtaining a transfer dutyreceipt, has introduced practice of not callingfor the lodgement of a transfer duty receipt insome deeds offices. This practice constitutesa flagrant contravention of the provisions ofthe Transfer Duty Act 40 of 1949 and ought tobe discontinued. It is not within the power ofthe deeds office to disregard the law for flimsyreasons of expediency.

RCR 21 OF 2004 DIVORCE ORDERS(JUSTICE COLLEGE)

Should the divorce court order be insistedupon, where an owner who was formerlymarried out of community of property, orwhose marriage was governed by the laws ofanother country, and who is now in posses-sion of the land, is described as divorced orunmarried?

RESOLUTION

Yes, a divorce court order must be lodged todetermine whether the rights of third partiesare affected and whether the terms of thedivorce court order, where applicable, areadhered to.

Paragraph 2.2.3.2.1.3 of chapter 3 of theDeeds Registration Law Manual states asfollows: ‘If the person was married out ofcommunity of property at the time the landwas registered in his/her name, or if he/shewas a bachelor/spinster at the time that theland was registered in his/her name andthereafter he/she married out of community ofproperty and is still married out of communityof property at the time of divorce, the registrarof deeds accepts that the land registered inhis/her name is retained by him/her unlessthe contrary is proved.’

Although the above paragraph is silent abouta divorce order, one can legitimately draw thereasonable conclusion that it conveys themessage that a divorce order does not needto be lodged. This resolution has beenincluded in this discussion solely for informa-tion purposes.

From page 3

Section 33 of the Constitution of the Republic ofSouth Africa, Act 108 of 1996, reads as follows:

(1) Everyone has the right to administrativeaction that is lawful, reasonable andprocedurally fair.

(2) Everyone whose rights have been adverselyaffected by administrative action has theright to be given reasons.

(3) National legislation must be enacted to giveeffect to these rights and must -

(a) provide for the review of administrativeaction by a court or, where appropriate, anindependent and impartial tribunal;

(b) impose a duty on the state to give effect tothe rights in sub-sections(1) and (2); and

(c) promote an efficient administration.

HOW DID THE LEGISLATURE GIVE EFFECTTO THIS RIGHT?

The Promotion of Administrative Justice Act 3 of2000 (hereafter referred to as “AJA”) came intooperation on 30 November 2000 as a measureto give effect to the fundamental principles ofAdministrative Justice as envisaged in section33 of the Constitution: that is the right to admini-strative action that is lawful, reasonable, andprocedurally fair. Everyone has the right towritten reasons for administrative action thatadversely affects their rights.

The AJA applies to all Organs of State asdefined in section 239 of the Constitution 108 of1996. In brief, the stipulations of the Act requiretwo letters to be written as soon as an admini-strative action is anticipated that has thepotential of adversely affecting a person’s rights.This is based on the audi alteram partem rulewhich gives the applicant the opportunity to be

heard, and is a way of making sure that suchaction is procedurally fair. (Director, MineralDevelopment, Gauteng Region v Save theVaal Environment 1992 (2) SA 709 SCA).

WHAT IS THE PROCEDURE WHEN THEACTION IS CONSIDERED TO FALL WITHINTHE AMBIT OF THE AJA?

The procedure for the first letter/notice is set outin section 3(2)(b)(a) and (b) of the AJA:

“In order to give effect to the right to procedurallyfair administrative action, an administrator, sub-ject to sub-section (4), must give a person

(a) adequate notice of the nature and purposeof the proposed administrative action;

(b) a reasonable opportunity to makerepresentations;

This letter is structured in such a way that itcontains all the compulsory information as towho, what, when, where, why and how the actionwill be taken, and when, how, to whom andwhere representations should be made.

The second letter informs the person of theaction that was taken after considering all therelevant information and his/her right to writtenreasons. Adequate notice of the right to internalappeal and right to review is also given.

Sub-section 4(1) contains the very importantescape or safety measure that refers to the factthat if it is reasonable and justifiable under thecircumstances, an administrator may departfrom any requirements referred to in sub-section2. This measure may, however, only be usedunder exceptional circumstances. (This impliesthat you have to give reasons why you are notgoing to give reasons for the decision made!).THE EFFECT OF THE AJA ON THE DEEDS

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The Promotion of Administrative Justice Act, 2000

The Impact on the Examination of Deeds

By: Tania ShawePietermaritzburg

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From page 5

REGISTRY

The Deeds Registry, as administrator, fallswithin the definition of Organ of State, asmentioned previously, which effectively meansthat the AJA comes into effect whenever anexaminer makes the decision to reject a deed inaccordance with Regulation 45(7) Act 47 of1937.

Not every decision made by an administratorneeds to follow this procedure. It is onlynecessary if the decision (or failure to take adecision when one is required) amounts to anadministrative action. It is therefore necessary toknow what the requirements for an admini-strative action are.

Section 1 of the AJA gives a complicateddefinition of “Administrative Action”, but it can besummarized as follows:

• a decision;• of an administrative nature;• made by an organ of state;• in terms of an empowering provision that is

not specifically excluded by the AJA;• that adversely affects rights; and• that has a direct external effect.

These requirements are cumulative and all six ofthese have to be satisfied before an action canbe considered to be an administrative action. InPresident of the Republic of South Africa vSarfu 2000 (1) SA 1 (CC) it was held that anydecision relating to the implementation of legis-lation is an administrative action.

Due to the nature and core function of the deedsregistry, the 2nd, 3rd and 4th requirement areobviously complied with, and it will only benecessary to determine whether the rejection ofa deed fulfils the 1st, 5th and 6th requirement.

Three questions arise from the above, toestablish whether such a rejection is in fact

(i) a decision that

(ii) adversely affects people’s rights,

If the answer is in the affirmative, whose right?Will it be that of the conveyancer or that ofhis/her client? It stands to reason that if a righthas not been adversely affected, the AJA doesnot apply.The third question is whether the rejection of a

deed is in fact an administrative action taken inthe process of deeds registration? Thus, doesthe rejection comply with all six requirements foran administrative action?

The AJA provides a definition for “Decision” insection 1, the appropriate part for examinationpurposes being:

(iii) Imposing a condition or restriction; and

(iv) Doing or refusing to do any other act orthing of an administrative nature.

Most decisions by examiners to reject a deedare derived from empowering provisions, whichgive authority to act, and most are found in anenabling statute. This could either be a section inthe Deeds Registry Act, or any other legislationstipulating:

“The Registrar shall or must ...”

These are considered to be mandatory pro-visions and examiners do not have discretion inthis instance.

Where a provision is discretionary, e.g. TheRegistrar “may”, or “in the opinion of theRegistrar”, the AJA proposes that the admini-strator should consider what options areavailable and should ask himself/herselfquestions in order to determine whether thedecision he or she has made is not biased?Furthermore he/she has to consider whether ornot all relevant facts have been taken intoaccount (or whether or not the irrelevant oneshave been ignored)? He/she also has to askhimself/herself whether or not the decision wastaken in bad faith, etc? These are questionsasked when the courts review a decision asprovided for in section 6 of the AJA.

From the above, one can conclude that therejection of a deed does in fact fall within theambit of a “decision” as provided for in section 1of the AJA. A validly rejected deed, however,does not fulfil the sixth requirement of anadministrative action: that is that it must have adirect external effect. One can argue that theexternal effect of a validly rejected deed is of aconveyancer’s own doing as an examiner’sempowering provisions to reject a deed are theprovisions of regulation 45(7) of the DeedsRegistries Act, 47 of 1937.

IS A RIGHT ADVERSELY AFFECTED?

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By: Allen WestJustice College, PRETORIA

Republished with permission from De Rebus

Section 66 of the Deeds Registries Act 47 of 1937 limits theduration of a usufruct to the lifetime of the person in whosefavour it was created, and further restricts the cession thereofto the owner of the land thus encumbered.

Strictly, according to the above section, a contingent usufructcannot be registered. However, practice does allow for theregistration of such a contingent right. Contingent is definedin the Concise Oxford Dictionary as: “that can be anticipatedto arise if a particular event occurs”.

Before embarking on a discussion of the contingent usufructand the registrability thereof, a clear distinction must bedrawn between a contingent usufruct and a usufruct in favourof more than one person. In terms of trite law, a usufruct maybe created in favour of more than one person. The wordingof the instrument that creates the right will determine theextent of the usufruct in the event of death of any of theusufructuaries or of a waiver by any of them.

Where a usufruct is, for example, ceded to two or morepersons in equal, undivided shares and one of theusufructuaries dies, the servitude will only lapse in respect ofthe undivided share of the deceased, and the property willremain subject to the usufruct in respect of the other holder’sundivided share. However, where a usufruct is created infavour of two persons jointly, the principles of the iusaccrescendi apply on the death of the first dying. In thesame vein, where a usufruct is created in favour of spousesmarried in community of property, the usufruct does notlapse partially or in respect of an undivided half share whenone of the spouses dies, but the share of the deceasedaccrues to the surviving spouse. The usufruct thus will onlylapse in toto on the death of the surviving spouse.

In terms of trite law, more than one usufruct cannot existconcurrently on the same property. Furthermore, in terms ofthe maxim nemo plus iuris ad alium transferre potestquam ipse haberet, nobody can transfer more rights thanhe owns. It is thus clear that where a usufruct concerns aproperty which is already subject to a usufruct, the secondusufruct can not be registered. To circumvent this, practicehas allowed for the registration of a contingent usufruct.Registrars of deeds will allow that the bare dominium beregistered subject to the existing usufruct and the deed willfurther be made subject to the condition in respect of thesecond usufruct (this being the contingent usufruct). Thesecond usufruct is not registered, and may only be claimedfrom the bare dominium owner once the first usufruct haslapsed. In terms of Registrars Conference Resolution 47 of1987, a registrar of deeds will insist on the cession of thecontingent usufruct as soon as he becomes aware of the

The next aspect to determine is, whether byrejecting a deed, a right is adversely affected,and whether it is the conveyancer’s right or thatof his/her client? As only a conveyancing firm oran approved department as prescribed inregulation 45(1) of the Deeds Registry Act maylodge deeds, and as the examination sectiondeals only with conveyancers on a daily basis,the examiner’s client is the conveyancer, and notthe client whom he represents. As to whether aright is adversely affected, the courts recognized“the doctrine of legitimate expectations” inAdministrator, Transvaal v Traub 1989 4 SA731 A. The impact of this decision is thatconveyancers have a legitimate (reasonable)expectation not to have their deeds rejectedupon lodgement, which has now become a right,and they could use the AJA to protectthemselves. But then again, conveyancingrequires specialization and a high degree ofprofessionalism.

Could the conveyancer then, notwithstandingRegulation 45(7), enforce the right not to havehis/her deeds rejected, and insist on justice, asprovided for in the AJA? An affirmative answer tothis question boils down to absurdity: Theexaminer would have to inform the conveyancerby letter that he/she is about to reject his deedunless he/she complies with a provisa. The deedwould have to be held over for a mandatory timeperiod of up to 3 months, allowing theconveyancer time to reply. The examiner wouldhave to allow the deed to be amended in his/heroffice. If the deed cannot be amended and is stillrejected, the examiner would have to supplywritten reasons and inform the conveyancer ofinternal remedies to appeal against the validlyrejected deed. During this process a furtherperiod of 3 months could have lapsed.

CONCLUSION

The conclusion is that the conveyancer only hasa right not to have his/her deeds erroneously,or unreasonably rejected. Once it is determinedthat the latter is the case, the rejection of a deeddoes have the effect of adversely affectinghis/her right and only then does the administra-tive action have a direct, external effect onhis/her client, thus satisfying the requirementsfor an administrative action as provided for insection 3 and 4 of the Provision forAdministrative Justice Act, 2000.

From page 6 T he Registerability ofContingent Usufructsand Releated Matters

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lapse of the first usufruct.

A further example of a contingent usufruct is an owner ofland who bequeaths a usufruct to his son A, who ismarried out of community of property to B, subject theretothat should B survive A, she will be entitled to the usufructafter the death of A. As already discussed, two usufructscannot exist concurrently on the same property. Toovercome this problem, the registration of a contingentusufruct in favour of B is the only solution. The creatingdocument for the usufruct must further be made subjectto the condition that B may claim her usufruct only afterthe lapse of the existing usufruct in favour of A.

Where the contingent usufruct is one which contravenesthe provisions of, for instance, the Subdivision ofAgricultural Land Act 70 of 1970, the consent from theMinister will have to be lodged when the usufruct is cededto the contingent usufructuary. Similarly, where transferduty is payable on the creation of the usufruct in terms ofSection 2 of the Transfer Duty Act 40 of 1949, the transferduty receipt or exemption certificate must be lodged.

Whether a contingent usufruct can be regarded as aregistered real right is a question open for debate.However, from a deeds registry point of view, a contingentusufruct is regarded as a real right. For this reason, thepractice allows for the application of the provisions ofSection 69, 69bis and regulation 41(7) of the DeedsRegistries Act 47 of 1937 to property subject thereto.

If property is subject to a contingent usufruct, suchproperty cannot be transferred or mortgaged free fromthe contingent usufruct. The holder of the contingentusufruct can, by an underhand consent, waive his right inwhich case the provisions of Section 68(1) of the Act willbe invoked to record the lapsing of the usufruct againstthe title of the land.

Where the bare dominium owner and the holders of theusufruct and contingent usufruct together sell theirrespective rights to the property, the provisions of Section69(1) of the Act can be applied, in terms of which the baredominium owner and both the usufructuary and contin-gent usufructuary jointly act as transferors to transfer theproperty to the new owner, free from any usufruct.

Should only the initial usufructuary sell or waive his right,the contingent usufruct will have to be created notariallyand the new transfer be made subject thereto.

In the event of the bare dominium owner wishing toregister a mortgage bond on the property, it is debatablewhether any bondholder will accept property subject to ausufruct and a contingent usufruct, as security. To affordthe bondholder the maximum security, the holders of theusufruct and contingent usufruct may, together with thebare dominium owner, mortgage their respective rights.Alternatively, the holders of the usufruct and contingentusufruct can waive their rights in favour of the bond. Thiscan be done either notarially or in the bond agreement interms of regulation 41(7) of the Deeds Registries Act.

In terms of RCR 4.24/1984, the duty rests upon theRegistrar of Deeds to determine whether the stamp dutycalculated by the Receiver of Revenue is correct.

At present, only notarial leases still attract stamp duty,and for this reason the Commissioner for the SouthAfrican Revenue Services issued the following ruling:

“Background

During the meeting it was brought to my attention thatthe members of the Deeds Office find difficulty to com-ply with the requirements as set out in section 13 of theStamp Duties Act, 1968. A request was made to SARSto review the matter.

The Law

For ease of reference, the following sections of the Act,1998, are quoted:

Section 13(1)(a):

“It shall be the duty of every public officer to take cog-nizance of the requirements of this Act in respect of thestamping of any instrument which may come before himin his official capacity, and no instrument, which ischargeable with duty and is not duly stamped, may beissued, received, lodged, filed, enrolled or registered byany public officer unless or until the same is dulystamped”.

Section 13(1)(b):

“In the event of any refusal by any person to have anysuch instrument duly stamped, or if any public officer hasreason to believe that fraud or evasion of duty wasintended, the public officer shall impound the instrumentand transmit it to the Commissioner for the purpose ofrecovery of the duty and any penalty incurred”.

Ruling

SARS held the view that if the stamp duty on an instru-ment was assessed and calculated by one of the SARSBranch Offices, it was not necessary for your membersas public officers to check whether the instrument wasduly stamped or not.

However, in any other matter where an instrumentcomes before one of your staff in his official capacity,such instrument must be checked to ensure that it is dulystamped in accordance with the provisions of the StampDuties Act.”

The above ruling has been confirmed by RCR 2 of 2004and RCR 4.24 of 1984 has thus been repealed.

CALCULATION OF STAMP DUTY:DUTIES OF PUBLIC OFFICERS

By: Allen WestJustice College Pretoria

From page 7

ADVERTISEMENTS (REGULATION 68)

Regulation 68(1A) provides for the advertisements thatmust be obtained before a certified copy may beissued. In the following instances no advertisementsare required:

• Where it can be proven that the registry duplicate ofa title has been lost or destroyed, defaced or dam-aged through the negligence of the registrar ofdeeds (regulation 68(1B)).

In the above instance, the provisions of Regulation68(2) need not be complied with:

• Where a title deed has, for any reason, becomeunserviceable (Regulation 68(1C)).

Similarly, the provisions of Regulation 68(2) neednot be complied with.

• Where a title deed is in respect of land which is heldby the Minister of Land Affairs -

- in trust for any person or persons;

- for any nominee or nominees;

- for or on behalf of any other person or persons,and where the land is registered in the name ofthe State, a Minister or any official of the State;

- for land which is administered by the Minister ofLand Affairs (Regulation 68(1D)).

CORRESPONDENCE (REGULATION 71)

The amendment to this regulation clearly provides thatno preparation, lodgement or registration of any deedor document shall be done in a deeds registry bymeans of correspondence.

For a full exposition of the amendments, readers arekindly requested to read the Act and CRC 12 of 2004.

PROPOSED NEW AMENDMENTS

The Deeds Regulation Board has decided to repealthe provisions of Regulation 68(1A) - (1D) as the adver-tisements merely place an onerous burden on the own-ers of property. Statistics have shown that the adver-tisements do not significantly contribute to the reduc-tion of copies being issued. Readers are advised to beon the look-out for a future amendment to the DeedsRegistries Act 47 of 1937, which will hopefully beenacted during the course of the year.

The amended regulations published in GovernmentGazette No. 26800 dated 23 September 2004, whichcame into operation on 25 October 2004, have thefollowing effect on the practice and procedurepertaining to conveyancing.

LODGEMENT OF CARBON COPIES(REGULATION 20)

Although regulation 20(3) has been repealed, this doesnot permit practitioners to lodge carbon copies ofdeeds and documents. Regulation 20(1) endows theregistrar of deeds with the authority to reject deeds anddocuments that are not suitable for filing or recording.

LODGEMENT OF TITLE DEEDS (REGULATION51(2))

Regulation 51(2) now provides that the title deed ofland or real rights in land need not be lodged in thefollowing instances:

• Transfers/cessions pursuant to a sale in execution

• Transfers/cessions pursuant to a sale by a trusteein an insolvent estate

• Transfers/cessions pursuant to a sale by anexecutor in a deceased insolvent estate, admini-stered in terms of section 34(2) of theAdministration of Estates Act 66 of 1965

• Transfer/Cession pursuant to a sale by theliquidator of a company, close corporation orassociation

However, where the title is not lodged, the trustee,liquidator or executor must certify in writing that he orshe has been unable to obtain possession of such titledeed.

Where the office copy of the title has also been lost ordestroyed, the provisions of section 38 of the DeedsRegistries Act 47 of 1937 will have to be complied with,before the said transfer can be effected.

However, the lodgement of the title deed will be aprerequisite when the transfer is effected by virtue of anendorsement.

9

By: Allen West

Justice College Pretoria

AMENDMENTS TO THEDEEDS REGISTRIES ACT 47 OF 1937

In terms of Government Notice R 1115 published in theGovernment Gazette Volume 472, No. 26842 dated 1October 2004 (Regulation Gazette No 8067) theMinister for Agriculture and Land Affairs has, in termsof Section 9(9) of the Deeds Registries Act 47 of 1937,approved the amendment to the Schedule of Fees ofOffice as prescribed by Regulation 84 of the DeedsRegistries Act 47 of 1937.

The Schedule of Fees of Office is substituted by thefollowing and will come into operation on 1 November2004.

Item R

1. For a certificate by a registrar of any fact 25,00

2. For a report to Court made by a registrar in terms of Section 97 of the Act 250,00

3 (a) For a copy issued in a Deeds Registry in terms of Regulations 66, 67, and 70 of -a deed 30,00

per copya document 4,00

per page

(b) For the application for and for issuing a certified copy of a deed in terms of Regulation 68(1) 225,00

per copy

(c) For the keeping of a client’s copy of a deed on approval and at discretion of the registrar 150,00

per copyper year

or part thereof

4. (a) For an enquiry relating to:-

(i) a property or deed, obtaining a computerprintout and for the inspection of any deed,document, folio, register or microfilm relatingthereto (including the search of the index) for each enquiry per property or deed 6,00

(ii) a person obtaining a computer printout andfor the inspection of any deed, document,folio, register or microfilm relating thereto

(including the search of the index) for each 10 properties or part thereof 6,00

(b) For any unattended, continuous search forinformation for each hour or part thereof 15,00

(c) For any enquiry not specially provided for, afee is to be fixed by the registrar, provided that the minimum fee shall be 6,00

(d) For obtaining an off-line computer print-out,PC diskette or magnetic tape in respect of aseries of properties, for every 100 properties or part thereof 50,00

plus an administration fee of 60,00

(e) For preparing a quotation for the supply ofinformation relating to a series of properties, a refundable deposit of 300,00

(f) For information regarding the daily transfer of property acquired by electronic means 0,50

per property

(g) For issuing an alphabetical list, in electronicor paper format, containing the names of allthe townships, or sectional title schemes, orallotment areas, or agricultural holdings or farms, in a registration office 50,00

per list

5. For transmitting any certificate, deed, document orany other information by using fax or any otherelectronic media as approved by the Chief Registrar of Deeds 3,00

per page

6. (a) For registering as an Aktex or DeedsWeb user, a registration fee of 240,00

(b) For reconnecting an Aktex or DeedsWebuser, whose service has been suspended because of outstanding debts 80,00

(c) For subscribing to Aktex or DeedsWeb, a fee of 10,00

per month

10

NEW SCHEDULE OF FEES OF OFFICEBy: Allen West

Justice College Pretoria

☞

11

7. For information obtained through the Aktex or anyother electronic system:

(a) For enquiries relating to a person, property ordeed where the total number of a user’senquiries for a month:

does not exceed 100 3,00per enquiry

exceeds 100 but not 300 2,00per enquiry

exceeds 300 but not 1 000 1,50per enquiry

exceeds 1 000 1,00per enquiry

(b) For issuing copies for information on deedsand documents by using fax or any otherelectronic media as approved by the Chief Registrar of Deeds 3,00

per page

(c) For any enquiry on the system which isunsuccessful as a result of insufficient orincorrect information or where no registration information was found 1,00

(d) For a list of erven in a township, or units in asectional scheme, or portions of a farm, orholdings in an agricultural holding area, orerven in an allotment area, or any other similar list of registered properties 50,00

per 100 propertiesor part thereof

8. For the registration of -

(a) A transfer of land or cession of mineral rightsof which the purchase price -

(i) does not exceed R80 000 55,00

(ii) exceeds R80 000 but does not exceed R150 000 200,00

(iii) exceeds R150 000 but does not exceed R300 000 260,00

(iv) exceeds R300 000 but does not exceed R500 000 340,00

(v) exceeds R500 000 but does not exceed R1 000 000 400,00

(vi) exceeds R1 000 000 but does not exceed R2 000 000 500,00

(vii) exceeds R2 000 000 but does not exceed R3 000 000 650,00

(viii) exceeds R3 000 000 but does not exceed R5 000 000 800,00

(ix) exceeds R5 000 000 R1 000,00

(b) A bond of which the amount -

(i) does not exceed R150 000 200,00

(ii) exceeds R150 000 but does not exceed R300 000 260,00

(iii) exceeds R300 000 but does not exceed R500 000 340,00

(iv) exceeds R500 000 but does not exceed R1 000 000 400,00

(v) exceeds R1 000 000 but does not exceed R2 000 000 500,00

(vi) exceeds R2 000 000 but does not exceed R3 000 000 650,00

(vii) exceeds R3 000 000 but does not exceed R5 000 000 800,00

(viii) exceeds R5 000 000 1 000,00

(c) A cancellation or release of a person orproperty from the operation of a registeredmortgage or notarial bond and an application in terms of Section 4(1)(b) of the Act 60,00

(d) Any other registration or annotation inregisters or records, including certificates oftitle, and all other registrations which are notexempted by a law or where no purchase price is involved 95,00

9. For any information, copy or other service referredto in this schedule other than the registration ofdeeds and documents, which may be required forofficial purposes by the Accounting Officer of theDepartment of Land Affairs, or her or his delegate, per item 0,00

EXEMPTIONS

No fees shall be levied by a registrar in respect of theperformance of any act prescribed in Section 3(1)(w) ofthe Act.

From page 10

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CLARITY AND LEGIBILITY OF DEEDS ANDDOCUMENTS WITH REFERENCE TO REGULATION 20(1)OF THE DEEDS REGISTRIES ACT 47 OF 1937

By: Marie GrovéJustice College Pretoria

The author has grave concerns pertaining toamendments to deeds and documents andthe legibility of the handwriting in deeds and

documents lodged at the deeds registries. Sheconsiders it necessary to address this issue.Regulation 20(1) of the Deeds Registries Act 47of 1937 provides as follows in this regard: “Deedsand other documents lodged for execution, regis-tration or record shall be on paper approved bythe Registrar and shall be in clear writing, print ortype, of good quality ......”. (the author’s under-lining)

Amendments in deeds are brought about where itis not possible to change information due to thelack of space, and where it would rather beadvisable to redraft the page. Certain hand-written amendments are too small and not legible,not to mention the problems which may occurwhen microfilming or scanning takes place. Itwould appear that once documents are lodged,their subsequent rectification takes place in ahaphazard fashion. It often occurs that copies ofdeeds are issued, in which changes oramendments were not clearly affixed and aretherefore not legible, once copied.

A further issue that needs to be addressed, is theendorsement of deeds. Regulation 20(1) does notonly apply to conveyancers and should also beapplied when deeds are endorsed. The endorse-ment of deeds and the handwriting in theendorsements leave much to be desired. Not onlyare endorsing and handwriting matters ofconcern, but also the clarity of the writing and thequality of the ink [Regulation 20(4)]. Notes raisedin deeds are scribbled in such a manner that aperson would sometimes think it is a foreignlanguage.

In this regard, some guidelines were provided in aregistrar’s circular issued at the Pretoria DeedsRegistry, which address the matter of clarity andlegibility of deeds and documents. (Registrar’sCircular 6/1994 - intern for the examiners). Theregistrar appealed to the examiners to applygreater care in the endorsement and completionof endorsements, and to write in block letters.

Endorsements must also be affixed in achronological order and, most importantly, mustbe approximately 20 mm apart. When the firstpage of a deed has already been endorsed, anadditional page, which has been identified withthe title deed by writing the page and title numberat the top, must be added to the deed. Theseprinciples should be strongly enforced to addressthe aforesaid concerns.

Initialing of amendments is another aspect fordiscussion. It is often noticed that amendments inendorsements are not made properly, areillegible, or are not initialled by the person whoeffected the amendment. Sometimes, when titledeeds are lodged, it is uncertain at what stageamendments were made to such title. Did theclient / conveyancer / clerk / typist amend thedeed subsequently to the registration thereof, orwas it properly amended and initialled beforeregistration? To preclude any doubt, the date ofamendment should be affixed together with theinitials, in respect of any amendment made by theconveyancer in the deed, or by the examiner inthe endorsements.

It is proposed that conveyancers should notaccept poor endorsements and handwriting indeeds. If spotted on preparation, prior to regi-stration of the deed, conveyancers must insist onhaving it re-endorsed properly.

Note the registrar’s plea at the end of the above-mentioned circular: “Ondersoekers, ons wil graagsaam met u trots wees op die professionele werkwat in die ondersoekafdeling gedoen word.”*Translated: “Examiners, we would like to beproud together with you with regard to theprofessional work performed in the examinationsection.” - EditorAre we proud?

Please take note that the above observation isbased on the author’s personal experience in onedeeds registry. It is not an assumption pertainingto all examiners or to other deeds registries.

13

COVERT SALES AND DONATIONS IN RE-DISTRIBUTION AGREEMENTS

It is a generally accepted, legal principle ofcommon law that the key essence of everylast will and testament is to express the lastwishes of a testator, and that therefore anytransactional dispensations and estateadministration per tinent thereto may notdeviate widely from the provisions of therelevant testament, irrespective of anystanding agreement between the interestedparties: (De Wet v De Wet 1951(4) SA 212(CPD)

However the foregoing principle is quitefrequently infringed, as there may be variouscircumstances, often unpredicted by thetestator, that present stumbling blocks in aparticular deceased estate administration, forexample;

• The cases provided for under Section14(1)(b) of the Deeds Registries Act 47 of1937.

• The prohibitions of cer tain transfersincluding more than one transferee inAgricultural land as prescribed under theSubdivision of Agricultural Land Act, 70 of1970.

• Prohibitions orchestrated by cer tainunfavourable Municipal legislation regard-ing subdivisions of land etc.

The above circumstances and more, mayjustif iably sway the beneficiar ies moretowards a redistr ibution agreement tosurmount these hindrances.

There are various formative requirements thata re-distribution agreement must comply with,however, for the purposes of this article onlythe aspect of covert sale and covert donationare discussed:

In Klerk NO v Registrar of Deeds 1950 (1)SA 626T, it was decided as follows: “ ...that in

every redistribution there must be involved asale, exchange or donation ......but the merefact that a sale between two heirs or betweenan heir and the surviving spouse is enteredinto does not necessarily mean that aredistribution is brought about by that sale.”

Therefore, quite clearly, the above quoteadmonishes against manipulating the re-distribution agreements by using the latter asa safe bastion for covert sales and donations.

In the face of the foregoing quote from theKlerk-case, one begins to ponder as to howto establish whether a certain donation orsale in the re-distribution agreement is covertor otherwise.

Although the test is provided by Lubbe vCommissioner for Inland Revenue 1962(2)SA 503 (o), namely that if one were to ignorethe re-distribution agreement, would there bea proper allocation of the estate assetsirrespective of the introduced movables?

Whereupon, if the answer is in the affirmativethat the agreement is forthcoming, the abovetest is in its own susceptible to uniforminterpretation and application.

The Master Of The High Court, on the otherhand, applies a more conceptualisticapproach in testing if re-distribution agree-ments do not contain cover t sales ordonations, namely:

✜ The presence of all the elements of a salein a transaction.

✜ In the case of a donation, the presence ofall the elements thereof.

For example, in a certain will (X), the testatorhad directed that his farm Rolling Hills No2370 be subdivided and the portions thereofbe allocated to his two children respectively.

By: Wiseman BhuqaPietermaritzburg Deeds Registry

☞

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Whereas it appeared that such bequest couldnot be granted, as it was tantamount to theinfringement of the provisions of Section 2 ofThe Subdivision of Agricultural Land Act( Act70 of 1970), the heirs had to enter into a re-distr ibution agreement whereby (Y), theeldest daughter, was allocated ownership ofthe entire farm, but had to pay an amount ofR10 000,00 to the other heir.

Due to the terminology used in the saiddistribution agreement, the latter looked morelike an agreement of sale than a re-distribution agreement as it read as follows:

“ Whereas the parties hereto have agreed thatY will receive ownership of the wholeproperty, while Z will receive an amount ofR10000.00 from Y in consideration of hiswaived share in the bequest”

Relying on the conceptualistic approach, theMaster ordered that the parties enter into anew agreement, as the words “...R10000,00 inconsideration of were indicative of a covertsale.

The Master advised that the following wordingbe used “...An amount of R10000,00 is paidinto the estate by Y and Z will receive anaward of R10000,00 from the estate...itshould not read in consideration of ”

In simple terms, the words “in considerationfor” must not appear in any redistributionagreement as they imply the presence of apurchase price and thereby pointing more to asale than a re-distribution agreement.

Instead the words x amount was awarded toZ, must be used.

It is proposed that examiners take cognizanceof the above.

BACKGROUND

Mr. Jodwana started his career in the civil service inthe Magistrate’s Office. In 1977 he joined the DeedsOffice in the Ciskei as a deeds controller. He quicklyrose through the ranks in the deeds office, and by1985, he was Acting Registrar of Deeds. In 1990 hewas appointed as Registrar of Deeds: Ciskei.

Mr. Jodwana was always renowned for his open-doorpolicy, which was appreciated by all his staff. He wasan excellent administrator, who stressed theimportance of proper administration within a deedsoffice. In 1997, the Ciskei and the King William’s TownDeeds Offices merged. In 1999 Mr. Jodwana accepteda severance package. Mr. Jodwana was a managerdeserving of the affection that the entire staff had forhim.

On the 18 October 2004 an interview was held withMr. Jodwana, to discuss his years in the Deeds Office.

THE INTERVIEW

QuestionWhat was the biggest challenge in your career?

AnswerThe biggest career challenge was working towardbeing appointed as Registrar of Deeds.

QuestionWhat would you like to see happening with theRegistration System in South Africa?

AnswerThat is a very broad question, and a difficult one toanswer, as I have been out of the Deeds Office scenefor a while.

Property Law has never been static, so I can say withconfidence that I am sure the Deeds Registrationsystem will adapt as the need arises.This, I feel, is oneof the strengths of the Deeds Registration system,namely, that the system is adapted on an ongoingbasis to keep up with changing times. This includesthe use of technology.

QuestionWhat would you advise a person who is interested infollowing a career in the Deeds Office?

AnswerI would encourage them. If you apply yourself and areprepared to work to the best of your abilities, you willbe successful in the Deeds Office.What I enjoyed about the examination of deeds is thatyou have to apply your mind. I like the nitty-gritty ofproperty law.

From page 13By: Allen West, Justice College Pretoria

INTERVIEW WITHMR. JODWANAA PREVIOUS REGISTRAR OF THE CISKEI DEEDS OFFICE

☞ page 26

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I n the midst of the present uncertainty as towhether an endorsement in terms ofSection 40 of the Administration of Estates

Act 66 of 1965 constitutes a transfer ofownership or not, deeds registries do notinsist that bonds be lodged for disposal orthat the mor tgagee consent to theendorsement. From a practical perspective, itis submitted that this practice is incorrect andmight render the Registrar liable for damagessustained by a mortgagee.

In Holness and Another v PietermaritzburgCity Council 1975 (2) SA 713, Shearer J heldthat, once the Section 40 endorsement wasmade, the executor was functus officio inrelation to the immovable property to thesame extent as if he had transferred theproperty to the legatee. Other case law andopinions indicate that the trustees do notbecome owners of the trust assets, but thatthe property vests in the trustees for thebenefit of trust beneficiaries. Nevertheless, itis clear that the current owner of the property(the executor) is forever out of the pictureonce the endorsement is registered.

The question one is confronted with now iswho has locus standi in judicio to be suedon the bond? One cannot sue the previousowner (executor) because the control overproperty was handed over to the trustees andthe executor is no longer in the picture. On theother hand, although the deeds registry prac-tice over the last seventy years or so hasbeen to regard the trustees as the owner ofthe property, it is also evident that deedsregistries do not regard an endorsement interms of Section 40 as a transfer ofownership, and therefore the trustees cannot

be sued either. The trustees might even arguethat they are not the mortgagors who passedthe bond and that they were not substitutedas debtors under the bond.

In Registrar of Deeds v Shaws Executors1928 AD 425 it was decided that a creditorcould waive his rights to payment. This meansthat if a mortgagee consents to the title of themortgaged property being endorsed underSection 40, he releases the executor fromliability and must go to the trustees for pay-ment. A mortgagee should not consent unlesshe has established that the trustees have fullpower to mortgage the property and are thusable to be sued under the bond. A trustee hasonly those powers which are conferred uponhim by the will. If he cannot alienate theproper ty, the administration of which hasbeen entrusted to him, he may have no locusstandi in judicio to be sued on the bond andthe mor tgagee may find that he has noremedy, e.g. where the beneficiaries areundetermined.

In the past, registrars of deeds called for aconsent from the holder of a mortgage bondto be lodged when an application was madefor endorsement under Section 40. It issubmitted that the current practice of notinsisting that bonds be lodged for disposal isdangerous and might lead to claims fordamages. Executors applying for endorse-ments are nevertheless urged to obtain atleast such a written consent from themortgagee to protect both themselves and thetrustees.

What is your opinion in this regard?

ENDORSEMENT IN TERMS OF SECTION 40 OFTHE ADMINISTRATION OF ESTATES ACT

(ACT 66 OF 1965) LODGEMENT OF BONDS FORDISPOSAL OR CONSENT OF BONDHOLDER

By: P J WeidemanBloemfontein Deeds Registry

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INTESTATE SUCCESSION OFBLACK ESTATES – A NEW ERA

By: Allen WestJustice College Pretoria

Section 23 of the Black Administration Act 38 of1927 has for many years been a thorn in the fleshfor many people. Alas! the court has now ruledthat the said Section is unconstitutional. Thecases in question were as follows:

Bhe and Others v The Magistrate, Khayelitshaand Others CCT 49/03, Shibi v Sithole andOthers CCT 69/03; and South African HumanRights Commission and Another v Presidentof the Republic of South Africa and AnotherCCT 50/03.

The following media summary is provided toassist in reporting this case and is not binding onthe Constitutional Court or any member of theCourt:

These three cases concern a constitutionalchallenge to the rule of male primogeniture as itapplies in the African customary law of succes-sion, as well as constitutional challenges toSection 23 of the Black Administration Act, 38 of1927, regulations promulgated in terms of thatsection and Section 1(4)(b) of the IntestateSuccession Act, 81 of 1987. The ConstitutionalCourt today upholds the challenges, strikes downthe impugned statutory provisions and regu-lations, and puts in place a new interim regime togovern intestate succession for black estates.

The first two cases (the Bhe and Shibi cases) areapplications for confirmation of orders of constitu-tional invalidity made by the Cape High Court andthe Pretoria High Court respectively. Both Courtsfound Section 23(10)(a),(c) and (e) of the BlackAdministration Act and Regulation 2(e) of theRegulations for the Administration andDistribution of the Estates of Deceased Blacksunconstitutional and invalid. Section 1(4)(b) of theIntestate Succession Act was also declared to beunconstitutional insofar as it excludes from theapplication of Section 1 of that Act any estate orpart of any estate in respect of which Section 23of the Black Administration Act applies.

The application in the Bhe case was made onbehalf of the two minor daughters of MsNontupheko Bhe and her deceased partners. It

was contended that the impugned provisions ofthe customary law rule of male primogenitureunfairly discriminated against the two children inthat they prevented the children from inheritingthe deceased estate of their late father. In theShibi case for similar reasons, Ms Shibi wasprevented from inheriting the estate of herdeceased brother.

The South African Human Rights Commissionand the Women’s Legal Trust were permitteddirect access to the Court in the third case whichwas brought in the public interest, and as a classaction on behalf of all women and childrenprevented from inheriting by reason of theimpugned provisions and the rule of maleprimogeniture.

The Commission for Gender Equality wasadmitted as amicus curiae and, together with theMinister for Justice and ConstitutionalDevelopment (who was a respondent in each ofthe cases), presented oral and written sub-missions.

Langa DCJ, writing for the majority of the Court,holds that, construed in the light of its history andcontext, Section 23 of the Black AdministrationAct is an anachronistic piece of legislation whichossified “official” customary law and causedegregious violations of the rights of black Africanpersons. The section created a parallel system ofsuccession for black Africans, without sensitivityto their wishes and circumstances. Section 23and its regulations are manifestly discriminatoryand in breach of the rights to equality in Section9(3) and dignity in Section 10 of our Constitution,and therefore must be struck down. The effect ofthis order is that not only are the substantive rulesgoverning inheritance provided in the section heldto be inconsistent with the Constitution, but alsothe procedures whereby the estates of blackpeople are treated differently from the estates ofwhite people are held to be inconsistent with theConstitution.

Langa DCJ then considers the African customarylaw rule of male primogeniture, in the form that ithas come to be applied in relation to the

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inheritance of property. He holds that it dis-criminates unfairly against women and illegitimatechildren. He accordingly declares it to be un-constitutional and invalid.

He holds that, while it would ordinarily bedesirable for courts to develop new rules ofAfrican customary law to reflect the livingcustomary law and bring customary law in linewith the Constitution, that remedy is not feasiblein this matter, given the fact that the rule of maleprimogeniture is fundamental to customary lawand not replaceable on a case-by-case basis.However, he holds that an interim regime toregulate intestate succession of black persons isnecessary until the legislature is able to provide alasting solution. As such, the Court orders thatestates that would previously have devolvedaccording to the rules in the Black AdministrationAct and the customary law rule of male primo-geniture must now devolve according to the rulesprovided in the Intestate Succession Act. Specialprovision is made in the order for polygamousunions.

The order of this Court in respect of the rules ofinheritance is made retrospective to the 27 April1994, but will not apply to completed transfers ofownership, except where an heir had notice of achallenge to the legal validity of the statutoryprovisions and the customary law rule of maleprimogeniture.

In relation to the administration of estates, theCourt orders that in future, deceased estateswhich would have previously been administeredby magistrates in terms of the BlackAdministration Act, must now be administered bythe Master of the Supreme Court in terms of theAdministration of Estates Act, 66 of 1965.However the order of the court in respect of theadministration of estates is not retrospective, soestates currently being administered bymagistrates in terms of Section 23 of the BlackAdministration Act will continue to be admini-stered by those magistrates. From the date of thisjudgment, new estates will be administered by theMaster of the High Court in terms of theAdministration of Estates Act.

In a partially dissenting judgment, Ngcobo Jagreed with Langa DCJ that Section 23 of theBlack Administration Act together with the regu-lations made under that Act, and Section 1(4)(b)of the Intestate Successions Act violate the rightto equality and the right to dignity and are there-fore unconstitutional. He also agrees that the prin-

ciple of male primogeniture discriminates unfairlyagainst women. He holds, however, that the prin-ciple of primogeniture does not unfairly discrimi-nate against younger children. He stresses thefact that one of the primary purposes of the ruleis to determine someone who will take over theresponsibilities of the deceased head of the fami-ly. These responsibilities include the obligation tomaintain and support the minor children and otherdependants of the deceased. They also includethe power to control and administer the familyproperty on behalf of all family members. He alsostresses the fact that an indlalifa (heir) does notbecome the owner of the property but holds theproperty on behalf of all family members.

Ngcobo J also holds that courts have anobligation under the Constitution to developindigenous law so as to bring it in line with therights in the Bill of Rights, in particular, the right toequality. He holds therefore that the principle ofprimogeniture should not be struck down butinstead should be developed so as to be broughtin line with the right to equality, by allowingwomen to succeed to the deceased as well.

As the striking down of Section 23 and therelevant regulations would result in the absenceof choice of rules to determine when indigenouslaw is to be applied, Ngcobo J holds thatParliament must make laws governing theapplication of indigenous law. He accepts thatpending the enactment of that law, an interimmeasure must be put in place to regulate succes-sion. He finds that the application only of theIntestate Succession Act may, in certain circum-stances, lead to an injustice. This is so becausethe provisions of this statute are inadequate tocater for the social settings that indigenous lawsof succession were designed to cater for, inparticular, the transfer of the obligation to lookafter minor children and other dependants of adeceased. He also finds that the application of theindigenous laws of succession may be inap-propriate in certain circumstances. He thereforeholds that pending the enactment of the relevantlaw by Parliament, both the indigenous laws ofsuccession and the Intestate Succession Actshould be applied subject to the requirements offairness, justice and equity. He holds that in theinterim, the questions of which system of lawshould be applied must be determined byagreement among family members. However,where there is a dispute, such a dispute must beresolved by the magistrates’ court havingjurisdiction.

From page 16

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By: Henry LourensPietermaritzburg Deeds Registry

When contemplating and analyzing thepossible registration of a notarial bondover a Permission to Occupy, it is of

vital importance to determine what may beregistered under a notarial bond and what maynot be registered.

Section 102 of the Deeds Registries Act, Act 47of 1937 is clear in this regard, “Notarial bondmeans a bond attested by a Notary Publichypothecating movable property generally orspecially”.

To emphasize this point even more, Section53(1) of the Deeds Registries Act, Act 47 of1937, forbids a registrar of deeds fromregistering a mortgage bond, which purports tobind immovable property.

This begs the question whether aPermission to Occupy is regarded asmovable or immovable property?

The definition of immovable property in theDeeds Registries Act, 47 of 1937 does notclarify the matter, as it is silent with regard toPermissions to Occupy.

The regulations under the Black AdministrationAct, Act 38 of 1927 which defines a Permissionto Occupy as “permission in writing granted ordeemed to have been granted in the prescribedform to any person to occupy a specified areaof trust land for a specific purpose” also doesnot shed any further light on the matter.

Attention is also drawn to the Upgrading ofLand Tenure Rights Act, Act 112 of 1991, whichdescribes the holder of the “PTO” as a “putativeholder”. A “putative holder” in the definitions ofthe Upgrading of Land Tenure Rights Act, Act112 of 1991, means that the person occupiesan erf as if he or she is the holder of the landtenure right in respect of that erf, but who is not

formally recorded in the register of land rightsas the holder of the right in question.

This means that a permission to occupy wasregarded as a land tenure right. This statementcan be confirmed by the definition of LandTenure Right set out under the definitions of theUpgrading of Land Tenure Rights Act, Act 112of 1991. The definition reads as follows “landtenure right” means any leasehold, deed ofgrant, quitrent or any other right to the occu-pation of land created by or under any law and,in relation to tribal land, includes any right tothe occupation of such land under theindigenous law or customs of the tribe inquestion.”

It also means that a Permission to Occupy isupgradable to freehold property (as defined interms of Section 102 of the Deeds RegistriesAct, Act 47 of 1937) in terms of the Upgradingof Land Tenure Rights Act, Act 112 of 1991.

The test to establish if this is feasible is as fol-lows: If a notarial bond is registered over a per-mission to occupy and such permission tooccupy is upgraded to freehold in terms of theUpgrading of Land Tenure Rights Act, Act 112of 1991, what security will be there for thebondholder of the notarial bond?

It is therefore submitted that a notarial bondcannot be registered where the security there-under is that of a Permission to Occupy. Thereason being that a Permission to Occupy isregarded as immovable property and in termsof Section 53(1) of the Deeds Registries Act,Act 47 of 1937, the Registrar is prohibited fromregistering a notarial bond, which purports tobind immovable property.

Readers comments in this regard is sought -Editor.

MAY A PERMISSION TO OCCUPY SERVEAS SECURITY UNDER A NOTARIAL

MORTGAGE BOND?

19

By: George TsotetsiOffice of the Chief Registrar of Deeds

Subsection (2) of Section 13 of the SectionalTitles Act, 1986 (Act No. 95 of 1986) (‘theAct’) provides as follows:

‘(2) A sectional plan, together with theschedule of servitudes and conditionsreferred to in Section 11(3)(b), shall uponthe registration of such plan be deemed tobe part of the sectional title deed, ...’

In terms of Section 3(1)(b) of the DeedsRegistries Act, the Registrar of Deeds isenjoined to examine all deeds submitted tohim for execution or registration, and, afterexamination, to reject any deed the executionor registration of which is not permitted by theAct or by any other law, or to the execution orregistration of which any other valid objectionexists.

It stands to reason, in the process of exami-nation of a deed, that the existing title mustbe examined for the verification of the existingconditions of title. It is unquestionable thatSection 13 of the Act finds application in theprocess.

On examination of a third sectional bondpurpor ting to hypothecate a section in ascheme, I found that the relevant Section11(3)(b) schedule contained the followingcondition:

‘C The property in paragraph 2A above,shall not be alienated, transferred, leasedor otherwise dealt with without prior writtenconsent of NBS Bank Limited No.87/01384/06, by vir tue of a notarial deedstill to be registered.’

A notarial deed containing this condition wasduly registered and the opening of the

relevant scheme duly noted thereon.

I rejected the bond on the basis that theregistration of the said bond constituted analienation that is prohibited by the above-mentioned condition and therefore consent byNBS had to be lodged. The conveyancerconcerned raised an argument that states thatthis restriction was only applicable in relationto the developer of the scheme and not tosubsequent purchasers of the relevantsections. I did not concur with the argument ofthe conveyancer as the wording of thecondition does not support the conveyancer’sargument. It is noteworthy to mention that theregistration of the second bond waspreviously rejected for the same reason. Theconsent of NBS was eventually lodged andthe bond duly registered.

It is, however, possible that the intention ofthe parties was to have the condition applyingin respect of the developer only, but unfortu-nately such intention does not appear in thecondition. It is humbly submitted that for aslong as the said condition is contained in theSection 11(3)(b) schedule of conditions, thedeeds office has no option but to insist oncompliance because the condition constitutesa valid objection as contemplated in Section3(1)(b) of the Deeds Registries Act. Readersare implored to share their views in this mat-ter for the purpose of correcting me, shouldmy understanding be way off the mark.

The checking of the schedule of conditionsfor any restriction on alienation whenexamining any act of registration is imper-ative - Editor

SECTION 13 OF THE SECTIONAL TITLES ACT,

1986 (ACT NO. 95 OF 1986)

AND THE EXAMINATION OF DEEDS

plan, the deeds registry copy of the sectionalplan and the schedule thereto, specifying thequota of each remaining section.

It is advised that the following documentationshould be prepared and lodged at the deedsregistry:

For the cancellation of the whole of thesection:-• the written consent of the owner of the section

to the cancellation of the section;• the sectional title deed of the unit (section);• all the sectional mortgage bonds (if any)

registered over such unit (section) togetherwith the consent of the bondholder(s) to thedisposal of such sectional mortgage bonds;and

• the title deeds of any other registered realrights over the unit, if any, for cancellation [Interms of CRC 18 of 1997, these title deedsmust be lodged. However, the circular is silentabout the written consent of the holders ofsuch rights to the cancellation of the rights.Furthermore, the circular refers to Section17(5) of the Act as authority for the lodgmentof such title deeds. Section 17(5) of the Act,however, specifically deals with the alienationof the whole of the common property - notonly a portion. The Act is silent about thelodgment of such title deeds upon cancel-lation of the section. It is submitted that thetitle deeds of such rights must be lodged,together with the written consent to thecancellation thereof by the holders of therights] ; and

• a transfer duty receipt for the acquisition ofthe common property.

Where only part of a section is affected by thealienation of a portion of the common property, aproportionately amended participation quotaschedule is sent to the Surveyor-General by theconveyancer concerned. As only the Surveyor-General may change the description and extentof a section (unit), the Surveyor-General is

20

By: Alexandré LombaardJustice College Pretoria

In the first part of this article the reader wasintroduced to the concept of subdivision of thecommon property in a sectional title scheme;

the basic preparatory steps to be taken for suchsubdivision; and the deeds and documents to belodged at the deeds registry for registrationthereof. An elaborated discussion ensued on theprocedure for the transfer of a portion of thecommon property, in respect of which commonproperty no registered sectional title rights exist(e.g. no sections, no exclusive use areas, no rightto extend the scheme as contemplated bySection 25).

From the phrasing of Section 17 it is evident thata portion of the common property may not betransferred, if such portion is subject to existingsectional title rights, i.e. sections, exclusive useareas, etc. Therefore, if any such rights areregistered in respect of the portion of thecommon property to be transferred, such rightsmust first be disposed of.

This part of the discussion is intended to dealwith the procedure to be followed, where thewhole or part of a section(s) is registered overthe portion of the common property to betransferred.

If the whole of a section is affected by theintended transfer of the common property sec-tion, 17(4)(a) prescribes that such a section mustbe cancelled with the written consent of theregistered sectional owner, prior to theregistration of the transfer of the portion of thecommon property. It stands to reason that theparticipation quota of such a section will lapseupon registration of the cancellation of the saidsection (Section 17(4)(c)). Furthermore, thequotas of the remaining sections will have to beadjusted proportionately (Section 17(4)(c)). Interms of Section 17(4)(d) the registrar of deedsshould notify the Surveyor-General whenever thecancellation of the section is registered; where-upon the Surveyor-General should make therequisite amendments to the original sectional

SUBDIVISION OF THE COMMONPROPERTY IN A SECTIONAL TITLE

SCHEME – PART II

☞

21

informed about (and requested for approval of)the anticipated amendment to the section prior tolodgement of the transaction in the deedsregistry (Section 17(4A)(a)).

Upon approval of the amendment, the Surveyor-General notifies the registrar of deeds concernedabout the anticipated change in the descriptionand/or extent of the section (Section 17(4A)(b)).This notification is annotated by the registrar ofdeeds as an “SG-interdict” against the sectionconcerned.

Upon registration of the transfer of the portion ofthe common property the registrar endorsesthe sectional title deed of the affected unit(section) with regard to the amended descriptionand/or extent as reflected on the said “SG-interdict”.

Subsequent to the registration of the transaction,the registrar notifies the Surveyor-General in thisregard (Section 17(4A)(c)). Upon receipt of suchnotification the Surveyor-General notes theamendment on the original plan and the deedsregistry copy of the sectional plan and theamended participation quota schedule, specify-ing the quota of each section (Section 17(4A)(c)).Thus, simultaneously with the registration of thetransfer of the portion of the commonproperty, the unaffected portion of the unit issubstituted in accordance with the amendedparticipation quota schedule (Section 17(4A)(b)).

It is advised that in this instance, the followingdocumentation should be prepared and lodged atthe deeds registry:For the cancellation of the affected portion ofthe section:-• the written consent of the owner of the section

to the cancellation of the affected portion ofthe section;

• the sectional title deed of the unit (section);• all the sectional mortgage bonds (if any)

registered over such unit (section) togetherwith the consent of the bondholder(s) to thedisposal of such sectional mortgage bonds inrespect of the affected portion of the unit

(section), at least (i.e. release of the portionfrom the working of the bond or the cancella-tion of the bond);

• the title deeds of any other registered realrights over the unit, if any, for cancellation;and

• a transfer duty receipt for the acquisition ofthe common property.

Irrespective of whether only part of a section, orthe whole thereof, will be affected by the transferof the portion of the common property, thedocumentation to be prepared and lodged at thedeeds registry remains the same and it isadvised to include:

For the transfer of the portion of the commonproperty:-• a deed of transfer in the prescribed FORM H

in Annexure I to the regulations (Section17(3));

• a copy of the unanimous resolution, referredto in Section 17, certified by two trustees ofthe body corporate (Section 17(1) andSection 17(2) and CRC 18 of 1997);

• a diagram approved by the Surveyor-General- if the portion of the common property to bealienated has not been demarcated anddepicted on an already existing diagram thatwas approved by the Surveyor-General(Section 17(3)(a) and CRC 18 of 1997);

• all the mortgage bonds over the units and thescheme and related written consents of bond-holders in terms of Section 56 and Section 57of the Deeds Registries Act for disposal inrespect of the portion concerned (Section 18;RCR 35 of 2002 and RCR 45 of 2003); and

• all usual, prescribed documentation, e.g. aspecial power of attorney to pass transfer; atransfer duty receipt, rates clearancecertificate for the land, usual documentationpertaining to the subdivision of land, etc.

In the remaining two parts of the article, theprocedure to be followed where exclusive useareas and the right to extend the scheme ascontemplated by Section 25 are affected, will bediscussed.

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as a result of eviction in terms of thePrevention of Illegal Eviction from andUnlawful Occupation of Land Act 19 of1998 (the PIE Act). The court also heldthat the PIE Act includes sufficient safe-guards to ensure that the rights of thosesimilarly situated to the appellants are notviolated.

In this Court, Mokgoro J, in a unanimousjudgment, upholds the appeal against thedecision of the High Court. She finds thatany measure which removes from peopletheir pre-existing access to adequatehousing limits the right to housing in theConstitution.

The Cour t holds that the process ofexecution against immovable property isunconstitutional to the extent that it allowsa person’s home to be sold in execution incircumstances where it is unjustifiable. Theprocess can occur, from beginning to end,without oversight by the courts. The Courtholds that an appropriate remedy would beto provide judicial oversight of the execu-tion process, so that a court can deter-mine, whether an execution order againstthe immovable property of a judgmentdebtor is justif iable under thecircumstances of the case.

Mkontwana v Nelson MandelaMetropolitan Municipality CC T 57/03

The Constitutional Court gave judgment inthree cases concerning the constitution-ality of Section 118(1) of the LocalGovernment: Municipal Systems Act 32 of2000 and Section 50(1)(a) of the GautengOrdinance No 17 of 1939.

Bhe and Others v The Magistrate,Khayelitsha and Others CCT 49/03.

See the full discussion of the effect of thiscase in the article by Allen West in this issue.

This column provides a brief exposition ofthe case law which is relevant toconveyancing and notarial practice.

However, the cases should be read in toto.

Jaftha and Others v Van Rooyen andOthers CCT 74/03

Sale in execution of homes becauseowners have not paid their debts - violatesconstitutional right to adequate housing

The Constitutional Court upheld the appealagainst the decision of the Cape HighCour t delivered on 5 June 2003. Theappellants challenge certain provisions ofthe Magistrates’ Courts Act 32 of 1944 (theAct) which provides for execution againstthe immovable proper ty of judgmentdebtors.

This case concerns a small, pover ty-stricken community in Prince Albert in theKaroo. The appellants are unemployed,with few assets. Both were threatened withlosing their homes because of their failureto pay certain debts. Both were able to buytheir homes as a result of state subsidies.If people lose their homes as a result of asale in execution, they are disqualifiedfrom acquiring future state subsidies. Theappellants therefore approached the HighCourt and argued that the effect of theimpugned provisions was to render themhomeless, potentially on a permanentbasis. They argued that the impugnedsections constituted an unjustifiable limiton their r ight of access to adequatehousing.

The High Court rejected the arguments ofthe appellants and held that the right toadequate housing does not include theright to own one’s own home. The courtheld further that, to the extent that peoplemight be rendered homeless as a result ofthe impugned provisions, this was eitherthrough vacating their homes voluntarilyafter the homes were sold in execution or

CONVEYANCING THROUGHTHE CASES

By: A S WestJustice College Pretoria

23

1. INTRODUCTION

The purpose of this article is to develop askill which will help you to read and sum-marize a court case. In the first instance aperson has to know to find a court case.Although every person will have his own wayof reading and summarizing a court case,some aspects however must be kept in mind.

FINDING A CASE

Each case that goes through the courts isindicated by a specific reference. A casereference contains certain key elements:

• The name of the case• Year and volume of the case report• Page where the case report starts• Court where the case was decided

(a) The name of the case

All cases are reported by the reference tothe name of the parties involved. The “v”between the names of the parties is anabbreviation for versus which means“against” for example Boland Bank v DuPlessis 1995 (4) SA 113.

When there is more than one person orinstitution involved, the case name usuallyrefers only to the name of the first party,adding that there is another party appearing.For example United Building Society Ltd andAnother v Du Plessis.

In some cases the abbreviation NO (pluralNNO) appears after the name of one theparties, indicating that the person appearedin the case in his/her official capacity and notpersonally. This is an indication that theperson is a curator or a trustee. See theSimplex case.

In criminal cases, the first party will alwaysbe “S”. The letter “S” refers to the state. Theother party is the accused. For example S vJeffers 1976 (2) SA 636 (A). In this examplethe accused is Jeffers. In this criminal case it

was a case of the state against Jeffers. Incriminal cases before 1961 the letter “R” wasused instead of “S”. (Before South Africabecame a Republic the King or Queen ofEngland had sovereignty over South Africa).“R” refers to Latin “Rex” (King) or “Regina”(Queen).

In some cases there is only one party, whoasks the court to grant a certain order on itsbehalf without acting against any specificopponent. For example Ex Parte Martens.

(b) YEAR AND VOLUME OF THE CASEREPORT

One of the South African series of LawReports used most often is the South AfricanLaw Reports issued by Juta and Co. Ltd.When you are given a case to read youshould take note of, and be able to interpret,its reference to aid location of the case itself.This is the reason why in the full reference toa case the year appears after the name ofthe parties. This indicates the year in whichthe case was reported. For example S vJeffers 1976 (2) SA 636 (A). This case canbe found in the second volume of 1976.

The most important decisions in SouthAfrica and in a number of neighbouringstates are reported together as the SouthAfrican Law Reports and the “SA” in the ref-erence indicates that it was published aspart of a series.

The South African Law Reports appears inthe form of twelve monthly issues which arebound together in four numbered volumes ofthree issues each.

(c) PAGE WHERE CASE REPORT STARTS

Now that you have identified where to findthe law report, you need to know the numberof the page on which the case starts. Forexample S v Jeffers 1976 (2) SA 636 (A):This case starts on page 636.

(d) COURT WHERE THE CASE WAS HEARD

HOW TO SUMMARIZE ANDREAD A COURT CASE

By: Magda DeetlefsVryburg Deeds Registry

☞

24

The letter which appears in brackets afterthe number of the page on which the casestarts, is an abbreviation of the court’sname. For example S v Kohler 1979 (1) SA861 (T): The Transvaal Division is where thecase was heard. In Molefe v Mahaeng 1999(1) SA 562 (SCA) the case was heard in theSupreme Court of Appeal. In S v Jeffers1976 (2) SA 636 (A) the case was heard inthe Appellate Division. Decisions of theAppellate Division have more authority thanthose of a Provincial Division.

STRUCTURE OF A REPORTED DECISION

At this stage you should know how to refer toa case and how to find a case in the lawreports. Now we are going to deal with theway in which a case is set out (the structureof a reported decision):

• Judge’s names• Date on which the case was heard• The summary or flynote• The headnote• Legal representatives• Judgement

(a) JUDGE’S NAMES

The name of the judge(s) appear underthe name of the court where the matterwas heard. The letter that appear afterthe names of the judge(s) indicate thetitle(s) of the judge. For example:

• P - President of the ConstitutionalCourt

• DP - Deputy President of theConstitutional Court

• CJ - Chief Judge• JA - Judge of Appeal• AJA - Acting Judge of Appeal• J - Judge• JP - Judge President• DJP - Deputy Judge President

For instance in the case of Simplex (Pty)Ltd v Van der Merwe and Others NNOGoldblattt J was the Judge.

(b) DATE ON WHICH THE CASE WAS HEARD

The date on which the matter was heardappears under the name of the judges. In theSimplex-case 12, 23 May 1995.

If there are two more dates - in the examplegiven above - it means that the case waspostponed or that judgement of the finalorder was handed down at a date later thanthe initial trial date.

(c) SUMMARY OR FLYNOTE

Below the name of the case the relevantpoints of the facts and the decision aresummarized in telegram style. The summaryshould always be used as the first indicationof what a case is all about, before analyzingthe judgement in detail.

(d) HEADNOTE

The summary is followed by the headnote.Usually both, the facts and decision of thecourt, are summarized in the headnote. Thesummary of the facts (usually the firstparagraph of the headnote) and the court’sdecision (usually preceded by the word“held”). For several reasons it is insufficientonly to read the headnote.

(e) LEGAL REPRESENTATIVES

Just below the headnote and before thejudgement, the names of the persons whorepresent the parties appear. In the Simplex-case P M Wullfsohn acted for the applicantand N N Lazarus for the respondents.

(f) JUDGEMENT

Below postea - meaning thereafter, later - (ifit appears) the name of the judge appearsagain. The judgement is the main part of thecase report. The judgement usually containsthe following:

• The facts• Legal question• Finding• Reasons for finding (Ratio decidendi)• Order

(a) FACTS

The facts are usually summarized briefly inthe headnote. The headnote is usefulbecause it gives you some idea of what thecase is about. After that, the judgement itselfmust be read. The court may discuss the

From page 23

☞

25

facts in length, especially if the facts them-selves were in dispute, but the only relevantpart is the court’s final finding with regard tothe facts.

(b) THE LEGAL QUESTION

The legal question is not always stated veryclearly. The summary and headnote might beof assistance in establishing the legal ques-tion. The answer will only be clear if thequestion is clear.

(c) FINDING

Once the legal question has been answered,the relevant legal principles can be appliedto the facts of the particular case.

(d) REASONS FOR THE FINDING (RATIODECIDENDI)

A literal translation of “ratio decidendi”means “the reasons for the decision”. Ratiodecidendi (hereinafter referred as the “ratio”)consists of the legal principles that the courtapplied to the material facts in order to arriveat its decision. The ratio is the mostimportant part of the judgement. In order tofind the ratio, you have to know the law thatis applicable to the case. The ratio can,therefore be described as a legal principle orrule. The ratio will usually be summarized inthe headnote. The ratio must bedistinguished from Obiter dicta which meansremarks in passing. There are casualremarks made by the judge and thereforeirrelevant to the point in discussion.

(e) ORDER

The court order is what the court tells theparties to do and must be distinguished fromthe ratio.

SUMMARIZING

When we summarize something we condense it,so that only the most important points of idearemain. It is like taking the flesh away so thatonly the bare bones remain.

When you summarize court cases, you shouldarrange them so that you can refer back to thesummary to refresh your memory about the

relevant facts of the case and the legal principlelaid down in the case. All other irrelevantmaterial, such as minute factual detail, shouldbe left out.

For this purpose the case of Simplex (Pty) Ltd vVan der Merwe and Others NNO 1996 (1) SA111 will be discussed. A summary will be madeunder the following headings: (a) Facts (b) Legalquestion (c) Finding (d) Reasons for finding:(Ratio decidendi).

FACTS

An agreement of sale was signed after thetrustees were appointed, but before they hadbeen authorized by the Master in terms ofSection 6(1) of the Trust Property Control Act 57of 1988.

According to Section 6(1) of the Trust PropertyControl Act 57 of 1988, any person appointed astrustee in terms of a trust instrument shall act inthat capacity authorized thereto in writing by theMaster.

The provisions of Section 6(1) are peremptory.An act by a person not having the requisiteauthority has no force or effect.

LEGAL QUESTION

Could the agreement be ratified either by theMaster or by the trustees after receipt of thenecessary authority?

FINDING

No.

REASON FOR FINDING (RATIO DECIDENDI)

The court cannot validate acts which areexpressly prohibited by statute.

CONCLUSION

Now you know how important it is for you, to beable to read and understand court cases. This issomething that you will do a lot in your work andstudies. It must be practiced often.

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TAKING SERVICES TO THE PEOPLE

The Department of Land Affairs has launched aninitiative aimed at establishing at least one DeedsRegistry per province in order to take deeds

registry services to the people.

The first phase of this project is the establishment of aDeeds Registry for the province of Mpumalanga atNelspruit. This is to be followed by the expansion of theareas of jurisdiction of the Eastern Cape provinceDeeds Registries at Umtata and King William’s Town.

The provision of a records archive for the NelspruitDeeds Registry presented a considerable logisticalchallenge. After extensive investigation of several alter-natives, including manual replication, the ScanningSolution was found to be the most effective route tofollow. This process entails the digitisation of all thepaper and microfilm records in the Pretoria DeedsRegistry where the Mpumalanga properties arecurrently registered. Then an archive of electronicdocuments must be supplied at the Nelspruit DeedsRegistry for properties situated in Mpumalanga.

The Scanning Solution also offers further benefits,which include:• a means of establishing additional Deeds Registries,

• disaster recovery for existing paper archives, • support for the proposed e-Cadastre, a system for the

electronic submission and processing of deeds anddiagrams, as well as

• full automation for the manual processes whichcurrently form part of the Document Copy System(DCS) of the Deeds Registries.

These benefits prompted the Department of LandAffairs to extend the project to include the nine currentDeeds Registries. During 2003, the Department dulyinstructed the State Information Technology Agency(SITA) to invite proposals for the Scanning Solution fromindustry.

The project consists of two phases, the first of whichentails the digitisation of the Pretoria Deeds Registry’sarchives, the establishment of an archive for theNelspruit Deeds Registry and a central image repositoryat SITA Centurion, which will serve as back-up anddisaster recovery site for the images of all the DeedsRegistries.

The second phase will entail the digitisation of the paperand microfilm archives of the remaining DeedsRegistries, commencing with the Cape Town Deeds

27

DeedsWebThe functionality of the DeedsWeb, the Department of Land

Affairs’ internet-based registration information system hasbeen upgraded and extensively expanded to meet the needs ofthe Deeds Registries’ information clients.

Large-volume information users, including several informationvendors and financial institutions, are still accessing deeds infor-mation via the Aktex Information System, forerunner of theDeedsWeb. These users are in the process of testing a web-based interface, which will enable them also to obtain their infor-mation via the internet.

In due course, the Aktex system, which is becoming increas-ingly difficult and expensive to maintain, will be phased out com-pletely and replaced by the more efficient and user-friendlyDeedsWeb system.

Using DeedsWebIf you are a registered Aktex user, you can use your currentAktex user identification and password to access theDeedsWeb and proceed to sign onto the system directly.

If you are not a registered Aktex user, please register as a newuser on the webpage.

Users connect to the www.deeds.gov.za web-address, whichdirects the browser to the WebSphere application server.

Despite the complexity of the system through which data isretrieved for users, sub-second response times are achievedwith DeedsWeb.

If a man begins with certainties,he shall end in doubts;but if he will be content to begin with doubts,he shall end in certainties.

Francis Bacon • 1561-1626

No man can justly censure or condemnanother, because indeed no man trullyknows another.

Sir Thomas Browne • 1650

A truth that’s told with bad intentbeats all the lies you can invent.

William Blake • 1757-1827

Never make a defence or apologybefore you be accused.

King Charles I • 1636

28

Chief Directorate: Deeds Registration

The nine Deeds Registries in South Africa are located in Pretoria, Cape Town, Johannesburg, Pieter-maritzburg, Bloemfontein, Kimberley, King William’s Town, Vryburg and Umtata. They are responsible forthe registration of deeds and documents relating to real rights in land in respect of more than 7 million

registered land parcels. These parcels represent what is known as “immovable property” and include townshiperven, farms, agricultural holdings, sectional title units and sectional title exclusive use areas.

ADDRESS LIST: DEEDS OFFICESSTREET ADDRESS POSTAL ADDRESS TELEPHONE FAX NR. E-MAIL

CHIEF REGISTRAR: MR N S LEFAFA

Poyntons Building Private Bag X918 (012) 338-7227 (012) 328-3347 SLEFAFA@dla.gov.zaC/o Church & Bosman Strs. PRETORIAPRETORIA, 0002 0001

PRETORIA: MR P MESEFO

Central Government Bldg. Private Bag X183 (012) 338-7035 (012) 338-7103 PEMesefo@dla.gov.zaC/o Vermeulen & Bosman PRETORIAStreets 0001PRETORIA, 0002

CAPE TOWN: MR KESSY PILLAY

New Revenue Building Private Bag X9073 (021) 464-7600 (021) 464-7727 KPillay@dla.gov.za90 Plein Street CAPE TOWN (Registrar)CAPE TOWN, 8001 8000 (012) 462-3540

KIMBERLEY: MS L C SMIT

New Public Building Private Bag X5026 (053) 832-7228/9 (053) 832-5888 LCSMIT@dla.gov.zaC/o Knight & Stead Streets KIMBERLEYKIMBERLEY, 8301 8300

VRYBURG: MR M SECHELE

Government Building Private Bag X1 (053) 927-1076/7/8 (053) 927-4002 OMSechele@dla.gov.za26 De Kock Street VRYBURGVRYBURG, 8601 8600

UMTATA: MR N W MANTANGA

Botha Sigcau Building Private Bag X5040 (047) 531-2150 (047) 531-2873 NVMantanga@dla.gov.zaUMTATA, 5100 UMTATA, 5100 (047) 532-2869

JOHANNESBURG: MR A H STEPHEN

2 Rissik Street P.O. Box 61873 (011) 378-2111 (011) 378-2100 AHStephen@dla.gov.zaJOHANNESBURG MARSHALLTOWN (011) 378-22482001 2107 (Secretary)

PIETERMARITZBURG: MR H P BASSON

300 Pietermaritzburg Street Private Bag X9028 (033) 355-6800 (033) 345-5101 HPBasson@dla.gov.zaPIETERMARITZBURG PIETERMARITZBURG (033) 355-68103201 3200 (Secretary)

BLOEMFONTEIN: MS C C E KNOESEN

Room 67 SARS Building Private Bag X20613 (051) 403-0300 (051) 403-0308 CCEKnoesen@dla.gov.zaC/o Aliwal & Nelson Mandela Strs. BLOEMFONTEINBLOEMFONTEIN, 9301 9300

KING WILLIAM’S TOWN: MR J BADENHORST

113 Alexander Road Private Bag X7402 (043) 642-2741 (043) 642-4539 JLBadenhorst@dla.gov.zaKING WILLIAM\S TOWN, 5601 KING WILLIAM’S TOWN, 5600

29

QuestionWhat do you think it takes to be successful in theDeeds Office?

AnswerThe ground work must be there, in other words if yourfoundation is not there it will be difficult to fully achievesuccess in the Deeds Office. For example, when youare a junior examiner, ensure that you learn all thereis at that level before wanting to go higher and higher.Patience is very important.

As I said earlier, you have to work to the best of yourabilities. As you move to higher positions, it is crucialto be transparent, let staff know what is happeningand what is expected of them and what their bound-aries are.

Furthermore, never try to avoid or run away from prob-lems that you encounter, you have to work throughthem.

We would like to thank Mr. Jodwana for his wordsof advice and his willingness to be interviewed. -Editor

Does the Turquand Rule apply to internalrequirements in a trust deed?H G J BeukesSA Merc LJ - v.16(2), p.264

Customary law in South AfricaT W BennettJuta, 2004

Land matters: New developments 2004(1)Willemien du Plessis, Nic Olivier and JuanitaPienaarSAPL - V.19(1), P.212

Verbod op die verkoop van landbougrondsonder die minister se toestemming kragtensartikel 3(3)(i) van die Wet op dieOnderverdeling van Landbougrond - Geue vNotlingD J Lotz en C J NagelTHRHR - Bd.67(4), p.702An English summary of this article is available.

FrontA Reynolds, L Smit, S Lefafa, N Makgalemele,

C KnoesenMiddle

A Sepp, P Mesefo, G Tsotetsi, M Sechele, K Pillay, A West

BackJ Badenhorst, G Hattingh, A van Jaarsveldt,

C Geldenhuys, A Stephen, H Basson

The Annual Conference of Registrars was heldduring November 2004 at the Blue Lagoon

Hotel in East London.To curb costs, the StrategicPlanning Meeting of the Department of LandAffairs preceded the conference.

The conference, under the chair of the ChiefRegistrar of Deeds, Mr. Sam Lefafa, took 44resolutions, which resolutions are aimed atcreating a uniform practice in all deeds registriesthroughout South Africa.

The Registrar of Deeds from Botswana provideda written apology for not attending theconference, but requested to be invited in future.

Readers are requested to obtain a full set of theresolutions taken from their local registrar ofdeeds.

Certain of the resolutions taken, have beendiscussed by George Tsotetsi in this issue.

RECENTLY PUBLISHEDARTICLES AND

RESEARCH

ANNUAL CONFERENCEOF REGISTRARS

2004By: Allen West

Justice College Pretoria

From page 14

INTERVIEW WITHMR. JODWANA

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LET US GET TO KNOW OUR NEIGHBOURINGREGISTRARS AND THEIR OFFICES BETTER

By: A S WestJustice College Pretoria

MR. JUBA DLAMINIREGISTRAR OF DEEDS FOR

THE DEEDS REGISTRY FOR SWAZILAND

INTRODUCTION

The deeds registry for Swaziland, asestablished under Section 3 of the DeedsRegistry Act 37 of 1968, was situated inPretoria until 25 June 1973. At its establish-ment in Swaziland, all matters and recordskept in the Pretoria deeds registry werebrought to Swaziland and the Deeds RegistryDepartment fell under the portfolio of theMinistry of Justice. When the office startedoperating in Swaziland, its staff componentwas (i) a Registrar of Deeds, (ii) an AssistantRegistrar of Deeds, (iii) three Examiners ofDeeds, (iv) a Clerical Officer, (v) a Typist, and(vi) a Messenger.

MISSION STATEMENT FOR THE DEEDSREGISTRY:

(i) To examine all deeds or other documentssubmitted for execution or registration,and, after examination, to execute orregister them as permitted by law.

(ii) To take charge of and preserve all therecords of the deeds registry in a documentprocessing system that will provide an effec-tive storage and retrieval system, as well asmaximum safety and security.

(iii)To collect revenue for the CentralGovernment in the form of stamp duty,fees of office and search fees.

ACCOMMODATION

Section 3(1) of the Deeds Registry Act 37 of1968 provides that the deeds registry forSwaziland shall be situated at such place asthe Minister may prescribe by notice in theGazette. The Registry is presently situated atthe Government Offices in the Old Income-Tax Building.

ACHIEVEMENTS

STAFFING

Due to an increase in the volume of work, thestaff component has been increasedwithin thelast decade as follows:

Registrar of Deeds 1Senior Assistant Registrar of Deeds 1Assistant Registrar of Deeds 2Senior Examiner of Deeds 2Examiner of Deeds I 2Examiner of Deeds II 5Shorthand Typist 1Typist 1Accounts Officer 1Clerical Officer 2Messenger 1Cleaners 2

To complement this staff, the registry hasrequested four additional posts, namelythat of a Security Guard, a Nightwatchman,a Telephone Operator and a Driver.

EXECUTION AND REGISTRATION OFDEEDS AND OTHER DOCUMENTS

In 1974, the number of deeds and otherdocuments executed and registered in thedeeds registry totalled 938. Two decadeslater, the number had increased to 1 850(1994). To date, the number of these deedsand documents is estimated at 3 000.These are clear signs that this number willkeep on increasing, as more and morepeople invest in real estate.

There are indications that land tenuremight change with new forms of landmarkets and rights on land being intro-duced. Examples are the introduction ofSectional Titles and leasehold over crownland and Swazi Nation Land. Theseintroductions may indeed impact on thecapacity of the deeds registry staff and

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could bring up the issue of institutionalstrengthening.

FROM MANUAL AGE TO DIGITAL AGE

In the late 1980s, the deeds registryconducted a feasibil ity study with theintention of establishing the most suitableand cost effective document managementsystem.

The study came out with two solutions,namely:

• Computerisation of all Deeds OfficeRecords for easy access andretrieval:-

A capital project was submitted toGovernment Central Agencies in 1993and eventually the Government fundedthis project, which started in April 1995.Since that year, the Registry has doneaway with manual land, debts andmiscellaneous contract registersbecause all that information has beencomputerized and can be easilyaccessed or retrieved within seconds.This is an on-going project as theregisters are updated daily whenownership changes hands and newcontracts are entered into.

• Imaging and indexing of all DeedsOffice Records:-

This project, also fully sponsored by theSwaziland Government, started in theyear 2000. Deeds office records arescanned, indexed and electronicallystored for easy retrieval and archivalpurposes. The first step was to scan,index and store electronically all activedeeds and documents from the year1960 to 2000. This has been achieved,and the registry is now on-line. Thesecond step, which is also complete,was to backfile from the year 1959 to1910. All these active records can nowbe viewed and updated on the screen ofthe computer. In shor t, the deedsregistry operates its own local networkwith work stations.

From page 30

The two systems are integrated so thatthey check each other, whenever a need todo so arises. The main goal is establishinga paperless office in future.

HUMAN RESOURCE DEVELOPMENT

The deeds registry recruits and trains itspersonnel on the job. It has been fortunate,however, that in the 1980s it got technicalassistance from the South Afr icanGovernment through her Embassy inSwaziland, to have its personnel study fora National Diploma in Deeds RegistrationLaw. Some officers have taken advantageof this sponsorship and have obtained cer-tificates, while some are still pursuing thisgoal. In addition, the deeds registry has itsown Training Committee and two TrainingOfficers, to guide and make needs assess-ment in an effort to train its personnel. Asa result, officers have obtained certificatesfrom various courses and are wellequipped to carry out their respectiveduties, thus increasing productivity.

COLLABORATIVE EFFORTS

As a custodian of Swaziland’s LegalCadastre, the deeds registry does not onlysupply other Government Depar tmentsdealing with land related data withinformation, but also attends to variousworkshops and committees where land is asubject matter, be it a project, policy, landallocation or dispute over ownership andso forth. Clear examples are the presenturban development project, the formulationof a National Land Policy, Peri-urbanPolicy, Resettlement Policy and the futureestablishment of a Land InformationSystem.

The deeds registry is also helping CentralGovernment in the collection of revenue,mainly from stamp duties, fees of officeand search fees.

THE FUTURE

The Deeds Registry intends to achieve thefollowing in future:-• Reduce paperwork as an effort towards a

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paperless office. This depends on thestability and reliability of the currentlyongoing projects mentioned above.

• Electronic lodgement of deeds anddocuments:

Because deeds and other documents arenow electronically stored, the Registry willinvestigate the possibility of putting aninfrastructure in place, that will enableconveyancers to lodge and prepare theirdocuments at their work place. For this tohappen, conveyancers would have to applyand get licensed for a gateway facility. Thiswould not only make conveyancing fasterand more efficient, but would also improverevenue collection for the deeds registry.

• Moving Swaziland’s National LandInformation Service into the public arena:

This can be achieved by linking andhousing together the Deeds Registry andthe Surveyor-General’s Office so that aone-stop information centre can beestablished.

• Establishing a Land Information System.This is a long overdue and certainly costly,but cost effective exercise. Linkingtogether the Deeds Registry and theSurveys Departments can form the basisof this National Project, which has invalu-able benefits. Allocation of NaturalResources is best achieved when aNational Land Information System is inplace.

• Articulation and registration of all rights inand on land including allocations on SwaziNation Land. This could facilitate solvingChiefs’ boundaries and community andindividual disputes. It can further formaliseland holdings on Swazi Nation Land andcontrol informal settlements and landmarkets.

CONSTRAINTS

(a) The biggest constraint, perhaps for the Ministryas a whole, is budgetary. In order to realize theabove goals the Deeds Registry must:-

• Be adequately staffed. This is not easybecause of the present zero growth.

• Obtain funds for establishing a NationalInformation Service Centre and aNational Land Information System,

• Obtain funds for hardware maintenance,software upgrading, software licensingand systems administration.

We are of the opinion that, unless governmentchanges its National Budgeting approach,ministries and their departments may fail toperform to their utmost expectations.

(b) The absence of a National Land Policyhinders development of land generallyfor the whole country, in par ticularwhere issues of access to land, land useand security of tenure are concerned.

(c) The Deeds Registry is also affected byadministrative procedures, namely:-

(a) Centralisation of the budget by theMinistry, and

(b) Allocation of funds by activityinstead of by responsibility centre.

The main problem here is that a responsi-bility centre cannot order and dispatch pay-ment on its own, as and when the needarises. In order to order material, a requisi-tion form has to be filled by the centre. As ifthis were not enough, the money budgetedfor an item might be exhausted by anothercentre sharing the same activity.

CONTACT ADDRESS:THE REGISTRAR OF DEEDSP O BOX 297MBABANESWAZILANDTELEPHONE NO: 4041633 / 4049831SITUATE: OLD INCOME TAX BUILDINGCONTACT PERSON: JUBA DLAMINI

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From page 31

Q; Tell us something about yourcareer history.

A; “I started working at the KingWilliams Town Deeds Registryon the 12th of May 1958 as aclerk, the equivalent of a DeedsController Level 2.

Then, on the 2nd of January 1967, I wastransferred to the Vryburg Deeds Registry ata time when our first child, Rhona, was onlysix months old. We did not own a house andmy salary was R130,00 per month. I waspromoted shortly after arriving in Vryburg.I was seconded to Botswana in January1969, and my task there was to bring theirrecords and practices in line with those inSouth Africa, as they followed our Act47/1937. I spent almost all of my time inBotswana on my own, as my wife had toreturn to Vryburg for medical treatment whenshe was expecting our second child,Colleen.I was then transferred back to King William’sTown in May of 1969 and only stayed therefor six months before being transferred toPietermaritzburg in 1970.During my short stay in King William’s TownI was promoted to A/O “Chief DeedsController”.I stayed in Pietermaritzburg for 13 years andour third child, Louise, was born there. I waspromoted to Assistant Registrar of Deeds inPietermaritzburg.In 1984 I took a straight transfer to CapeTown, where I became a Deputy Registrar in1991. I was the Registrar in Cape Town fromNovember 1995 until I retired in December1998. My Deeds Office career thus lasted forforty years and seven months.

Q; What was the biggest challenge of yourcareer.

A; “Two things stand out, one being the work Idid in the Botswana Deeds Registry, where Ihad to bring their systems, practices and

procedures in line with that of theSouth African Deeds Registries.The other was the work I did on thedrafting of the complete Sectionsand Regulations of the currentSectional Titles Act, 95 of 1986. Thework was very satisfying. It was niceto draft legislation from a prac-

titioner’s point, thus making theAct easy to use. The exercisewas also exciting. I rememberone occasion, where the ChiefRegistrar of Deeds, Mr. VanVuuren phoned me in CapeTown at twelve in the afternoonand told me to be on the four pmflight to Pretoria. Once we haddrafted the entire Act in Englishwe had to translate it intoAfrikaans. Mr. Cleary, ex-Registrar of King William’s Townand currently living in CapeTown, also assisted with thisproject.

Q; What was your best career move and why?A; “It was my move from Pietermaritzburg to

Cape Town, because the size of the office aswell as the volume and variety of work I wasexposed to gave me a lot of insight andexperience. This experience enabled me tomake the best use of later opportunities thatpresented themselves.

Q; What made you decide to pursue a career inthe Deeds Office?

A; “Quite frankly, I had no idea what the DeedsOffice was or what they did there, until Iwalked in and someone told me. I did, how-ever, want a career in the civil service. Thejob security and benefits were appealing atthe time. I enjoyed the work to such anextent that I ended up staying there for over40 years.

Q; Was it always your eventual goal to becomea Registrar and did the post of Registrar live

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INTERVIEW WITH RAY KRETZMANN(FORMER REGISTRAR OF DEEDS CAPE TOWN)

By: Warren HamerCape Town Deeds Registry

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up to all you dreamt it would be?A; Yes, already early in my career I did aspire

to becoming a Registrar and, yes, the job didlive up to all my expectations, but at thesame time it was very challenging anddemanding.

Q; What would you like to see happening withthe registration system in SA?

A; I would like the system to remain a “certain”one, where the validity of title is guaranteedby the quality of the registration process andnot to follow foreign trends where title has tobe guaranteed by insurance because theydon’t have an effective and efficient regi-stration system like ours.

Q; What advice would you give to the peoplecoming up the ranks?

A; My advice to them would be to strive and tomake themselves competent to such anextent that they will become indispensable.

Q; Would you advise a person to follow a careerin the Deeds Office, and why?

A; Yes, provided the person has a genuineinterest in the registration system and is notjust there because they need to pay bills atthe end of the month. I found it exceptionallyrewarding to have a career that has such aprofound impact on our economy as well asthe lives of the majority of our citizens.

Q; How are you currently filling your days?A; I enjoy spending time working in my garden.

I also do a lot of handy-man jobs, whichinclude woodwork, building cupboards,grouting, plumbing, etc. around the houseand for the children and friends. Thys Bester,an “ex-Cape Town Registrar” and I still keepbees as a hobby. I hunt a few times a yearand had a good hunting trip to Namibia ear-lier in the year. I try to go fishing in theEastern Cape at least once a year.Occasionally I spend Sunday afternoonswatching my eldest grandson, Bradley, theWestern Province U/13A cricket captain,play his matches.

I am, however, spending an increasingamount of time working as an independent

Beware of turning a blind eye!!

An employee who witnesses an act ofmisconduct and chooses to remain passive innot identifying the perpetrators could facedisciplinary action and even dismissal. TheLabour Appeal Court, in Fawu v AmalgamatedBeverage Industries in 1994, ruled in a casein which striking workers had assaulted a so-called scab worker that ‘in the field ofindustrial relations, it may be that policyconsiderations require more of an employeethan that he merely remain passive and hisfailure to assist in an investigation of thissort may itself justify disciplinary action’.

COMMUNAL LAND RIGHTS

The Communal Land Rights Act 11 of 2004 waspublished in GG 26590 and will come intooperation on dates to be determined byproclamation.

The Act aims to provide for

• legal security of tenure by transferringcommunal land to communities or byawarding comparable redress;

• the conduct of a land rights enquiry todetermine the transition from older rights tonew order rights;

• the democratic administration of communalland by communities;

• Land Rights Boards; and• The co-operative performance of municipal

functions on communal land;

Application

The Act applies to

• State land which is beneficially occupied;

• State land which is at any time vested in- a government contemplated in the Self

Governing Territories Constitution Act 21of 1971, before its repeal;

- a government of the former Republics ofTranskei, Bophuthatswana, Venda orCiskei;

- the South African Development Trust(excluding land which has been disposed

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From page 33By: Allen West

Justice College Pretoria

DID YOU KNOW?

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of in terms of the State Land Disposal Act48 of 1961);

• State land which was listed in the schedulesto the Black Land Act 27 of 1913, before itsrepeal, or the schedule of released areas interms of the Development Trust and LandAct 18 of 1936, before its repeal;

• land to which the KwaZulu-Natal IngonyamaTrust Act 3 (KZ) of 1994 applies (but only tothe extent provided for in Chapter 9 of thepresent Act);

• land required by or for a community whetherregistered in its name or not; and

• any other land determined by the Ministerresponsible for land affairs, including landwhich provides equitable access to land fora community as contemplated in Section25(5) of the Constitution.

Juristic personality of community

‘Community’ is defined in the Act as ‘a group ofpersons whose rights to land are derived fromshared rules determining access to land held incommon by such group’.

Section 3 provides that a community, onregistration of its community rules in terms ofthe Act, acquires a juristic personality withperpetual succession regardless of changes inits membership.

Such a community with juristic personality may

• acquire and hold rights and incur obli-gations; and

• own, encumber by mortgage, servitude orotherwise and dispose of or otherwise dealwith movable and immovable property.

Transfer and registration

Communal land and the new order rightscreated under the Act will be capable of beingand will have to be registered in the name ofthe community or person (including a woman)entitled to such land or rights in terms of theAct or the relevant community rules.

Conveyancer

Section 7 provides that a suitably qualifiedofficial of the Department of Land Affairs mayperform the functions of a conveyancer in termsof the Deeds Registries Act.

Conversion into freehold

The holder of a registered new order right mayapply to the community owning the land towhich such right relates for the conversion ofthat right into freehold ownership. If thecommunity approves the conversion, it mayimpose any condition or reserve any right infavour of the community. The Registrar ofDeeds must record the conversion in theprescribed manner.

Other provisions

Other chapters of the Act deal with

• provision of comparable redress wheretenure cannot be legally secured;

• the conduct of a land rights inquiry;

• content, making and registration of com-munity rules;

• establishment of a land administration com-mittee for a community;

• establishment of one or more Land RightsBoards by the Minister;

• special provisions relating to the KwaZulu-Natal Ingonyama Trust Land;

• acquisition of land by the Minister (includingexpropriation); and

• extension of access to the courts byproviding that the Minister and a board eachhave the legal capacity to institute orintervene in any legal proceedings arisingfrom or related to this Act, both in their owncapacities and on behalf of any communityor person.

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LETTERS TO THE EDITOR

First Published in De Rebus September 2004and Republished with Permission

ATTACHMENT AGAINST FIXED PROPERTY- BEWARE THE JUDGMENT CREDITOR

My firm attended to the registration of transferof a property in the Free State, where wewere unfortunately not covered for costs.

We had to sue the purchaser and, as a resultthereof, obtained an attachment against theproperty that he had purchased. We then satback, knowing that he would not be able tosell the property without the interdict firstbeing lifted, as we were aware of a bond thathad been registered against the property andthat would have received preference.

Much to our surprise it transpired during aroutine deed search, that the property had infact been sold, in spite of our interdict. Weasked our correspondent to approach theRegistrar in this respect and to ascertain howthis could possibly have occurred.

The reply we got from the Registrar of Deedson 12 May this year was as follows:

“The property was sold in execution on 14November 2003 by public auction in terms ofAttachment Case .../2003 between ... and ... .The transfer was registered under .../2004 on25 March 2004. All other attachments werepurged after the registration.”

On receipt of this letter from the Registrar wetook issue with him, whereupon we receivedthe following letter dated 20 May:

“1. In the case of more than one attachmentnoted against the property, the creditorwho takes action and sells the property isentitled to demand transfer without with-drawal of the other attachments;

2. This ruling was already confirmed in 1958(Registrars’ Conference Resolution5/1958).”

This ruling seems crazy. What on earth is thepurpose of an attachment if a later creditor

can sell despite a previous creditor’s validclaim? In this particular case, the bank wasno doubt a preferent creditor and sued on thebond. But what if this had not been so?

A V TheronAttorney, Sasolburg

The unedited response from the office of theChief Registrar of Deeds to the above letter isas follows:

In response to a letter that appeared on page4 of the De Rebus, September 2004 under theheading ‘Attachment against fixed property- beware the judgment creditor’, an attorneyby the name of A V Theronquotes theRegistrar of Deeds: Bloemfontein as follows:

“1. In the case of more than one attachmentnoted against the property, the creditorwho takes action and sells the property isentitled to demand transfer without with-drawal of the other attachments;

2. This ruling was already confirmed in 1958(Registrars’ Conference Resolution5/1958)”,

and proceeds to make the followingstatement:

‘This ruling seems crazy. What on earth is thepurpose of an attachment if a later creditorcan sell despite a previous creditor’s validclaim? In this particular case the bank was nodoubt a preferent creditor which sued on thebond. But what if this had not been so?’

The circumstances leading to the above state-ment are clearly spelt out in the relevant letterand will not be repeated here.

Though the learned Theron does not clearlyspell out what she/he expected the Registrarof Deeds to do under the circumstances, areasonable deduction can be made thatshe/he expected the Registrar of Deeds torefuse registration and insist that pr iorattachments be first lifted by the Sheriff. Inthis regard, Theron seems to be oblivious ofthe provisions of Section 66(6) of the

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RESPONSE TO LETTERSTO THE EDITOR ONSECTIONAL TITLE

By: O WadePietermaritzburg Deeds RegistryMagistrates Courts Act, 1944 (Act No. 32 of

1944). The said section does not only makethe attachment of property already underattachment possible, but also makes itpossible that such property can be sold inexecution at the instance of a later judgementcreditor. It is interesting to note that thissection makes no mention of the lifting ofprior attachments by the Sheriff as being acondictio sine qua non for the salecontemplated therein. The question that thenarises is: What would be the legal basis onwhich a Registrar of Deeds would refuse togive effect to a sale ordered by a Court oflaw? There seems to be no such legal basis.

As regards the question: What if this had notbeen so?, the answer is simple and is thatnothing would change, because the identity ofa judgement creditor is irrelevant under thecircumstances.

From what has been said above, it is clearthat Theron is venting her/his anger at thewrong target, for it is the law that permits thesale of a previously attached property by alater judgement creditor and not Registrars’Conference Resolution 5/1958.

It must be categorically stated that the effectof noting an attachment interdict in a deedregistry is to debar dealings by the registeredowner of the property concerned. Once aSheriff passes transfer, it is not for the deedsregistry to question at whose instance thetransfer is being passed. All that the deedsregistry has to do is to ensure that the Sheriffpasses transfer and not the registered owner.The practice is to purge all attachments andbonds noted against the relevant property asthey are inextricably linked to the formerregistered owner. There is absolutely nothingwrong with this practice. It would be improperto keep interdicts that were noted prior to thetransfer by the sheriff as the same wouldunnecessarily hinder subsequent dealings bythe newly registered owner who was not partythereto.

It must be pointed out that I was the “anonymousconveyancer” referred to in the article that appeared in theJuly 2004-Edition of the SADJ. These submissions wereoriginally sent for rulings to the Chief Registrars’ Office.

1. With regard to George Tsotetsi’s submission of lodgingbonds for disposal, where a portion of the commonproperty is transferred in terms of Section 17 of theSectional Titles Act, Act 95 of 1986, I totally agree thatall such bonds should be lodged for endorsing withregard to the release of a portion of the commonproperty. Section 18 of the Act provides that the pro-visions of Section 56 and 57 of the Deeds RegistriesAct, Act 47 of 1937, apply. Certain conveyancers andexaminers have proposed not lodging the bonds, butmerely filing such consents to release in the main file ofthe scheme. This was merely an alternative proposalput forward and was not the view of this examiner.

2. I have, however, severe criticism with regard to Mr.Tsotetsi’s notions on issues surrounding portions ofrights to extend, which I will refer to as “split rights”. Withregard as to whether before the establishment of theBody Corporate, it is possible for a developer to whompart of the right to extend has been ceded, to createexclusive use areas, the following issues have to belooked at.

Where a new Developer “stepped into the shoes” of theoriginal Developer in terms of Section 34(3) of theSectional Title Act, Act 95 of 1986, which provides “when adeveloper has in one transaction alienated the whole of hisinterest in the land and the building or buildings comprisedin the scheme, or a share in the whole of such interest, toany other person, the Registrar shall register the transac-tion by means of a deed of transfer in the case of units andby means of a bilateral notarial deed of cession in the caseof rights reserved under section 25 and 27”, the develop-er’s successor in title may utilize the provisions of Section25(6A) and Section 27(1A) of the Sectional Titles Act No95 of 1986 as though he were the original developer of thescheme, where no body corporate has been established.The provisions of Regulation 29 would, however, have tobe adhered to.

A distinction has to be made between the case, where theoriginal developer, or his/her successor in title, is contem-plated in terms of Section 34(3) of the above Act, andwhere the developer has ceded a portion of his right toextend in terms of Section 25(4)(b) of Act 95 of 1986. Interms of Section 25(4)(b) of the above Act, it is provided

From page 36

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that a right to extend, reserved by the developer in termsof Section 25(1) of the Sectional Titles Act or vested interms of Section 25(6) of the above Act, in respect ofwhich a certificate of real right has been issued, “may betransferred by the registration of a notarial deed ofcession in respect of the whole, or a portion in such right:Provided that in the case of a cession affecting only aportion of the land, comprising the scheme only to suchportion shall be identified to the satisfaction of theSurveyor General.”

Section 34(3) provides for the transfer of the whole of hisinterest in the scheme, which includes all the units,Certificates of Exclusive Use Areas as well asCertificates of Rights to Extension = “steps in the shoesof the original developer”.

Section 25(4)(b) only refers to the Right of the Extensionand that right is limited to what the original developerreserved, e.g.original developer A has reserved the rightto erect 5 additional units within a time period of 2 yearsand has reserved no additional exclusive use areas.Theoriginal developer ceded the right to erect one of theseadditional units within that 2-year time period to develop-er B. Developer B’s right only includes the right to erectthat unit within the 2-year time period. (The SurveyorGeneral approves a Real Right diagram for the pro-posed section - within which that unit, and only that unit,may be erected). Once developer B has registered thephase in respect of his unit, the remainder of the realright becomes common property. If no body corporatehas been established, then the original developer(Developer A) may utilize the provisions of Section27(1A) and Section 25(6A) of the Sectional Titles Act, ifdesired, provided that Regulation 29 has been compliedwith. It has to be emphasized that the original developercan cede only as much as he originally reserved, e.g. ifno exclusive use areas were reserved, either initially orthereafter in terms of Section 27(1A), he cannot cedethe right to acquire such/any exclusive use area to a sub-sequent purchaser of a portion of a real right to extend.

The argument from George Tsotetsi could result in allthe developers, who received a portion of a right toextend in terms of Section 25(4)(b) of Act 95 of 1986,reserving their own rights to extend exclusive use areas,and making rules within such real right areas on theirown accord, where no body corporate has been estab-lished. A more feasible alternative to the above argu-ments would have been that the original developer, inaddition to all “other developers”, i.e. those who haveregistered schemes of extension in respect of their por-tions of real rights, jointly invoke the provisions of Section25(6A) and Section 27(1A) of the above Act.

In addition, it is submitted, no matter what the argumentsare, the same person is able to take out the Section

25(6A) and Section 27(1A) right, and in my view only the“original developer”.

With regard to the provisions of Regulation 29, whichprovides “A registrar shall not issue a certificate of realright contemplated in Section 25(6A) or Section 27(1A)of the Act, unless a conveyancer certifies:

(a) that no unit in the scheme has been sold, donatedor exchanged; or

(b) if a unit was so alienated, the developer disclosedin writing to the acquirer thereof that application isto be made for the issuing of a certificate of realright in terms of Section 25(6A) or Section 27(1A)of the Act.”,

Mr George Tsotetsi suggests that this regulation isprimarily aimed at future owners and future developers.Surely I, as a future developer, could be greatly affectedif the original developer or, according to another view,“any other developer”, wishes to reserve additionalexclusive use areas and rights of extension over andabove those that were originally reserved. I havepurchased a cession of a portion of a Right to Extendwith a superb sea view, taken out a million rand bondover such right, and thereafter the “original developer”reserves a right to extend in terms of Section 25(6A) fora double storey in front of my proposed section, or evenan enourmous carport, which would take away my seaview. According to George Tsotetsi, Regulation 29 doesnot protect me, as I am a future developer and not afuture owner.This I cannot agree with.

Regulation 29 should be amended to afford protection.

As regards the question as to when the body corporateshould be deemed to be established, I cannot compre-hend how the imposition of a penalty will solve theproblem of the formation of the body corporate. Whereindividual co-developers have registered their phases fortheir portions of their Rights to Extend and no co-developer has transferred his unit, there is still no bodycorporate.

The provisions of certain sections/regulations in theSectional Titles Act No 95 of 1986 are vague, whichleads to different interpretations, as can be seen fromthe above articles regarding only one aspect of the Act.It is suggested that the whole Sectional Titles Act belooked at with regard to vagueness of certain sections inthe Act, which provide loopholes and cause uncertainty.

Hopefully, these interpretations will be addressed inthe legislation review process - Editor

From page 37