THE PRACTITIONER’S GUIDE TO CONVEYANCING AND NOTARIAL PRACTICE

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The Practitioner’s Guide to Conveyancing and Notarial Practice - 2013 Edition

CHAPTER 33

Sectional Title matters

33.1 Opening of Sectional Title Register

After the Surveyor-General has approved a draft sectional plan of a sectional title scheme, the developer of such scheme may apply to the Registrar in charge of the deeds registry, where the land utilised by the scheme is registered, to open a sectional title register in regard to the land concerned and the building or buildings, as well as the registration of the sectional plan.

In terms of the definition of owner in section 1 of the Sectional Titles Act 95 of 1986 (the Act), a sectional title register cannot be opened on a leasehold or on property governed by Proclamation R293 of 1962 (see RCR 80 of 2010 and RCR 81 of 2010, as confirmed by RCR 18 of 2011).

Before the sectional title register is opened, no units may be transferred and a developer will, therefore, apply for the opening of the sectional title register as soon as possible after approval of the draft sectional plan.

It is practice in deeds registries that, when applying for the opening of a sectional title register, the deeds and documents, required by the Act, for the opening of a sectional title register, are lodged in covers and are linked in a certain suggested numerical sequence.

In this chapter attention will be paid to the documents required for the opening of a sectional title register, as well as the covers in which they have to be lodged, and other diverse matters relating to sectional title ownership.

First cover - ApplicationThis cover must contain the application for the opening of the sectional title register. A Liquidator may apply for the opening of a sectional title register, if duly authorised thereto by the second meeting of the creditors. The bondholder must consent to the opening of the register as prescribed under the Act. The bonds must be carried forward onto the certificates of registered sectional title and certificates of real rights, if any (RCR 82 of 2010). However, an executor, administering the estate of a deceased developer may only apply for the opening of a sectional title register if the deceased had dealt with units in the scheme, prior to his/her death (see RCR 19 of 2011 as amended by RCR 7 of 2012). The application is drawn in accordance with prescribed form B to Annexure 1 of the regulations, promulgated under the Act, along the following lines:

Prepared by me CONVEYANCER A AKTEMAN

APPLICATION UNDER SECTION 11(1) OF THE SECTIONAL TITLES ACT 95 OF 1986We, the undersigned,

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Title deedThe application must also be accompanied by the title deed of the land (section 11(3)(c)). If the title deed is lost or destroyed, application must be made for a certified copy. Title deeds of real rightThe title deed to any registered real right to which the land is subject, apart from the title deeds to mineral rights, must also be lodged. If the title deed of one or other registered real right is, however, not available, the conveyancer may lodge a certificate to that effect to the registrar of deeds concerned who in turn will note a caveat in this regard(regulation 10(2)(a)).

Sectional planThe sectional plan must be lodged in duplicate. Note that the sectional plan must already have been approved by the Surveyor-General.

JAN NEL IDENTITY NUMBER 600630 5051 01 8

and

MARIE NEL IDENTITY NUMBER 621014 0007 00 9

MARRIED IN COMMUNITY OF PROPERTY TO EACH OTHERhereby apply to the registrar of deeds at Pretoria for

1. the opening of a sectional title register in terms of the provisions of section 12(1)(b) of the Sectional Titles Act, 1986, and the registration of the attached sectional plan in terms of the provisions of section 12(1)(a) of the Act, in respect of the scheme known as Monument S.G. No 102/91 and held under Title Deed No. T 161/1990;2. the issue of certificates of registered sectional title in terms of the provisions of section 12(1)(d) of the Act in respect of the sections shown on the said sectional plan;*3. the issue of a certificate(s) of real right in terms of the provisions of section 12(1)(e) of the aforesaid Act in respect of any proviso in terms of section 25(1), and*4. the issue of a certificate(s) of real right in terms of the provisions of section 12(1)(f) of the abovementioned Act in respect of a right of exclusive use referred to in section 27(1).

SIGNED at PRETORIA on ...............................................

Signed

Signed

*In the application, depending on circumstances, application is made for:• registrationofthesectionalplan;• openingofthesectionaltitleregister;• issuingofcertificatesofregisteredsectionaltitleforeachofthesectionsshownonthesectionalplan;• issuingofacertificateorcertificatesofrealrightofextensionintermsofsection25(1)(ifthedeveloper has reserved such a right); and• issuingofacertificateorcertificatesofrealrightinregardtotheexclusiveuseareasasreferredtoin section 27(1) and which appear on the sectional plan.

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Schedule of conditionsIn terms of section 11(3)(b) read with regulation 10(3), a schedule has to be lodged in which a conveyancer certifies and sets out the servitudes and title conditions burdening or benefiting the land as well as the other registrable conditions imposed by the developer. All newly imposed conditions must be registerable in terms of section 63 of the Deeds Registries Act (see RCR 58 of 2008).

RulesIf the developer amends, supplements, substitutes or revokes the management or conduct rules or both, the conveyancer must certify to what degree the rules have been amended. The amended rules made by the developer to substitute the statutory rules, must then be lodged (section 11(3)(e)).

Where the prescribed Annexure “8” and “9” rules are not amended, there will be no objection, if the conveyancer’s certificate to this effect is lodged together with the application in this cover.

Documents for extension of the schemeIf the developer imposed a condition in terms of section 25(1) to extend the scheme sometime in future, the following documents must also be lodged:

(i) A plan to scale of the existing building or building to be erected indicating the following:

• thepartofthecommonpropertyaffectedbytheextension; • thesiting,heightandcoverageofallbuildings; • theentrancesandexiststotheland; • thebuildingrestrictionareas(ifany); • theparkingareas;and • thetypicalelevationtreatmentofallbuildings(section25(2)(a)).

(ii) A plan to scale showing the manner of division of the building or buildings to be erected into a section or sections and any exclusive use areas (section 25(2)(b)).

(iii) A schedule showing the estimated participation quotas of all the sections in the scheme after such section or sections have been added to the scheme (section 25(2)(c)).

(iv) Particulars of any substantial difference between the materials to be used in the construction of the building or buildings to be erected and those used in the construction of the existing building or buildings (section 25(2)(d)).

(v) A certificate from an architect or surveyor that the plans lodged in terms of section 25(2) (a) and (b) are in accordance with the specifications of the Act (RCR 61 of 2008, as amended by RCR 11 of 2011).

Note: No objection will be raised if the abovementioned documents are lodged together with the certificate of real right in the fourth cover.

Second cover - Consent by mortgageeIn terms of section 11(3)(d) the holder of a mortgage bond burdening the land, must consent to the following:

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• theopeningofthesectionaltitleregister;and

• theendorsementofsuchbondtotheeffectthatitattachestothesectionsandcommonproperty shown on the sectional plan, the certificate of real right of extension, and the certificate of real right in respect of a right of exclusive use area (if applicable).

The mortgagee may, of course, demand recompense in which case consent will be given for the cancellation of the bond.

The mortgage bondThe mortgage bond must also be lodged. If the mortgage bond is not available, application must first be made for a certified copy thereof before application can be made for the opening of the register, unless, of course, the bond is lodged for cancellation, in which case regulation 68(11) of the Deeds Registries Act can be invoked.

Third cover - Certificate of real right of exclusive use areas (if any)If the developer imposes a right of exclusive use area in regard to one or more sections as a condition, a certificate or certificates of real right, drawn in accordance with prescribed form G to the regulations, must be issued to the developer (section 12(1)(f)).

Each type of exclusive use area will be described in a separate paragraph in the certificate of real right, alternatively certificates of real right can be issued for each of the exclusive use areas, so reserved (see section 12(1)(f), as amended).

Fourth cover - Certificate of real right of extension (if any)If the developer has reserved a right of extension of the scheme by the addition of sections and/or exclusive use areas as a condition in terms of section 25(1) of the Act, a certificate or certificates of real right, drawn in accordance with prescribed form F to the regulations, must be issued to the developer. Section 12(1)(e) provides for more than one certificate to be issued for the reserved right (see section 12(1)(e) as amended).

Note: The period within which the developer must accomplish the extension must be mentioned in the certificate(s) of real right.

Fifth and subsequent covers - Certificates of registered sectional titleA certificate of registered sectional title (form C) is issued to the developer and must be lodged for each section together with the undivided share in the common property allocated to each of such sections.

The certificates of registered sectional title of each of the units must be lodged in separate covers.

General aspects which must be adhered to before a sectional title register can be opened:

Restrictive conditionsWhere the title deed of land in respect of which a sectional title register is being opened contains a condition that a building of not more than two stories may be erected, or that only one dwelling house may be erected on the land etc, the sectional title register may not be opened until the

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conditions are removed in terms of the Removal of Restrictions Act, 1967 or an order of court is obtained (see RCR 30 of 1987 as confirmed by RCR 42 of 2004). It is not acceptable to accept a certificate from the holder of the right for the condonation of the restrictive condition (RCR 8 of 2010). The opening of a sectional title register is not tantamount to a subdivision of land and thus a condition prohibiting subdivisions need not be cancelled before the register can be opened (RCR 78 of 2012).

Land subject to a usufructWhere the land to be incorporated into a sectional title scheme is subject to a usufruct, the usufructuary may join the bare dominium owner in applying for the opening of the sectional title register, alternatively the usufructuary may consent to the opening of the register. However, all the certificates of registered sectional title must be made subject to the usufruct (see RCR 45 of 2004 and RCR 11 of 2010).

Compliance with Acts 70 of 1970 and 21 of 1940Where a sectional title register is opened on land encompassing the word “farm” in the property description, the provisions of CRC 6 of 2002 must be adhered to as well as the uniform practice as provided for, for the applying of section 11(4) of the Advertising on Roads and Ribbon Development Act 21 of 1940 (see RCR 48 of 2007 and RCR 49 of 2007).

33.2 Transfer of ownership

When a sectional title register has been opened and the certificates of sectional title concerned registered, ownership in any unit shall, subject to the provisions of the Act, or any other law, be transferred by means of a deed of transfer signed or attested by a registrar of deeds (section 15B(1) of the Act).

The deed of transfer to effect transfer of a sectional title unit, must be drawn in accordance with prescribed form H set out in Annexure 1 to the regulations of the said Act. Such deed of transfer must be executed in the presence of a Registrar by the owner of the unit or on his behalf by a conveyancer, duly authorised thereto by virtue of a power of attorney.

The prescribed form for the transfer of a sectional title unit differs in many respects from the conventional deed of transfer (prescribed form E), published in terms of the regulations under the Deeds Registries Act of 1937.

When analysing the prescribed form of a sectional title transfer cognisance must be taken of the following aspects which are unique to such a transfer:

The causaUnlike the conventional transfer of ownership in land, the prescribed form for a sectional title transfer does not make provision for a consideration clause, thus the causa of such deed must contain the date of the transaction and any compensation paid for the unit concerned or the value of the property on which the registration fee must be charged (RCR 34 of 2012). If the compensation paid for the unit includes the purchase price for any exclusive use area etc., this fact must also be reflected in the causa. In all other respects the causa of the deed is similar to that of a conventional deed of transfer.

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The vesting clauseThis clause contains the full names, marital status, identity number (and/or date of birth) of the person who is entitled to the unit. In the case of natural persons no reference must be made to “heirs, executors, administrators or assigns”. Similarly, in the case of local authorities, companies, close corporations and associations, no reference must be made to “successors in title or assigns”. The omission of these words from the prescribed form was deliberate and not, as often thought, an omission on the part of the legislature.

The description of the unitThis clause identifies the unit being transferred and must contain the following information:

• thesectionnumber;• thesectionalplannumber;• thenameofthescheme;• thesituationofthelandandbuilding(s)i.e.thenameofthetownshipandlocalauthority;• thefloorareaofthesection;and• thereferencetotheundividedshareinthecommonpropertyasreferredtoonthesectionalplan.

In terms of RCR 64 of 2008 where the scheme is established on farm land, the full description of the farm inclusive of registration division and province must be disclosed in the description of the section.

The extending clauseIn this clause reference must only be made to the existing holding deed(s). Prescribed forms TT and UU of the regulations to the Deeds Registries Act of 1937 do not apply.

The conditional clauseThe general conditions registered against the scheme as a whole, must not be incorporated in the conditional clause of the deed of transfer. However, reference must be made to the fact that the unit concerned is subject and/or entitled to the conditions contained in the schedule of conditions referred to in section 11(3)(b) as well as the servitudes contained in section 28 of the Act or where the scheme was opended under the repealed Sectional Title Act 66 of 1971, reference to the conditions endorsed on the sectional plan and the servitudes as referred to in Section 19 of the Sectional Titles Act 66 of 1971 must be made (RCR 61 of 2012). Special conditions, i.e. conditions applicable to the unit as such, must be incorporated immediately after the aforesaid conditions. In respect of such conditions, the provisions relating to the creation of conditions contained in the Deeds Registries Act of 1937 applies mutatis mutandis. In terms of RCR 29 of 2002 as confirmed by RCR 6 of 2008 and RCR 3 of 2011, Home Owners Association conditions and other restrictive conditions pertaining to the particular section must be included in the deed of transfer. In the same vein, if an exclusive use area is tied to a section in a sectional title scheme, such tie condition is regarded as a restrictive condition and must be incorporated in the title of the section concerned as well as the title of the exclusive use area. If it is anticipated to untie such exclusive use area, the body corporate must apply for the untying thereof where the developer no longer exists (RCR 43 of 2004). Examiners/practitioners must examine the section 11(3)(b) schedule and if any conditions are forthcoming, such conditions must be incorporated.

Supporting documentsThe supporting documents required for the transfer of a sectional unit are similar to those for conventional deeds. However, the said Act provides for certain specific documents and/or proof

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which must be lodged. For purposes of this chapter only those documents which are specifically prescribed by the Act will be discussed.

Conveyancer’s certificate in terms of section 15B(3)(a)A registrar shall not register the transfer of a unit, unless there is produced to him/her a conveyancer’s certificate confirming that, as of date of registration of the unit into the name of the transferee –

• that, if a body corporate is deemed to be established, the body corporate has certified that all monies due to such body corporate by the transferor have been paid or secured or if the body corporate has not as yet been established, no monies are payable (section 15B(3)(a)(i)); and

• thatnorealrightofextensionisregisteredorifsuchrightisregistered,thatitisdisclosedinthe deed of alienation to the transferee or, if it is not so disclosed, that the transferee has not elected to annul the alienation on ground of the said defect (section 15B(3)(a)(ii)).

Practice has showed that the contents of the section 15B(3)-certificates provided by conveyancers do not always depict the correct state of affairs. It will be endeavoured to cover all the different variations which the conveyancers certificate must follow under different circumstances, and the possible loop holes of which cognizance must be taken.

The conveyancer must provide the registrar of deeds with a certificate confirming that as at date of registration of the unit or undivided share therein that, in the case where a body corporate has been established, such body corporate has certified that all moneys due to the body corporate by the transferor in respect of the unit have been paid or provision has been made to the satisfaction of the body corporate for the payment thereof.

Cognizance must be taken that the certificate must be valid as at date of registration and not on the date of signing of the certificate, or the date on which the certificate was given by the body corporate. Should a deed be rejected or there is a delay in the registration, conveyancers are advised to obtain new certificates from the body corporate. It would be sound practice that the certificate from the body corporate contains an expiry date in order for a conveyancer to determine the duration of validity.

Where a body corporate is not deemed to be established, the conveyancer must certify that no moneys are payable. The moneys alluded to here are the moneys owing by the developer. The conveyancer attending to the transfer must ensure that the developer concerned provides proof in this regard. Similarly to the section 15B(3)(a)(i)(aa)-certificate, this certificate must be valid as at date of registration. An expiry date will also be advisable in this instance.

Note that the body corporate is only established after the registration of the first section and not on the transfer of the first section. Should transfers of sections be effected simultaneously with the opening of the sectional title register, the body corporate is only established on registration of the last deed in the batch. Should ten sections be transferred simultaneously with the opening of the sectional title scheme, the certificate for all ten transfers will be in terms of section 15B(3)(a)(i)(bb), and not in respect of the transfer of the first section only.

A certificate relating to the existence of a real right of extension of a scheme, as contemplated in section 25 of the Act, in favour of the developer or body corporate, must be provided.

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Should no real right of extension exist, the conveyancer concerned must certify that no real right of extension has been reserved in favour of the developer or body corporate.

However, where a real right of extension has been reserved, the existence thereof must be disclosed in the deed of alienation. In this regard the conveyancer will certify that there is a right of extension, as contemplated in section 25, reserved in favour of the body corporate/developer and such right was disclosed in the deed of alienation. This certificate is obviously not required where there is no deed of alienation forming the basis for the transfer. For example, in the case of an inheritance, testate or intestate, or a transfer emanating from a divorce agreement no such certificate will be required (see in this regard RCR 59 of 2008).

Before a conveyancer can provide the certificate as to the existence of the right of extension, he/she must ensure as to whether such right has not lapsed, either because it has been exhausted or because the right has lapsed by effluxion of time. A word of caution, however, regarding the reserved period in which the right of extension has to be exercised: Should a real right of extension be reserved for a period of for example two years, and the two years has lapsed, the developer may still proceed with the registration in the deeds registry of such extension, provided proof can be submitted to the registrar of deeds that the buildings were erected prior to the date of lapsing of the right of extension (see RCR 4 of 2008).

Where there is a right of extension reserved, but such right has already lapsed by effluxion of time or because the right has been fully exercised, the conveyancers certificate must provide that there is a right of extension, but such right has lapsed by virtue of effluxion of time or because it has been fully exercised. No application need be made for the cancellation of the right that has lapsed (see RCR 8 of 2009).

Where a right of extension has been reserved but not disclosed to the transferee in the deed of alienation, the conveyancer must disclose in the certificate that the right was not disclosed in the deed of alienation and that the transferee, after conclusion of the deed of alienation, has in writing exercised his or her options, in terms of section 25(15), and that he or she has elected not to annul the alienation on that ground. Once again, before providing the certificate in this regard, the conveyancer must first ascertain whether the right of extension has not lapsed for some or other reason. Should it have lapsed, prior to the date of alienation, then the authenticity of the certificate will be frowned upon.

Rates clearance certificateA clearance certificate from the local authority must be lodged to the effect that all rates and moneys due to such local authority in terms of any law in respect of the land and buildings of the scheme have been paid where the transfer will result in the establishment of a body corporate in terms of section 36 of the Act. This will take place upon registering the first transfer of a unit in a scheme, irrespective of whether the batch of deeds comprises more than one transfer or not.

The section 15B(3)(a)-certificate by the conveyancer should not specifically refer to the fact that the unit is rated or not rated.

The provisions of section 15B(3)(b) should not be confused with, or interpreted as alternative to, the provisions of the Local Government: Municipal Property Rates Act 6 of 2004. In terms of the latter the transfer of a unit must be accompanied by a rates clearance certificate for the unit, issued by the local authority. In instances where the valuation roll of the municipalities is incomplete, an

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explanatory certificate by a conveyancer may not be accepted. The municipality has to issue the necessary certificate (consult RCR 70 of 2008 and RCR 47 of 2009).

In terms of section 15B(3)(b), a clearance certificate must be produced for the land and the buildings. The provision should not be interpreted that two clearance certificates must be lodged on transfer of a unit. However, upon the first transfer of a unit that will result in the establishment of a body corporate, a clearance certificate for the land as well as the unit being transferred is required. Thereafter, only one clearance certificate need be lodged (see RCR 58 of 2009).

A registrar of deeds relies on the authenticity of the certificate provided by a conveyancer. It is for this reason the contents of the certificate must be true and just, as at the time of registration into the name of the new transferee. A registrar of deeds will not be hesitant to reject a deed which contains a certificate containing facts which are not true.

Affidavit regarding section 10If the transferor is a developer of the scheme concerned, an affidavit by the developer must be lodged in which it is declared whether the relevant unit is a unit to which the provisions of section 10 apply or not and, if those provisions apply, that the transfer is effected in terms of a contract which is not contrary to any provision of the said section 10 (section 15B(3)(c)). This affidavit is still required where the executor of a developer passes transfer (RCR 57 of 2008).

Draft certificate re the establishment of a body corporateIf the transfer of the unit in question has the effect of establishing a body corporate in terms of section 36(1) of the Act, i.e. on transfer of the first unit of the scheme, a draft certificate in duplicate, which is drawn in accordance with prescribed form W in Annexure 1 to the Regulations, must be lodged (section 16).

Section 36 of the Act provides that with effect from the date on which any person other than the developer becomes an owner of a unit in a scheme, there shall be deemed to be established a body corporate of that scheme. Prima facia, the provisions of section 36 are clear and unambiguous, however, in practice a fair amount of uncertainty prevails with regard to the date of establishment of the body corporate, and the members thereof.

Where a sectional title register is opened, and sections are simultaneously transferred with the opening of the register, the body corporate is only deemed to be established on registration of the batch of deeds as a whole, i.e. on the registration of the last deed in the batch. The proviso to section 13 of the Deeds Registries Act 47 of 1937 provides that deeds, which are one of batch of interdependent deeds, shall only be deemed to be registered when all the deeds in such batch have been signed by the registrar, i.e. the signing of the last deed in such batch.

It is thus clear that when a sectional title register is opened, and sections simultaneously transferred, the body corporate is only established after registration of all the deeds in the batch. It is for this reason that the conveyancer cannot provide a certificate, in terms of section 15B (3)(a)(i)(aa) of the Act, with the transfer of any of the sections in such batch. The certificate for the transfer of all units in the batch will be to the effect that no body corporate is deemed to be established, and that no monies are payable (see section 15B(3)(a)(i)(bb)).

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It also often occurs in practice that a sectional title scheme is opened on a piece of land, and in view of the situation of the land on which the scheme is to be opened, the scheme is land locked, i.e. surrounded by other land usually also owned by the developer. It is then practice that on approval of the scheme by the local authority, one of the conditions will be that a right of way must be registered over the other land belonging to the developer. In view of the maxim nulli res sua servit the servitude cannot be created simultaneously with the opening of the scheme, as the body corporate is only deemed to be established once the register is opened, irrespective of the simultaneous transfers.

One also cannot provide for a stipulation alteri as there would be nobody to accept the servitude, even where such condition is created in section 11(3)(b) – schedule of conditions. The servitude can only be created once the register has been opened and the body corporate is established. The only way of achieving this is by registering a notarial agreement in terms of section 29 of the Sectional Titles Act, between the developer, as owner of the adjoining land, and the body corporate of the sectional title scheme. It cannot be registered simultaneously with the opening of the scheme and the transfer of the first section, given the provisions of section 13 of the Deeds Registries Act, alluded to above. The only concern is that, pending the registration of the servitude, the body corporate will have no right of way over the adjoining land, and might find itself land locked. However, the developer is also a member of the body corporate, provided not all the sections are transferred, and will very seldom prohibit access to members of the body corporate.

Members of the body corporateSection 36 of the Act provides that the body corporate shall consist of the developer and every person who becomes an owner of a unit in a scheme. The developer ceases to be a member of the body corporate once the ownership in every section is held by any person or persons other than the developer, and the developer does no longer have a real right of extension as provided for in section 25 of the Act (see section 36(2) read with section 34(2) of the Act).

In terms of the definition of developer, in section 1 of the Act, the holder of a right of extension, as provided for in section 25 of the Act, or his successor in title is also deemed to be a developer. This could have the result that a body corporate might never or take a very long time to be established in the event of the initial developer creating two insignificant sections, approximately two square metres in size, and subdivide the remainder of the common property into various real rights of extension, which are in turn cede to “co-developers” of the scheme. Given the same scenario as discussed supra relating to a land locked scheme the creation of the right of way as discussed will not be an option, and the scheme will remain land locked until a body corporate is eventually established some day.

Section 11(3)(b) – Schedule of ConditionsIf often occurs that the section 11(3)(b) schedule of servitudes and conditions is lost or destroyed. Previously the matter had to be referred to court to have a new schedule filed in the deeds office. Regulation 13A now provides a mechanism for the issuing of a replacement schedule in lieu of the lost or destroyed schedule. The regulation reads as follows: “13.(1) A registrar of deeds must, if a schedule referred to in section 11(3)(b) of the Act has been lost or destroyed, on written application by the body corporate or if a body corporate has not been established, on written application by the developer, accompanied by a replacement schedule, arrange for such replacement schedule to be filed in the relevant sectional title file.

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(2) The registrar of deeds must, before filing of the replacement schedule in the relevant sectional title file, at the expense of his or her deeds registry, publish in the prescribed form in two consecutive ordinary issues of the Gazette and in two consecutive issues of a newspaper circulating in the area of jurisdiction of the deeds registry in which the scheme is registered, a notice of the intention for a replacement schedule to be filed in the relevant section title file. (3) A draft of the replacement schedule accompanying the application, shall be open for inspection in the deeds registry free of charge by any interested person, for a period of six weeks after the date of the first publication of the notice in the Gazette, during which period any person interested may object to the filing of such replacement schedule in the relevant sectional title file.

(4) Any person who has lodged with the registrar an objection to the filing of the replacement schedule in the relevant sectional title file may, in default of any arrangement between him or her and the applicant, apply to the court within one month after the last day upon which an objection may be lodged, for an order prohibiting the registrar from filing the replacement schedule in the relevant sectional title file, and the court may make such order on the application as it may deem fit.

(5) A replacement schedule shall be as nearly as possible a reflection of the lost or destroyed schedule and shall take the place of the lost or destroyed schedule and shall embody or refer to every condition, servitude, lease or other encumbrance which according to the records of the registry was embodied or referred to in the lost or destroyed schedule or in any endorsement thereon.

(6) A replacement schedule must be endorsed with a deeds registry date endorsement upon the filing thereof in the relevant sectional title file.

(7) In the event of a schedule referred to in section 11(3)(b) of the Act, in lieu of which a copy has been issued under the provisions of this regulation, being subsequently found and produced to the registrar, he or she shall endorse thereon that it has become void.”

Duplication and change of name of sectional title scheme/body corporate There is no statutory or regulatory obligation on Surveyors-General or registrars of deeds to disallow the duplication of names assigned to sectional title schemes upon approval of the sectional plans or upon opening of the Sectional Title Register.

This oversight by the legislator has given rise to numerous instances where objection was made to the duplication of a name, more specifically in instances where a name is registered with the former CIPRO as a trademark, and the matter having to be resolved in a court of law.

If would appear as if the Surveyor-General in KwaZulu-Natal does not allow the duplication of a scheme name in the same local authority area. This practice still does not solve the problem of names registered as trademarks. Duplications in other local authority areas could still result in lengthy court disputes.

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Research has shown that in numerous instances, certain bodies corporates, in view of changed circumstances, have changed the name allocated to the scheme as same was no longer acceptable to the majority of the members. In view of the fact that no enabling legislation exists to change the name of the scheme, the body corporate merely assigns a new name to the scheme which then appears on signage, correspondence, etc. This causes major confusion to all and sundry and should be frowned upon and not be allowed. Should a court be approached to change the name of a Sectional Title Scheme, the Surveyor- General should be instructed to amend the sectional plans and in turn notify the registrar of deeds concerned to note a caveat against the scheme. However, this is a costly and drawn out procedure (see in the regard RCR 68 of 2008).

Dysfunctional body corporate It often occurs in practice that when a conveyancer is instructed to transfer a sectional title unit, it is discovered that the body corporate has never been established or that the body corporate is dysfunctional. From the outset it must be made abundantly clear that no sectional title scheme can function or exist without a body corporate, be it a functional or dysfunctional one.

Section 36(1) of the Act clearly provides that with effect from the date on which any person other than the developer becomes an owner of a unit in a scheme, there shall be deemed to be established a body corporate for that scheme, consisting of the developer and such other person(w) who are owners of units in the scheme. A body corporate is a creature of statue and derives its powers, etc. from the Act. Section 36(5) clearly provides in this regard that the Companies Act, 1973 (now 2008) shall not apply to bodies corporate.

The legislator, as far back as 2005, realised that developers of sectional title schemes fail to convene a meeting within the prescribed 60 days of establishment of the body corporate, and therefore introduced a sanction in terms of which a developer can be imposed a fine, or a period of imprisonment, should it fail to convene the first annual general meeting. However, this still has not eradicated the problem of bodies corporate not holding their annual general meetings or merely becoming dysfunctional. This is more often than not the case with sectional title schemes comprising of buildings which have been abandoned by the owners of units.

Before a conveyancer can transfer a unit he/she must, in terms of section 15B(3) of the Act, certify that there is a body corporate and that such body corporate has certified that all moneys due to the body corporate by the transferor in respect of the said unit has been paid, or provision to the satisfaction for the payment to the body corporate has been made. Should it transpire that the body corporate was established, but has become dysfunctional, in that there are not longer trustees, etc. to perform on behalf of the body corporate, the following two options are to the avail of the owners of the conveyancer concerned:

The owner can request a special annual general meeting whereby new trustees, etc. are appointed and thereby revive the dysfunctional body corporate. Alternatively, the owner may, in terms of section 46 of the Act, apply to court for the appointment of an administrator. In terms of section 46(3) of the Act, the administrator shall, to the exclusion of the body corporate, have the powers and duties of the body corporate or such further powers as the court may direct.

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The stumbling blocks that one might be confronted with regarding the options alluded to, more especially with regard to abandoned buildings, is that one might not be able to obtain a quorum at the meeting and even if the meeting is postponed, and there is not at least two owners present, the trustees will not be capable of being appointed (a body corporate must consist of at least two trustees, the majority being owners). Similarly, with the appointment of an administrator, it will not be possible to serve the notice on the owners if their whereabouts are unknown.

However, one thing is certain. A sectional title scheme will always have a body corporate if same was established in terms of section 36 of the Act, irrespective whether it is dysfunctional or not and must merely be brought back to life or an administrator appointed, the latter being the more expensive route.

33.3 Exclusive use areas

Section 27(1)(a) of the Act provides that the developer may, upon registration of the sectional plan in a deeds registry, impose conditions in respect of the rights to exclusive use areas which must be ceded to owners of sections for specific purposes. Such areas must also be delineated on the sectional plan. It should, however, be noted that, if the exclusive use areas are depicted on the sectional plan, the reservation must be made and contained as a condition in the schedule.

An exclusive use area must be described by providing a unique code, for example; G,T,P etc. However, a general exclusive use area is also permitted (RCR 72 of 2012). Translations of the codes into Afrikaans or English is not permitted. Where no reservation was made by a developer in terms of section 27(1)(a), and the body corporate has not been established, the developer may in terms of section 27(1A) have the exclusive use areas delineated on the sectional plan and apply to the registrar of deeds for the issue of a certificate of real rights in respect of such exclusive use areas, subsequent to the opening of the sectional title register.

Creation by the developerThere are two manners in which the developer can create the exclusive use areas, i.e. simultaneously with the opening of the register and subsequent thereto.

Creation simultaneously with the opening of the registerThe developer in his/her application must apply for the issue of the certificate or certificates of real right as contemplated in section 12(1)(f). The application must be prepared by a conveyancer and need not be witnessed.

The reservation must be incorporated as a condition in the section 11(3)(b) certificate, identifying all theexclusiveuseareas,andiftheyaretiedtocertainsections,thentheconditionmustalsoreflectthis.

The Registrar must issue the developer with a certificate(s) of real rights drafted in accordance with prescribed form G, simultaneously with the opening of the sectional title register.

The bondholder (if any) must consent to the issue of the certificate of real rights, unless the bond is being cancelled simultaneously.

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Creation subsequent to the opening of the registerOnly the developer may invoke the provisions of section 27(1A). Furthermore, no body corporate must be in existence and no reservation in terms of section 27(1)(a) must have been made. The reservation in terms of section 27 (1A) of the Act is not restricted to a reservation if no reservation was previously made and thus the developer may apply for a further certificate of right in respect of other exclusive use areas (see RCR 40 of 2004).

The developer must apply in writing for the issue of the certificate of real rights and the application must be in accordance with prescribed form B.

Sectional plans must be lodged (only one copy).

The sectional mortgage bond(s) must be lodged together with the consent(s) by the bondholder(s), unless, obviously, the bond is being cancelled simultaneously.

The registrar of deeds must issue to the developer a certificate or certificates of real rights in accordance with prescribed form G to the regulations.

The application must also be accompanied by a certificate from the conveyancer as contemplated by regulation 29 regarding the alienation of units in the scheme.

Creation by the body corporateThe body corporate must:

• be authorised by unanimous resolution to create exclusive use areas and to cede same to the owners entitled to take cession thereof. This resolution must be lodged at the deeds registry.

• lodgeasectionaltitleplanatthedeedsregistryinrespectofsuchareas(onlyonecopy).

• cedesuchareas,bymeansofabilateralnotarialdeed,totheownerswhoareentitledthereto(RCR 11 of 1994 and section 27(3)).

• noapplicationisrequired.

Dealings with exclusive use areasOnce created, exclusive use areas can be alienated by the developer or the body corporate. The developer will normally alienate exclusive use areas together with sections to purchasers.

Transfer is effected by the registration of a unilateral notarial deed of cession in favour of the sectional owner concerned.

Once the developer has transferred the last section in a scheme, he/she/it is obliged to cede the right to any exclusive use area/s still registered in his/her/it’s name, free of charge and without any compensation, to the body corporate (section 27(1)(b)).

Cession of the right to an exclusive use area to a sectional owner by the body corporate, is effected

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by the registration of a notarial deed entered into by the owner concerned and the body corporate as representative of all the sectional owners (section 27(3)). Upon registration, the Registrar must make an endorsement under his/her signature on the schedule of conditions contemplated by section 11 (3)(b) and notify the Surveyor-General accordingly (regulation 28(2)).

A sectional owner may only transfer his/her interest in an exclusive use area to another member of the body corporate by the registration of a bilateral notarial deed of cession (section 27(4)) (RCR’s 50 of 1990, 34 of 1994 and 4 of 1997). This requirement prevents persons other than the body corporate from gaining entrance to a scheme and thus disrupting the harmony of such scheme.

On registration of the notarial deed, the sectional owner concerned acquires a real right which shall for all purposes be deemed to be a right to immovable property and thus capable of being mortgaged and may be the subject of a personal servitude of usus, usufruct and habitatio, and also capable of being leased (see section 27(6)).

Servitudes over exclusive use areasIn terms of RCR 44 of 2003 a servitude of right of way cannot be registered over exclusive use areas.

Creation by the developer or body corporate in the rulesIn terms of section 27A a developer or a body corporate may make rules which confer rights of exclusive use and enjoyment of parts of the common property upon members of the body corporate:

The aforesaid rules shall not create the real rights as contemplated in section 27(6) (see the discussion supra).

Attached to the rules must be:• alayoutplantoscaleonwhichisclearlyindicated-• thelocalityofthedistinctivelynumberedexclusiveuseandenjoymentparts;and• thepurposeforwhichsuchpartsmaybeused;and• ascheduleindicatingtowhichmembereachpartisallocated.

The rights created in the rules are mere personal rights, therefore no title is issued. It cannot be mortgaged and no further registration over and above the registration of the rules is required.

The requirement for the creation or amendment of exclusive use areas, as provided for in section 27A of the Act is a unanimous or special resolution, and is based on RCR 69 of 2009 as amended by RCR 15 of 2011 which reads as follows:

“RCR 69 of 2009: Section 27A Rules

Section 27A provides that a body corporate or developer may make rules which confer rights of exclusive use and enjoyment of parts of the common property upon members of the body corporate:

(a) Are these rules to be incorporated in the management of conduct rules, or are they sui generis rules?

(b) How and with whose consent may these rules be amended?

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Resolution:

(a) These rules may be incorporated in management rules or conduct rules.

(b) The rules, depending whether they were created in terms of the management or conduct rules, may be amended by unanimous resolution or special resolution.”

Whether a unanimous resolution or special resolution is required, to create or amend such exclusive use areas, was also referred to the Sectional Title Regulation Board Meeting, and the Board was of the opinion that the rights can either be created as management rules or as conduct rules, necessitating a unanimous or special resolution, respectively for the creation or amendment thereof.

The Board’s recommendation was based on the following:

• TheExclusiveUseAreasaremerelyPersonalRights

Section 27A of the Act reads as follows:

“27A Rules regarding exclusive use areas –

A developer or a body corporate may make rules which confer rights of exclusive use and enjoyment of parts of the common property upon members of the body corporate: Provided such rules shall-

(a) not create rights contemplated in section 27(6);

(b) include a lay-out plan to scale on which is clearly indicated –

(i) the locality of the distinctively numbered exclusive use and enjoyment parts; and (ii) the purposes for which such parts may be used;

(c) include a schedule indicating to which member each such part is allocated.” (my underlining)

The wording “may make rules” does not dictate only management rules.

• Thefollowingstepsarerequiredforthecreationofthesaidpersonalrights:

The appropriate “rules” must be made by the body corporate.

The rule or rules must confer rights of exclusive use and enjoyment of parts of the common property upon a member or members of the body corporate;

The rights created may not be the rights contemplated in section 27(6);

The new rule or rules must include a layout plan to scale on which is clearly indicated –

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- the locality of the numbered exclusive use and enjoyment parts; and - the purposes for which such parts may be used;

The new rule or rules must include a Schedule indicating to which member each such part is allocated.“Rules” is defined in the Act as follows:

“in relation to a building or buildings which has or have been divided into a section or sections and common property, means management rules and conduct rules referred to in section 35(2) for the control, management, administration, use and enjoyment of sections and common property.”

Management rules, prescribed by regulation, may be substituted, added to, amended or repealed from time to time by the unanimous resolution of the body corporate as prescribed by regulation (see section 35(2)(a)).

On the other hand conduct rules, prescribed by regulation, may be substituted, added to, amended or repealed from time to time by special resolution of the body corporate: Provided that any conduct rule substituted, added to or amended by the body corporate, may not be irreconcilable with any prescribed management rule contemplated in section 35(2)(a) (see section 35(2)(b)).

Section 35(3) reads as follows:

“(3) Any management or conduct rule made by a developer or a body corporate shall be reasonable, and shall apply equally to all owners of units put to substantially the same purpose.”

It is to be noted that this rule is peremptory in nature.

The Regulations to the Act contain the following relevant provisions: Regulation 30:

“(1) The Management rules as contemplated in Section 35(2)(a) of the Act “shall be those rules set out in annexure 9, for which except in the case of rules 1 to 6, inclusive, 10 to 13 inclusive, 15(3) and (4), 16 to 26 inclusive, 28 to 45 inclusive, 46(1), 47 to 56 inclusive, 57(1) and 59 to 70 inclusive, other rules may be substituted by the developer when submitting an application for the opening of a sectional title register.

(4) The management rules set out in Annexure 8 may be added to, amended or repealed by unanimous resolution of the body corporate.

(5) The conduct rules are contemplated in Section 35(2)(b) of the Act shall be those rules set out in Annexure 9.

(7) The body corporate shall notify the Registrar of any addition to, amendment of or repeal of conduct rules as contemplated in Section 35(2)(b) of the Act in the form set out in form V of Annexure 1.”

Van der Merwe at pages 11-34 accepts that the said exclusive rights can be established by way of management (unanimous resolution) or conduct rules (special resolution).

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At pages 11-36 the following is stated:

“The Act merely states that the developer or body corporate may make rules to establish these rights \ of exclusive use without specifying which type of rules can do it. This opens the door for these areas to be established by a special resolution in the form of a conduct rule. This easier method of creation rather than by the amendment of a management rule which requires a unanimous resolution, is widely accepted in practice.”

Kmatt Properties (Pty) Ltd v Sandton Square Portion 8 (Pty) Ltd and Another 2007 (5) SA 475 (W) is to date the only reported case referring to sections 27 and 27A of Act 95 of 1986. The main issue in this case was whether the first respondent was obliged to reserve the exclusive use of the parking bays for the applicant in the manner contemplated in section 27(1) of the Act or whether the first respondent would have complied with its contractual obligations if the exclusive use of the parking bays was reserved to the applicant in the manner contemplated in section 27A of the Act.

When reading this judgment it is important to bear in mind that the Court was not required to interpret the meaning of the word “rules” in Section 27A. The distinction between management and conduct rules was therefore not an issue in this case, and was consequently not considered by the Court at all.

However, in dealing with the “legislative background” the Court, in referring to Section 27A, stated the following:

Page480C-E:

“[19.2] The reservation of exclusive use rights in relation to any part of the common property on the other hand, represents a distinct transaction occurring in terms of either the procedure set out in section 27(1) or in terms of section 27A.

[19.3] Transfer of a right of exclusive use reserved in terms of section 27(1) occurs by means of a notarial unilateral deed of cession, while such rights reserved in terms of section 27A are reserved to the owner (from time to time) of a particular section in terms of the management rules and are therefore automatically transferred along with the relevant section.”

(See also page 480H (paragraph 19.5) – page 481J (paragraph 24) where the Court dealt with the practical effect of Section 27A. Again reference is made to “management rules” without any consideration of the use of the word “rules” in Section 27A and the fact that it is defined as including the management and conduct rules referred to in Section 35(2) for the control, management, administration, use and enjoyment of the sections and common property.

It is interesting to note that clause 13.1.4 of the agreement (in the Kmatt- case) specifically referred to the management and conduct rules as the “rules” to be amended, modified or replaced to accord with the reasonable requirements of any building society or bank granting a bond and stated that “such rules may grant the members sole and exclusive use of areas of the common property”. With respect the Court clearly overlooked this aspect, but as stated above it was not one of the issues before it.

It appears that the arguments advanced by the parties referred to “management rules” as it was not necessary to draw a distinction between management and conduct rules for purposes of addressing the issues.

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This led to the following reasoning by the Court in paragraph 36.12 (page 486A):

“As pointed out above, section 27A of the Act permits allocation of exclusive rights in terms of the management rules.”

This approach, is, with respect, clearly too restrictive and incorrect as section 27A refers to “rules”, which, by definition, includes both the management and the conduct rules.

In the light of the above-stated, and in particular the use and definition of the word “rules” (which was not considered by the Court) it is submitted that the abovementioned statement by the Court does not constitute any authority for the proposition that only management rules can be utilised for purposes of Section 27A.

These rules are not examined and are not endorsed against the existing rules. Only those rules lodged with the section 11 application must be examined (see the amended section 35(5) of the Act).

Form for deed of cessionThe Act does not provide for a prescribed form for the cession of an exclusive use area, thus the notary preparing such deed must take cognisance of the following:

• whether the cession must be drawn unilaterally or bilaterally (see section 27(1)(b) and 27(4), supra);

• that the deed of cession contains a suitable causa and if any consideration was paid for the exclusiveusearea,thatsuchamountisreflectedinthecausa;

• thattheexclusiveuseareaisproperlydescribed.Anexclusiveuseareamustbedescribedassetoutin prescribed form G contained in Annexure 1 to the Regulations of the Act (see RCR 5.12 of 1999).

• thatthenecessarytransferdutyhasbeenpaidontheacquisitionoftheexclusiveuseareabeing ceded. If the cession of the exclusive use area takes place simultaneously with the transfer of the unit to which it attaches, transfer duty is usually paid vide the same transfer duty receipt for which transfer duty was paid for on the unit.

• Theprovisionsofsection45,45bis and 45bis (1A) may be utilised (see CRC 1 of 2009). CancellationofanExclusiveUseAreaSection 27(5) of the Act, provides the mechanism, notwithstanding the provisions of section 6 of the Deeds Registries Act 47 of 1937, to cancel an exclusive use area, delineated on a sectional plan and registered in favour of an owner.

Section 27(5) of the Act reads as follows:

“(5) A right to the exclusive use of a part of the common property delineated on the sectional plan registered in favour of an owner of a section may with the written consent of the mortgagee of the exclusive use area and holder of a register real right be cancelled by the registration by

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the Registrar of a notarial deed of cancellation entered into by the holder of such right and the body corporate, duly authorised by a special resolution of its members, on behalf of all the owners of sections in the scheme.”

Once the exclusive use area is cancelled, such common property which previously encompassed the exclusive use area vests in the body corporate of the scheme, and the body corporate may in terms of section 27(2) of the Act re delineate another exclusive use area on the sectional plan, and cede it to an owner of a section in the scheme.

Section 27(2) of the Act reads as follows:

“(2) A body corporate, duly authorised thereto by a unanimous resolution of it s members, may, subject to the provisions of section 5(1), request an architect or land surveyor to apply to the Surveyor- General for the delineation on a sectional plan in the manner prescribed of a part or parts of the common property in terms of section 5(3)(f) for the exclusive use by the owner or owners of one or more sections: Provided that no such delineation shall be made on the sectional plan in terms of this subsection if such delineation will encroach upon a prior delineation on the sectional plan of a part of the common property for the exclusive use by one or more of the owners.”

RequirementsforthecancellationofanExclusiveUseArea

• Thecancellationwillbeeffectedbyvirtueofabilateralnotarialdeedenteredintobetweenthe holder of the exclusive use area and the body corporate. The required special resolution by the members will be retained by the Notary in his/her protocol.

• Thebond(s)registeredovertheexclusiveuseareasmustbelodgedfordisposal,i.e.forcancellation or release from the operation of the bond (see in this regard RCR 42 of 2003).

• Wherearegisteredrealrightisregisteredovertheexclusiveusearea,therealrightwillalsohave to be cancelled, albeit that RCR 76 of 2011 merely provides that the consent of the holder of the registered real right must be lodged. It is submitted that the provisions of section 68(1) of the Deeds Registries Act 47 of 1937 must be invoked for the cancellation thereof.

• Thecancellationoftheexclusiveuseareaisdeemedtobeatransaction,intermsofthedefinition of “transaction” in the Transfer duty Act 40 of 1949, and thus the necessary transfer duty receipt must be lodged.

• Noratesclearancecertificateneedbelodged.

• Thetitleoftheexclusiveuseareamustalsobelodged.

Cancellation of an exclusive use area by developerSection 27(5) of the Act only provides for the cancellation of an exclusive use area depicted on a sectional plan where a body corporate is in existence. However, in terms of RCR 80 of 2011 it was held that where no body corporate is in existence the developer may cancel an exclusive use area by virtue of a unilateral notarial deed of cancellation. The remaining provisions of section 27(5) still apply mutatis mutandis (see discussion above).

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Double registration of exclusive use areasWhere an exclusive use area was erroneously ceded to two separate owners of sections in the scheme, i.e. not in undivided share, but as the sole holder of the right, the Registrars at their annual conference held that both the titles of the erroneously ceded exclusive use areas must be cancelled, in terms of the aforesaid section 25, and the exclusive use area must be receded by the body corporate to the rightful holder of such exclusive use area (see RCR 36 of 2002 as confirmed by RCR 2 0f 2012).

33.4 Mortgage bonds and sectional mortgage bonds

For the purposes of the Act, mortgage bonds may be divided into two main categories, namely;

• Bonds registeredagainst the landandregisteredagainst the titledeedof the land, in termsof section 50 of the Deeds Registries Act; which, on registration of the sectional plan, is regarded as being converted into a bond registered against all the sections and common property as shown on the sectional plan; and

• Sectionalmortgagebondsregisteredintermsoftheprovisionsofsection15B(1)(c)oftheAct.

On the basis of these two categories, it will be attempted to explain the implications of mortgage bonds on a sectional title register.

Bonds signed in terms of section 50 of the Deeds Registries ActAccording to section 11(3)(d) the bond over the land, together with the consent of the mortgagee, must be submitted to a Registrar when a developer applies for the opening of a sectional title register.Such a bond is endorsed against the certificates of registered sectional title and certificates of real rights, which are issued in accordance with section 12(1)(d), (e) and (f), and is deemed, in terms of section 13(3), to have been converted into a mortgage bond registered against the sections and common property which are shown on the sectional plan, or which affect it.

Sections 12(1)(g) and 13(3) do not specifically provide that such a bond is also deemed to be converted into a bond registered against the certificate of real rights issued in terms of section 12(1)(e) and (f), or affect it. Logically considered, this must actually be the case.

Sectional mortgage bonds registered in terms of the provisions of section 15B(1)(c) of the ActSection 15B(1)(c) of the Act provides that the Registrar shall register any sectional mortgage bond hypothecating a unit or an undivided share in a unit or land held under a sectional title deed, or a registered lease or sub-lease of a unit or an undivided share in a unit or such land, or any registered real right in or over any such unit or undivided share in a unit or land, and any cession, cancellation or modification of such bond, by means of an endorsement made by him/her on the sectional title deed or on the registered lease or sub-lease or bond or other deed. This does, however, not mean that a sectional mortgage bond cannot be registered over the real rights of exclusive use areas and rights of extension as contemplated by section 25 and 27 (see the definition of sectional mortgage bond in section 1).

Note that section 15B(1)(c) only requires a Registrar to register a sectional mortgage bond by making an endorsement on the registered sectional title of a unit which is bonded, the title of a registered real

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right or a lease or sub-lease which hypothecates such registered lease. There is no provision which requires that he/she should affix his/her official seal thereto.

What may serve as security under a sectional mortgage bondIn terms of the definition of sectional mortgage bond the following may serve as security:

• aunitoranundividedshareinaunit.

• landheldunderasectionaltitledeed(thiswouldnormallybelandacquiredbytheBodyCorporate in terms of section 26).

• aregisteredleaseorsub-leaseofanyunitorundividedshareinaunitorland.Aregisteredshort term lease cannot serve as security under a sectional mortgage bond (see RCR 35 of 2003).

• arealrightregisteredoversuchunitorundividedshareinaunit.Oneimmediatelythinksofthe common law personal servitudes, namely usufruct, usus and habitatio.

• arealrightregisteredovercommonproperty.

• arealrighttoanexclusiveusearea,ascontemplatedinsection27(seeRCR37of2003).

• arealrightofextensionascontemplatedinsection25.

PrescribedformAlthough section 15B(1)(c) makes no mention of the fact that a sectional mortgage bond must follow a prescribed form, section 55 provides that the Minister may, after consultation with the sectional titles regulations board, make regulations with regard to the form of any deed or document to be registered or filed in a deeds registry. In terms of this section it was found appropriate to prescribe a specific form for a sectional mortgage bond. Regulation 34 of the Act thus provides that a sectional mortgage bond which hypothecates a unit, held in accordance with a sectional title deed or an exclusive use area or the right to extend a scheme which is held in terms of a certificate of real right, is basically set out in Form Z in Annexure 1 of the regulations.

The above mortgage bond must be drawn up by a conveyancer and be signed by the mortgagor or his duly authorised agent, in the presence of a conveyancer.

The above form must be suitably adapted when land is held under a sectional title deed or registered notarial lease or sub-lease or other registered real right, is hypothecated.

From the previously mentioned prescribed form the conditions of the mortgage bond do not form an integral part of the bond as such, but are set out in an annexure which is attached to the bond. As this is a special type of mortgage bond, the mortgagee may, in order to protect his/her security, choose to include any or all of the following special conditions in the mortgage agreement: that the mortgagor will insure the unit for an amount equivalent to the value thereof; that the mortgagee may insist on insurance of the building or for the replacement value thereof; that the mortgagee is irrevocably appointed in rem suam to act on behalf of the mortgagor in matters affecting the unit

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and the mortgagor’s relationship with the body corporate and their sectional title owners; that the mortgagee is authorised to attend general meetings and vote on behalf of the mortgagor; that the body corporate will make available to the mortgagee (instead of to the owner) all notices and other information which is relevant to his/her security. These are just a few of the conditions which can, amongst others, be registered, and the mortgagee is free to register any variation of such conditions.

The annexure to the mortgage bond, which contains such conditions, must be signed at the end by the mortgagor and by the conveyancer before whom it was signed, and if the document should consist of more than one page, then each additional page must be identified by the initials of the parties mentioned.

The ranking of the mortgage bond must be disclosed in the mortgage bond form, namely whether suchabondisthefirst,secondorthirdbond,andsuchareferencemustbereflectedinthebond.

The provisions of regulation 41(1) of the Deeds Registries Act must be complied with. Thus, in the security clause, the conditions restricting ownership, inclusive of conditions in favour of HOA’s must be referred to (see RCR 13 of 2002 as confirmed by RCR 4 of 2007). A restriction on alienation requires the consent from the imposer thereof (see RCR 35 of 2008 as amended by RCR 2 of 2006 and confirmed by RCR 12 of 2008 and RCR 4 of 2011).

More often than not mortgage bonds are registered over a section in a sectional title scheme without also mortgaging the exclusive use areas, which exclusive use areas are so closely linked to the section that the section cannot function independently from the said exclusive use areas, for example balconies, patio’s, gardens, stoeps, to mention but a few.

Should these exclusive use areas not also serve as security under a mortgage bond, an untenable situation arises when forfeiture occurs and the section is attached and sold in execution. It is obvious that the exclusive use areas must also be sold in execution, but this cannot happen if the exclusive use areas also did not serve as security under the bond.

The Registrars at the Annual Conference in 1994 resolved that it is not the duty of registrar of deeds to enforce the mortgaging of the exclusive use areas. It is submitted that should an examiner determine that there are exclusive use areas, such as those referred to above, he/she must draw the attention thereof to the conveyancer concerned, and disallow the registration of the bond over only the section. In terms of RCR 81 of 2011 it was held that the mortgaging of such exclusive use areas cannot be enforced by registrars of deeds.

Should the registration of the bond already be registered, the only way to rectify the omission is to cancel the bond and register a substituted bond. This practice, at its best, is extremely risky given the provisions of the Insolvency Act 24 of 1936.

It is submitted that a collateral bond over the exclusive use areas would be a more viable option, and partially eliminate the risks as alluded to in the Insolvency Act, referred to supra.

It is contended that exclusive use areas, so closely linked with a section that they cannot survive independently, should be notarially tied to the section, however, the Act does not cater for this.

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Where more than one unit is hypothecated by a sectional mortgage bond, then, in accordance with regulation 27(1) of the Deeds Registries Act, such units and a reference to their undivided shares in the common property, and real rights must be set out in separate paragraphs in such a sectional mortgage bond.

Documents which must be kept in the conveyancer’s fileIn terms of regulation 40(1)(b) of the Act, every conveyancer who drafts and prepares sectional mortgage bonds as referred to in section 15B (1) (c) of the Act, must keep in his/her file the various documents identified in Annexure 6 to the regulations, namely:

• apowerofattorneywhichlendsauthoritytotheconveyancertoactinthetransaction,unlesssuch authorisation is included in the mortgage bond; and

• allotherdocuments includingpowersofattorneywhichtheconveyancerdeemsessentialwith regard to the status, authority or capacity of the mortgagor or his/her agent or the mortgagee or the conveyancer, for example the section 15(2)(a) Act 88 of 1984 consent by a spouse.

33.5 Subdivision and consolidation of sections

IntroductionThe Act provides the owners of sections in a sectional title scheme with the necessary machinery to either subdivide a section into two or more sections or to consolidate two or more sections. A sectional owner is thus not permanently bound by the boundaries of entities created by the registration of a sectional plan in a deeds registry.

The Act, however, does not provide for the subdivision or consolidation of an exclusive use area. The only method to achieve this is to apply for the cancellation of such exclusive use area and to have it re-delineated on the sectional plans. The cancellation should be effected by virtue of a notarial deed and the reallocation of the re-delineated exclusive use areas must be effected by the body corporate by virtue of a notarial deed of cession (see in this regard RCR 5 of 1991). Conference, however, resolved that the Act should provide for the subdivision of an exclusive use area, but until such time the status quo is retained (see RCR 4 of 2003).

The procedure to realise the subdivision of a section or the consolidation of two or more sections is reconnoitred below.

Subdivision of a sectionWhere an owner, be it for practical or commercial purposes, wants to alienate a portion of his/her section, such an owner needs firstly to obtain the consent of the trustees of the body corporate (section 21). Should no such consent be procured, the trustees should have a valid reason for such withholding. In the alleged absence of such justification, a sectional owner may approach the court for the necessary authorisation. From the wording of section 21 it would appear that the body corporate must already be in existence before a subdivision of a section can occur, but this does not prohibit the developer from invoking his/her common law right to subdivide a section(s) (see RCR 64 of 2012). However, in the latter instance the Developer must lodge with the Registar and affidavit regarding prospective purchases and their consents.

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Approval of plan of subdivision by the Surveyor-GeneralThe land surveyor or architect, concerned, may on behalf of the owner submit the draft sectional plan of subdivision to the Surveyor-General for approval (section 21(1)).

The application to the Surveyor-General must be drawn in accordance with prescribed Form AB in Annexure 1 of the regulations, and in support of this application the following documents have to be submitted:

• thedocumentsreferredtoinsection7(2),suitablyadjusted;

• thedraftsectionalplanofsubdivisioncontainingaschedulespecifyingtheapportionmentofthe participation quota of the section between the new sections created;

• anyfurtherdocumentationasrequiredbytheofficeoftheSurveyor-General(seeclause4.1to4.9 of prescribed Form AB).

Application for the registration of the subdivision of a sectionAfter the approval by the Surveyor-General of a sectional plan of subdivision of a section, an owner or his duly authorised agent may apply to the registrar of the deeds registry in which the section is registered for the registration of the sectional plan of subdivision.

The application to the registrar of deeds is to be drafted in accordance with prescribed Form O in Annexure 1 to the regulations. From the prescribed form it is evident that not only must application be made for the registration of the sectional plan of subdivision, but the owner concerned must also apply for the issue of the certificates of registered sectional title, in terms of section 22(5).

The application for the registration of the subdivision of a section must be accompanied by the following:

• twocopiesofthesectionalplanofsubdivision;

• theclient’scopyofthesectionaltitledeedinrespectofthesectiontobesubdivided;

• anysectionalmortgagebondtowhichthesectionmaybesubject,togetherwiththeconsentofthe mortgagee to the:

à cancellation of the bond; à the release of the section from the bond; or àto the subdivision and substitution of the new sections in lieu of the section so mortgaged;

• certificatesofregisteredsectionaltitledrawninaccordancewithprescribedFormPinAnnexure 1 to the regulations in respect of each of the new sections and their undivided shares in the common property created by the subdivision;

• wherethesubdivisionemanatesfromapartitionagreement,acopyofsuchpartitionagreement;and

• theconsentofthetrusteesofthebodycorporateneednotbelodged(seeRCR18of1997).

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• noratesclearancecertificateneedbelodged.

• TheaffidavitbythedeveloperasperRCR64of2012,ifthedeveloperisnotsubdividing.

EffectofsubdivisionUpon registration of a sectional plan of subdivision, such sectional plan is deemed to be incorporated as an integral part of the existing registered sectional plan. It is furthermore deemed to be part of the sectional title with the implication that the owner’s unit will be subject to all restrictions indicated on the schedule as contemplated by section 11(3)(b) and attached to the sectional plan.

Consolidation of two or more sectionsAn owner of two or more sections in a sectional title scheme may, for whatever reason, after obtaining the consent of the trustees of the body corporate, apply for the consolidation of such sections. There is no pre-requisite that the sections to be consolidated must adjoin or be contiguous to one another. The sections to be consolidated must, however, be owned by the same person or, if owned by two or more persons, then by persons in the same shareholding.

Approval of consolidation by Surveyor-GeneralThe land surveyor or architect concerned may on behalf of the owner(s) submit the draft sectional plan of consolidation to the Surveyor-General for approval.

The application to the Surveyor-General must be drafted in the form of Form AB in Annexure 1 and must be accompanied by the following documentation:

• thedocumentsreferredtoinsections7(2),suitablyadjusted;

• thedraftsectionalplanofconsolidationcontainingaschedulespecifyingtheparticipationquota of the new section created, being the aggregate of the quotas of the sections that are to be consolidated; and

• any further documentation as required by the office of the Surveyor-General (see clause 4 in prescribed form AB in Annexure 1 to the regulations).

Application to registrar of deeds for the registration of the sectional plan of consolidationThe application by the owner or his duly authorised agent to the registrar of deeds for registration of a sectional plan of consolidation must be drafted in accordance with prescribed Form O to Annexure 1 of the regulations.

From the wording of the aforesaid application cognisance must be taken that application must be made for:

• theregistrationofthesectionalplanofconsolidation;and

• theissuingofacertificateofregisteredsectionaltitleoftheconsolidatedunitinsubstitutionofthe sectional title deeds of the sections consolidated.

The following documents must accompany the aforesaid application:

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• thesectionalplanofconsolidation(induplicate);

• thesectionaltitledeedsofthesectionstobeconsolidated;

• theaffidavitbythedeveloperasrequiredbyRCR64of2012,wherethedeveloperisconsolidating;

• themortgagebond(s)registeredoverthesectionstobeconsolidatedtogetherwiththeconsentby the bondholder for disposal of the bond(s).

Although section 23(2)(c) read with section 23(6) creates the impression that the bonds, if permissible, are to be substituted, the provisions of section 56 of the Deeds Registries Act 47 of 1937 are also mutatis mutandis applicable.

The bonds can therefore also be lodged for release or cancellation:

• acertificateofregisteredsectionaltitle,draftedinaccordancewithprescribedFormQinAnnexure 1totheregulations,inrespectofthenewsectionreflectedonthesectionalplanofconsolidation, and its undivided share in the common property, made out in favour of the owner of the sections to be consolidated; and

• theconsentbythetrusteesofthebodycorporateneednotbelodged(seeCRC18of1997). Upon registration, the sectional plan of consolidation shall be deemed to be incorporated into the original sectional plan and deemed to be part of the sectional title deed, with the implication that the owner’s title of the unit would be subject to all the restrictions contained in the schedule filed with the original sectional plan.

33.6 Extension of the limits of a section

IntroductionSection 24 of the Act provides the machinery in terms of which a sectional owner can effect an extension of the limits of a section in a sectional title scheme. The extension can either be effected by the addition of another section on top of the existing one or by the addition of a balcony. Since the vertical or horizontal extension of a section will normally affect the participation quotas of other sectional owners and possibly alter the outside appearance of the common property, a special resolution authorising the body corporate to effect such an extension must be obtained (see section 24(3)).

Once the sectional owner has instructed an architect or land surveyor to prepare a draft sectional plan for the proposed extension, the following steps must be taken.

Approval of the draft sectional planThe land surveyor or architect concerned may, on behalf of the owner, submit the draft sectional plan of extension of a section to the Surveyor-General for approval (section 24(3)).

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The application by the surveyor or architect to the Surveyor-General for approval of the draft sectional plan of extension must be drafted in accordance with prescribed form AB in Annexure 1 to the regulations and be accompanied by the following documents:

• thedocumentsreferredtoinsection7(2),suitablyadjusted;and

• inthecaseofthefloorareaofthesectioninquestionbeingincreasedbytheextension,arevised schedule reflecting the participation quotas of all the sections as modified, after taking the increasedfloorareaofthesectioninquestionintoaccount(section24(4)(b)).

The Surveyor-General may not approve a draft sectional plan, unless it has been prepared in accordance with the provisions of the Act (section 7(5)).

Application to the registrar of deedsAfter the draft sectional plan of extension of the section has been approved by the Surveyor-General, the conveyancer’s functions commence, in that application must now be made to the registrar of deeds for the registration of the sectional plan of extension.

The application to the registrar of deeds for the registration of a sectional plan of extension must be drawn in accordance with prescribed form O in Annexure 1 to the regulations and must contain a preparation clause, as provided for in regulation 16B of the Sectional Titles Act.

Where only one plan is provided for the extension of numerous sections belonging to different owners, one application may be lodged with reference to each owner, alternatively different applications may be lodged and each be charged a fee, provided only one SS number is afforded and all the extensions must be registered simultaneously (see RCR 61 of 2009).

The aforesaid application must be accompanied by the following documents:

• twocopiesofthesectionalplanofextension,whichhavebeenapprovedbytheSurveyor-General. A block plan must also be lodged with the extension of a section. However, where the block plan hasnotchanged,andthereisanoteonthefloorplantothateffectbythesurveyor/architect, it need not be lodged (RCR 62 of 2009). After registration of the sectional plan, the Registrar must furnish the local authority concerned with a copy of the registered sectional plan of extension (regulation 23(2));

• the sectional titledeedof the section tobeextended (section24(6)(c)). Nonewcertificateof registered sectional title for the extended section need be applied for or issued as the existing title is endorsed with regard to the extension (see para 13.2 of CRC 6 of 1988);

• theapprovalofthebodycorporatei.e.thespecialresolutionbythemembersofthebodycorporate need not be lodged (CRC 18 of 1997);

• a transfer duty receipt. In terms ofRCR 40 of 1989 andRCR 76 of 2010, itwas held that an extension of a section is tantamount to an “acquisition” and a “transaction” as defined in section 1 of the Transfer Duty Act 40 of 1949 and therefore subject to the payment of transfer duty, even wherethefloorareaofsuchsectionisnotincreased;and

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• anysectionalmortgagebondtowhichthesectionmaybesubject,togetherwithacertificatebya land surveyor or architect stating that there is not a deviation of more that 10% in the participation quota of the extended section. Where there is a deviation of more than 10% a conveyancer must provide a certificate that the bondholder of each section has consented to the registration of the sectional plan of extension of the section.

• theaffidavitbythedeveloperasrequiredbyRCR64of2012wherethedeveloperistheapplicant.

Conference held in terms of RCR 64 of 2011 that section 24(6)(d), as amended, must be applied as follows:

à If there are no bonds registered over any of the units in the scheme, compliance of this section is not necessary?

à If only the extended section is mortgaged it will only be necessary for the lodgement of that bond?

à If the extended section is not mortgaged, but any of the other sections are mortgaged, the certificate/s must be lodge with the application.

• Noratesclearancecertificateneedbelodged(RCR75of2010).

When the requirements of the Act and any other relevant law have been complied with, the Registrar registers thesectionalplanofextensionandallotsadistinctivenumberthereto.Furthermore,wherethefloorareaofthe section is increased by the extension, the Registrar will endorse the certificate of registered sectional title and any other titles registered against such deed (for example bonds, leases, usufruct, etc.) to this effect.

A sectional plan of extension of a section shall upon registration thereof be deemed to be incorporated in the sectional plan and further be deemed to be part of the sectional title deed (section 24(8)).

33.7 Extension of the common property

IntroductionSection 26 of the Act empowers a body corporate of a sectional title scheme, if authorised thereto in writing by all of its members, to purchase land to extend the common property.

The land purchased for purposes of extending a sectional title scheme need not be contiguous to the land comprised in the scheme, but could, for example, be a vacant erf across the street. However, where the body corporate desires, to extend the scheme by way of the erection of an additional building on the land and proposes to divide such building into sections, the provisions of section 4(2) of the Act must be adhered to. The proviso to section 4(2) clearly requires that the building or buildings in a scheme to be divided into sections must be situated only on one piece of land or on two or more contiguous pieces of land which have been notarially tied.

Where the land purchased is not contiguous, extension of the scheme in terms of section 25 cannot be registered. However, where the land purchased has a common boundary with the land

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comprising the scheme, a notarial tie agreement enforceable by the local authority in whose jurisdiction the scheme is situated, will have to be registered prior to the anticipated extension (see RCR 70 of 2009).

In RCR 40 of 2003 it was held that a developer who intends adding land to the common property cannot do so in a manner other than by the provisions of section 26, for example by merely notarially tying such land to the common property. The reason for this ruling is that section 26 is peremptory and the developer’s powers are clearly set out in section 38(c) of the Act. However, in terms of RCR 8 of 2012, a section may be notarially tied to land outside of the scheme.

The following steps must be taken for a scheme to be extended through the addition of land:

Authorisation of membersBefore a body corporate can proceed to purchase land for purposes of extending the scheme, the authorisation of all the members of the body corporate is needed in order to proceed with such acquisition. The holder of a real right of extension, being a member of the body corporate, will also have to provide consent. It is noteworthy that the extension of a scheme by the addition of land appears to be only to the avail of the body corporate, but it is submitted that this will not debar the developer from invoking his common law right to also extend the common property, prior to the establishment of a body corporate.

PurchaseoflandOnce the written consent by all the members of the body corporate has been obtained, the body corporate can proceed to purchase and take transfer of the land to be incorporated into the scheme. The transfer of the land into the name of the body corporate must be effected by virtue of a conventional deed of transfer drawn in accordance with prescribed form E to the regulations of the Deeds Registries Act 47 of 1937, and be accompanied by the consent (authorisation) of all the members of the body corporate.

The land to be incorporated as common property must be free of any mortgage bond(s). Section 26(6) of the Act specifically provides in this regard that the registrar shall not register such plan of extension if the land to be incorporated is subject to a mortgage bond.

The land purchased by the body corporate shall be deemed to be owned by the owners of the sections in thebuildingconcerned, in thesameproportionas theirparticipationquota,asreflectedontherelevant sectional plan (section 26(2)).

Submission of draft sectional plan to the Surveyor-GeneralThe draft sectional plan must be submitted to the Surveyor-General for approval. The draft sectional plan to be approved by the Surveyor-General must comply with the requirements as set out in regulation 5 (see section 26(4) read with sections 7(2), (3) and (4) of the Act).

The application by the land surveyor or architect to the Surveyor-General for the approval of the draft sectional plan must be drafted in accordance with prescribed form AB to Annexure 1 of the regulations and be accompanied by the following documents:

• thedocumentsreferredtoinsection7(2),suitablyadjusted;

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• acopyoftheschedulereferredtoinsection11(3)(b)settingouttheservitudesandconditionsof title burdening or benefiting the land. The body corporate will, however, not have the right to reserve any registerable condition (see the maxim nulla res sua servit); and

• any further documents as required by the Surveyor-General (see clause 4 of the aforesaid prescribed form AB).

Application to the registrar of deedsThe application to the registrar of deeds for the registration of the sectional plan of extension of the common property must be drafted in accordance with prescribed form O in Annexure 1 to the regulations (see regulation 27(1)(a)) and be accompanied by the following:

• thetitledeedofthelandtobeincorporatedregisteredinthenameofthebodycorporateandfree from any mortgage bonds;

• twocopiesofthesectionalplan;

• theconsentofalltheowners,orifalreadyfiledinthedeedsregistryreferencetowhereitisfiled;and

• thenewscheduleofconditionsasreferredtoinsection11(3)(b)oftheAct(seeRCR10.2of1999);

• thetitlesofdeedsofservitudeandotherrealrights,ifavailable;

• theaffidavitfromthedevelperasperRCR64of2012.

Once the plan of extension is registered, such plan shall be deemed to be incorporated in the original registered sectional plan and the additional land shall be deemed to be incorporated as common property in such registered sectional plan (see section 26(7)).

33.8 Phase Developments

IntroductionThe development of a scheme in phases usually occurs when a developer plans an extensive project but, for financial or other reasons, is unable to complete the whole scheme at once. Plans are thus made to develop the scheme bit by bit, or in stages or phases. For example, a developer wishing to erect 100 townhouses on a site, will, for example, plan to divide the development into four phases and to erect 25 townhouses in each phase.

Section 25 provides unambiguously for:

• Theadditionofsection(s)andcommonproperty,i.e.unitstothescheme;

• Theadditionofsectionsandcommonproperty,i.e.units,andexclusiveuseareas;or

• Theadditionofexclusiveuseareas,providedthattherightsofexclusiveusearecededwithin12 months after their creation, either to the body corporate of the scheme or to one or more registered owners of a section or sections in the scheme (section 25(5)).

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Whoisauthorisedtoeffecttheextensionofaschemebytheadditionofsections?

The developer, if such right is reserved simultaneously with the registration of the sectional planA developer may, in the application for the registration of a sectional plan, impose a condition in terms of section 11(2) of the Act, whereby he/she reserves the right to erect complete or include from time to time, but within a specified period set out in such condition, for his/her personal account –

• abuildingorbuildings;or• ahorizontalextensionofanexistingbuilding;or• averticalextensionofanexistingbuilding;

on a specified part of the common property of a scheme, and to divide such building or buildings into a section or sections and common property and to confer the right of exclusive use over parts of such common property upon the owner or owners of one or more sections or to delineate exclusive use areas on or in specified parts of the land and buildings in terms of section 5(3)(f) and to confer the right of exclusive use over such areas upon the owner or owners of one or more sections.

If the developer reserves such a right, the following documents referred to in section 25(2) of the Act must accompany the application or registration of the sectional plan in terms of section 11(3)):

• aplantoscaleofthebuildingorbuildingstobeerectedindicatingthefollowing:

à the part of the common property affected by the reservation; àthe siting, height and coverage of all buildings; àthe entrances and exists to the land; àthe building restriction areas, if any; àthe parking areas; and àthe typical elevation treatment of all buildings;

• aplantoscaleshowingthemannerinwhichthebuildingorbuildingstobeerectedaretobe divided into a section or sections and any exclusive use areas;

• aschedule indicating theestimatedparticipationquotasofall thesections in theschemeafter such section or sections have been added to the scheme;

• particularsofanysubstantialdifferencebetweenthematerialstobeusedintheconstructionof the building or buildings to be erected and those used in the construction of the existing building or buildings;

• thecertificateorcertificatesofrealrightwhichis/aretobeissuedintermsofsection12(1)(e);

• suchotherdocumentsandparticularsasmaybeprescribed;

• the plans in terms of section 25(2)(a) and (b)must be accompanied by a certificate from an architect or surveyor to the effect that it complies with the requirements of the said sections (see RCR 61 of 2008 as amended by RCR 11 of 2011).

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Simultaneously with the registration of the sectional plan and the opening of a sectional title register, a registrar of deeds will issue to the developer a certificate or certificates of real right, in terms of section 12(1)(e), for the extension of the scheme by the addition of sections. The aforesaid certificate(s) of real right is/are issued as prescribed by Form F in Annexure 1 of the regulations. It is, however, vitally important that the certificate specifies which rights of extension are being reserved, as well as the period within which the rights will be exercised. The period in which the rights are to be exercised must be a specified period and cannot be quoted as an indeterminable period (see in this regard RCR 4 of 2005 as well as regulation 14 of the Act). Note that the building comprised in the extension must be erected and completed within such period. The sectional plan of extension, however, may be registered after such period (RCR 1 of 1991). In the latter instance a certificate from the local authority that the buildings were erected prior to the date of lapsing of the right of extension must be lodged (RCR 4 of 2008).

When a reservation in terms of section 25(1) lapses due to the expiry of the time limit, an application may be submitted in terms of section 15B(1)(d) of the Act, to note the lapse thereof. Where a right to extend a scheme has lapsed, the provisions of section 15B(1)(d) of the Act, is not peremptory, however it is still the Registrars duty to verify the certificate by the conveyancer with regard to the right of extension (RCR 8 of 2009).

Where the right of extension is cancelled due to effluxion of time or because it has been exhausted, the bond registered over such right need not be lodged for cancellation (RCR 61 of 2006).

In terms of section 25(4)(a) and (b), such a right in respect of which a certificate of real right has been issued, is for all purposes deemed to be a right to immovable property which may be mortgaged and which may be transferred by the registration of a notarial deed of cession.

It is unnecessary for the holder of the right of extension to be an owner of a unit in the scheme in order to exercise such right. Thus, the developer of a scheme may, in terms of section 34(2), transfer the whole of the scheme to another person, while retaining the right of extension for himself/herself. Similarly, a developer may transfer all the sections in a scheme to individuals and have no interest in the common property, except for his/her right of extension of the scheme by the addition of sections and or exclusive use areas (see section 25(5) in this regard).

The developer’s successor in titleThe developer who reserves a right in terms of section 25(1) or 25(6A), may cede such a right to another person by the registration of a notarial deed of cession. The cessionary of such a notarial deed of cession will have the same rights and duties as the developer had under the original reservation in terms of section 25(1) or 25(6A).

Such a cessionary must exercise the rights within the period stipulated in the original reservation and thus the buildings will have to be erected and completed within the stipulated period (RCR 1 of 1991). If he/she fails to do so, the provisions of section 15(B)(1)(d) of the Act apply for the endorsement of such lapse through time.

The body corporateIf the developer does not reserve the right to extend a Sectional Title Scheme by the addition of further sections, or if a developer’s reservation has lapsed (either because the period stipulated by the

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developer has expired or the right has been exercised) the right to extend the scheme by the addition of sections and/or exclusive use areas vests in the body corporate.

If no other person holds the right to extend the scheme by the addition of sections and/or exclusive use areas the body corporate may embark upon such an extension (section 25(6)). In many schemes this type of extension is physically possible and would be permitted in terms of the town-planning scheme. However, a body corporate will consider various other factors in considering the desirability of further developing scheme in this manner.

Where a vertical extension of existing buildings is envisaged this will cause considerable inconvenience, but should not reduce the common property available for use by owners. Where the horizontal extensions of buildings or additional buildings are contemplated, such proposed extensions will result in less common property being available for more owners. Where additional exclusive use areas are required this will further reduce the common property available for general usage.

A body corporate that has the right to extend the scheme by the addition of sections and/or exclusive use areas can only exercise or transfer that right with the written consent of all owners and bondholders of units (section 25(6)). The type of phased development normally undertaken by a developer is a risk venture requiring considerable amounts of capital. The prescribed management rules prohibits the distribution of non-capital profits or gains to owners other than on termination of the scheme (Property Management Rule 45(2)). Naturally, this rule can be amended by a unanimous resolution of the body corporate where all owners are keen to proceed with such a venture. However, it is more likely that a body corporate will extend a scheme by the addition of a limited number of sections, or exclusive use areas, such as garages, to be transferred or ceded to existing owners, or would acquire and sell the right to extend the scheme.

A developer who reserves the right to further develop the scheme by the addition of sections is issued with a certificate(s) of real right (section 12(1)(e)). This sets out the duration of the right and the type of extension.

A body corporate with the right to extend the scheme by the addition of sections is entitled, on submission of an application to the registrar of deeds, accompanied by the documents referred to in section 25(2), to obtain a similar certificate of real right.

A right to extend the scheme by the addition of sections and/or exclusive use areas is a right to immovable property and can be mortgaged (section 25(4)(a)). The right can be transferred by a notarial deed of cession. Where the cession only affects a portion of the land in the scheme this portion must be identified to the satisfaction of the Surveyor-General either on the block plan or a separate section 25(4) plan (see RCR 70 of 2011).

A right to extend a scheme can be exercised at any time during the period stipulated in the certificate of real right. A body corporate can only exercise or transfer this right with the written consent of all owners and bondholders of units in the scheme, but an owner is not entitled to withhold his/her consent unless he/she has good cause in law to do so (section 25(6)).

A person who takes cession of this right does not acquire the status of a developer. The right is valid and capable of exercise by the holder whether or not he/she owns any units in the scheme (section 25(5)).

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When a person holds a right to extend a scheme by the addition of sections in terms of a certificate of real right, the existence of that right must be disclosed in any agreement for the sale of a unit in the scheme (section 25(14)). If this is not disclosed the purchaser can declare the agreement void (section 25(15)).

A person who has the right to extend a scheme by the addition of sections or exclusive use areas is not obliged to do so.

If the right is exercised then the extensions must be strictly in accordance with the documents as referred to in section 25(2). Any owner who is prejudiced by a lack of strict compliance can apply to the High Court for relief. The Court may grant and order compelling strict compliance or granting such other relief, including damages, as it may see fit (section 25(13) read with Dolphin Whisper Trading 10 (Pty) Ltd v The Registrar of Deeds and Another (20645/08) [2009] [ZAWCHC] (31 March 2009) and Oribel Properties 13 (Pty) Ltd and Another v Blue Dot Properties 271 (Pty) Ltd and Others (12901/08) [2009] [ZAWCHC] (31 March 2009)). However, in terms of CRC 7 of 2011 read with the judgment of Roseparkadmin CC and Others v The Registrar of Deeds (Western Cape High Court Case no. 5522/2011 dated 17 May 2011) it is not the duty of the registrar of deeds to monitor the strict compliance with the section 25(2) plans. However, it is the duty of registrar of deeds to ensure that the extension is within the physical boundaries of the reserved right (see RCR 12 of 2011 and CRC 2 of 2012).

Once the right has been exercised by the building and completion of additional sections and/or exclusive use areas, the holder of the right is obliged to immediately apply for the registration of a sectional plan of extension.

If he/she fails to do so, he/she becomes liable to pay the body corporate ‘quasi-levies’ – amounts calculated from 90 days after the sections are completed for occupation as if the sectional plan of extension had been registered and the additional buildings attracted liability for levies in the same manner as the registered sections in the scheme.

The body corporate may not issue a levy clearance certificate in respect of the additional sections shown on the sectional plan of extension until these amounts have been paid (section 25(5A)).

A separate sectional plan is registered for each phase of a scheme extended by the addition of sections (section 25(9)). When a developer reserves the right to extend the scheme by the addition of sections the sectional plan for the first phase shows the buildings in the first phase and the areas of common property reserved for future extension(s). Where the right vests in the body corporate the sectional plan registered for the scheme possibly may not indicate the possibility of any future extension.

The sectional plan of extension registered for the second and any subsequent phases of any scheme shows the buildings in that and previous phases as well as any areas of common property which remain reserved for future extension(s).

On registration of a sectional plan of extension, the original register is extended to include the sections and exclusive use areas on the sectional plan of extension.

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Each sectional plan of extension includes a new participation quota schedule. The new schedule includes the sections added to the scheme and adjusts the quotas of the sections that formed part of earlier phases (section 25(8)).

On registration of each sectional plan of extension the participation quota allocated to each section decreases. This results in a proportionate decrease in the share of the existing owner in the common property and in a relative decrease in the value of his vote and his/her share of the common expenses.As each sectional plan of extension is registered, title deeds are issued to the holder of the extension right for each additional unit and exclusive use area(s). These title deeds are issued subject to any sectional mortgage bond registered over the extension right (section 25(12)(b)).

The successors in title of the body corporateIt is logical that the body corporate is not a persona whose members remain the same. It is possible for the members to change from day to day. Thus, the right vested in the body corporate in terms of section 25(6), passes to each new owner of a section in the scheme. Naturally this occurs without any formal cession of the right to the new owner.

As mentioned, the body corporate is also authorised, in terms of section 25(6), to transfer the real right of extension, with the written consent of all the members of the body corporate as well as with the written consent of the mortgagee of each unit. The cessionary then has the right to carry out the extension within the period originally prescribed by the body corporate on registration of the notarial cession of real right.

The provisions of section 15B(1)(d) apply mutatis mutandis on expiry of this right through time.

The developer where no reservation was madeIf no reservation has been made by a developer as contemplated in section 25(1) or has been made and same has lapsed, and the body corporate has not as yet been established, the developer may apply to the registrar of deeds for the issue of a certificate or certificates of real right of extension as contemplated in section 12(1)(e) (see section 25(6A) and RCR 45 of 2007).

The application must be accompanied by –

• anysectionalmortgagebondandthewrittenconsentofanybondholder;• thedocumentscontemplatedbysection25(2).

The developer may not unilaterally extend the time period prior to the body corporate being established, nor may the co-developer extend the time period of the right of extension prior to the body corporate being established. The developer must cancel the existing right and register a new right (see RCR 66 of 2011).

Application to the registrar of deeds for registration of a sectional plan of extension of a scheme by the addition of sectionsA developer or his successor in title to a right reserved under section 25(1) or 25(6A), or the body corporate in terms of section 25(6), or its successor in title, as the case may be, may, on approval of the sectional plan of extension by the Surveyor-General apply for registration of such plan of extension and the inclusion of the additional section or sections in the relevant sectional title register (section 25(9)).

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Where the developer extends the scheme and wants to impose a condition tying the units and exclusive use areas, it can be effected by virtue of a notarial tie agreement, provided the body corporate is in existence. Alternatively it must be created in the deed of transfer on subsequent transfer (RCR 36 of 2004).

The provisions of section 5, 6 and 7 shall apply mutatis mutandis to the submission of a draft sectional plan of extension to the Surveyor-General and the approval thereof (section 25(8)).

The application to the registrar of deeds in terms of section 25(9) must be made on prescribed Form O in Annexure 1 to the Regulations.

In terms of RCR 46 of 2005 two holders of separate rights of extension may lodge one combined application, provided their individual interests are clearly reflected, alternatively two separateapplications can be lodged in one lodgement cover to which only one SS code will be allocated.

Documents to accompany the application to a registrar:

• Allthedocumentsasprovidedforinsection25(2)oftheActmustalreadyhavebeenlodgedat the deeds registry. More often than not the documents as provided for in section 25(2) of the Act are not lodged with the opening of the sectional title register or are subsequently lost or destroyed. Regulation 25A provides a mechanism for the substituting of such lost or destroyed documents, instead of referring the matter to court, and reads as follows:

“25A.(1) A registrar of deeds must, if any of the documentation referred to in section 25(2)(a), (b), (c), (d) or (g) of the Act have been lost or destroyed, on written application by the body corporate or if a body corporate has not been established, on written application by the developer, accompanied by replacement documentation, arrange for such replacement documentation to be filed in the relevant sectional title file.

(2) The registrar of deeds must, before filing of the replacement documentation in the relevant sectional title file, at the expense of his or her deeds registry, publish in the prescribed form a notice in two consecutive ordinary issues of the Gazette and in two consecutive issues of a newspaper circulating in the area of jurisdiction of the deeds registry in which the scheme is registered, of the intention for replacement documentation to be filed in the relevant sectional title file.

(3) A draft of the replacement documentation accompanying the application, shall be open for inspection in the deeds registry free of charge by any interested person, for a period of six weeks after the date of the first publication of the notice in the Gazette, during which period any person interested may object to the filing of replacement documentation in the relevant sectional title file.

(4) Any person who has lodged with the registrar an objection to the filing of the replacement documentation in the relevant sectional title file may, in default of any arrangement between him and the applicant, apply to the court within one month after the last day upon which an objection may be lodged, for an order prohibiting the registrar from filing the replacement

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documentation in the relevant sectional title file, and the court may make such order on the application as it may deem fit.

(5) The replacement documentation shall be as nearly as possible a reflection of the lost or destroyed documentation and shall take the place of the lost or destroyed documentation.

(6) The replacement documentation must be endorsed with a deeds registry date endorsement upon the filing thereof in the relevant sectional title file.

(7) In the event of any of the documentation referred to in section 25(2)(a), (b), (c), (d) or (g) of the Act, in lieu of which a copy has been issued under the provisions of this regulation, being subsequently found and produced to the registrar, he or she shall endorse thereon that it has become void.”

• Twocopiesofthesectionalplanofextension(section25(10)(a));

• Noratesclearancecertificateisrequired,unlessasectionissimultaneouslytransferred;

• Thecertificateofrealrightbywhichthereservationorestablishmentintermsofsection25(1)or 25(6) is held (section 25(10)(c));

• Thesectionalmortgagebond(s)registeredagainstthecertificateofrealright,togetherwiththe consent of the mortgagee to the substitution of the sections depicted on the sectional plan of extension and their undivided shares in the common property, as security in lieu of the real right held under the certificate of real right mortgaged under the bond (section 25(10)(c));

• Certificates of registered sectional title in the prescribed form C (Regulation 25(2) and see Annexure E) in favour of the developer, his/her successors in title or the body corporate, as the casemaybe,inrespectofeachsectionreflectedontheplanofextension(section25(10)(d)).

• Anyotherprescribeddocumentsandparticulars(section25(10)(f)).

• Prooffromthearchitectorsurveyorconcernedthattheextensioniswithinthespecifiedareaof the common property (CRC 2 of 2012)

Lodgement covers and linking of documents for lodgement at a Deeds Registry

Lodgement Cover No 1 This cover will contain:

• Thesectionalplanofextension,induplicate.

• the application prepared in compliance with the prescribed Form O to Annexure 1 of the regulations: Prescribed Form O should be self-explanatory. However, the application relates to:

àthe registration of the sectional plan of extension; and

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àthe issue of certificates of registered sectional title and certificate of real right of exclusive use areas, where applicable. àthe application contains a preparation clause. àit is unnecessary for witnesses to attest the signature of the applicant (developer).

• Thecertificateofrealrightbywhichthereservationintermsofsubsection(1)or(6)isheld.

• Anyotherconsent(s)thatmightberequired.

Lodgement Cover No 2 The cover will contain the following:

Any sectional mortgage bond registered against the certificate of real right and the consent of the mortgagee to the substitution of the sections depicted on the sectional plan of extension and their undivided shares in the common property, a security in lieu of the real right held under the certificate of real right mortgaged under the bond (section 25(10)(c)).

As a formal prescribed form to the regulations for such consent is not available, care must be taken to include the following when furnishing such consent:

• theremustbeexpressconsenttothesubstitutionofthesectiondepictedonthesectionalplan of extension and their undivided shares in the common property, as security in lieu of the real right as contemplated in section 25(10)(c);

• theconsentmustcontainapreparationclause;and

• themortgagee’ssignaturemustbeconfirmedbytwocompetentwitnessesorbyacommissioner of oaths or any other official referred to in a section 95(1) of the Deeds Registries Act 47 of 1937.

Lodgement Cover No 3This cover will contain:

• thecertificate(s)ofrealrightsissuedtothedeveloper,intermsofsection12(1)(f),incompliance with Form G to the Regulations, if there are exclusive use areas depicted on the sectional plan of extension. Prescribed Form G also has a preparation clause and is signed by the registrar and sealed with his seal of office.

The exclusive use area must be shown on the sectional plan of extension and each type of use area set out. The exclusive use area(s) are set out separately and are also individually numbered on the sectional plan (regulation 5(k)(v)).

ThecertificateprescribedinFormGwillthusreflectalltheuseareas,aswellasthetypeofuse area according to the number allotted thereto on the sectional plan.

Each type of exclusive use area will be set out in a separate paragraph, alternatively a certificate of real right can be issued for each of the reserved exclusive use areas.

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Lodgement Cover No 4 and any subsequent coversThese covers will contain:

• CertificatesofregisteredsectionaltitleintheprescribedformCinfavourofthedeveloper,his/ hersuccessorintitleorthebodycorporate,asthecasemaybe,inrespectofeachsectionreflected on the plan of extension.

Duties of registrar of deeds in this regard include the following:

• the registrar must register the sectional plan of extension and allocate a distinctive number thereto (section 25(11)(a));

• theregistrarmustextendthesectionaltitleregisteroftheexistingschemetoincludethesections depicted on the sectional plan of extension (section 25(11)(b));

• simultaneouslywiththeregistrationofthesectionalplanofextension,theregistrarofdeedsmust issue to the developer, his successor in title or the body corporate, as the case may be (section 25(11)(c)), a certificate of registered sectional title, in the prescribed form C, in respect of each section depicted on the sectional plan of extension and its undivided share in the common property;

• theRegistrarmustnotifytheSurveyor-Generaloftheregistrationofsuchplanofextension,and thereupon the Surveyor-General will amend the original sectional plan and the deeds office copy toreflectsuchextension;

• theRegistrarmustfurnishthelocalauthorityconcernedwithacopyoftheregisteredsectional plan of extension (section 25(11)(c) and regulation 25(3)). The registrar will also notify the local authority of the registration of the plan of extension; and

• theRegistrarmustmakethenecessaryentriesinhisrecordsandthenecessaryendorsementson the newly issued certificates of registered sectional title, the certificate of real right and any section mortgage bond registered against a certificate of real right, in order to carry out the extension (section 25(11)(d)).

A sectional mortgage bond which is registered against the certificate of real right of extension of a scheme, must be registered against all the certificates of registered sectional title of newly created sections, as well as against certificates of real right of exclusive use areas which are depicted on the sectional plan of extension. It is thus regarded as a mortgage bond against the sections on the sectional plan of extension.

If there are further phases to follow, in terms of the reservation, the mortgage bond must remain registered against the certificate of real right. EffectofregistrationofaSectionalPlanofextensionofascheme

• The owners of sections in the building or buildings in the scheme that is being extended, the mortgagees of sectional mortgage bonds and the holders of any real rights registered over

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such sections, are divested of their share or interest in the common property to the extent that an undivided share in the common property is vested in the developer, his successor in title or the body corporate, as the case may be, by the issue of the certificates of registered sectional title of the new sections depicted on the sectional plan of extension of the scheme (section 25(12)(a)).

• Asectionalmortgagebondwherebyarealrightheldbyacertificateofrealrightismortgaged,is deemed to be a sectional mortgage bond over the sections depicted on the sectional plan of extension and their undivided share in the common property and registered against the newly issued certificates of registered sectional title (section 25(12)(b)).

• Thesectionalplanofextensionisdeemedtobeincorporatedinthesectionalplanregisteredin terms of section 12(1)(a) and the provisions of section 13(1) and (2) apply mutatis mutandis thereto (section 25(12)(c)).

General

ProtectionforpurchasersofunitsinaschemesubjecttoarightofextensionofsuchaschemeIn the case where a developer or a body corporate has a real right to extend a scheme, such right must be disclosed in the deed of alienation to every purchaser of a section in the scheme concerned (section 25(14)). A deed of alienation in which the real right has not been disclosed, is voidable at the option of the purchaser (section 25(15)(a)).

Mechanism to extend the period of time in which a right of extension must be exercisedThe Sectional Titles Amendment Act, 11 of 2010, which came into operation on 7 December 2010 (see Government Gazette 33849) has provided for a mechanism whereby the time period for which a right of extension was reserved can be extended.

The time period can be extended by the entering into of a bilateral notarial deed entered into between the body corporate and the developer. It is clear from the wording of the section that the body corporate must be in existence before the time period can be extended. Should the body corporate not be in existence, the developer will have no other option but to cancel the right of extension and reserve the right de novo and include the period of extension in the new reservation.

The following supporting documents must be lodged with the registrar of deeds:

• Thebilaterallyexecutednotarialdeed The agreement must have been attested prior to the lapsing of the real right of extension. However, the bilateral notarial deed does not need to be registered in the deeds registry concerned, prior to the date or expiry of the real right of extension (see RCR 65 of 2011).

• The consents of all bondholders It is also unclear what the cut-off date for the bondholders consent will be. Once again, it is submitted that the date of attestation of the agreement between the body corporate and the developer should be the cut-off date for obtaining bondholders consents. The consents must be filed in the Notaries protocol (RCR 68(b) of 2011).

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• TransferDutyReceipt/Exemption The agreement to extend the time period of the right of extension is deemed to be a transaction, as envisaged by section 1 of the Transfer Duty Act 40 of 1949, and thus a transfer duty receipt or transfer duty exemption certificate must be lodged (see RCR 68(a) or 2011).

• UnavailabilityofUnanimousResolution It is clear from the Act, that a unanimous resolution, as defined, is required to extend the time period for exercising the right of extension. However, the Act is not clear as to whether the Court can be approached should the unanimous resolution not be obtained. Based on the unreported case of SP and C Catering Investments (Pty) Limited v The Body Corporated of Waterfront Gauteng and 17 Others (Case No. 84/2009) it does not appear as if the court has any authority to extend the time period contained in a real right of extension.

The unanimous resolution need not be lodged with the registrar of deeds, but should be retained in the Notaries protocol (see RCR 68(c) of 2011).

• SubdivisionofRealRightofExtension More often than not a developer subdivides the real right of extension and cedes the subdivided portions to “co-developers”. The subdivision, and cession of such right, does not create a body corporate and thus the relief of extending the time period unilaterally by the “co-developers” is also not possible. Their only option will be, as with the developer, to cancel the right and re- reserve the right de novo (see RCR 66 of 2011).

Cession of a real right of extensionThe registrar may not register a cession of real right of extension or a portion or an undivided share therein, unless a certificate by a conveyancer is produced to the registrar confirming that as at date of registration:

• ifabodycorporateisdeemedtobeestablishedintermsofsection36(1),thatthebodycorporate has certified that all moneys due to the body corporate by the cedent in respect of the said real right have been paid, or that provision has been made to the satisfaction of the body corporate for the payment thereof; or

• ifabodycorporateisnotdeemedtobeestablished,thatnomoneysarepayable(section25(4)).

Lapsing of a real right of extension which has been subdividedSection 25(4)(b) of the Act provides for the subdivision and cession of a real right of extension, reserved in terms of section 25 of the Act. It often happens in practice that the developer opens a sectional title register in respect of two insignificant sections, sometimes a mere two square metres in extent, and reserves a right of extension in respect of the remainder of the scheme. The reservation is, more often than not, divided into different portions of land comprising the scheme, for which separate diagrams are framed and approved (see RCR 66 of 2009).

On cession of the respective subdivided portions of the real right of extension to the cessionaries, a body corporate does not come into existence. The new cessionaries merely become “co-developers” of that part of the common property ceded to them. Should the period of time stipulated in the real right of extension of the portion so ceded lapse, the right so ceded lapses and that portion of the

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common property comprising the subdivide real right of extension vests in the initial developer being the owner of the two insignificant sections, provided no other subdivided real right of extension is still operative. The co-developer loses all right he/she had as developer or co-developer.

The question begging an answer is how the former cessionaries of the real rights of extension which has lapsed can again obtain title to their real right, should they so wish?

The only solution to this scenario would be for the initial developer to apply de novo for the reservation of the real right of extension in terms of section 25(6A) of the Act. This application can obviously only be brought once the certificate(s) of real rights have been endorsed in terms of section15B(d)(1) of the Act to indicate the lapsing thereof (see RCR 45 of 2007 and RCR 13 of 2011 as amended by RCR 5 of 2012).

Together with the reservation of the real right new plans, proof and documentation as provided for in section 25(2) of the Act must be lodged with the application made by the original developer. The respective certificate(s) of real rights of extension will be issued to the developer who in turn will have to cede the newly subdivided rights of extension to the holders by virtue of a new agreement.

This is a very laborious and a costly procedure given the transfer duty implications. However, there is no other way of addressing the issue of subdivided real rights of extension that have been ceded and the time period in which such right must be exercised has lapsed, prior to the building(s) being erected.

Developers and co-developers are warned to monitor the period for which the right was initially registered, as they do not have any mechanism in terms of the Act or the common law to extend the period of time, prior to the body corporate being established, or where the time period has lapsed by effluxion of time (see in this regard the unreported case of SP and C Catering Investments (Pty) Limited v The Body Corporate of Waterfront Gauteng and 17 Others (Case No. 84 of 2009).

33.9 Termination of a sectional Title Scheme

Whenever a sectional plan is cancelled, either on authorisation by the court or in terms of one of the alternative methods provided for in the Sectional Titles Act 95 of 1986, the registrar of deeds must effect the necessary alterations, amendments, endorsements and entries on the title deeds and in the registers and records kept by him/her. Furthermore, the Registrar must cause the land comprising the sectional title scheme to revert back to the land register. Depending on the circumstances, this is done by either reviving the developer’s old title deed or issuing a certificate of registered sectional title in the form prescribed by the Deeds Registries Act, subject and/or entitled to such servitudes, other real rights and conditions which are still applicable to or in respect of the land.

The various procedures for the termination of a sectional title scheme, as provided for in the Act, will now be discussed.

Application by the developer (section 14(6))Where, for his/her own particular reasons a developer (see the definition of “developer” in section 1) desires cancellation of a sectional title plan, which entails termination of the sectional title

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scheme, such developer may apply to the Registrar concerned for such cancellation. It is to be noted that this option avails the developer only. This option is accordingly not available to a body corporate that had earlier come into existence. In such case the provisions of section 14(6) cannot be invoked, and a court will have to be approached for the cancellation of the sectional plan (see section 48 and 49 infra).

The written application by the developer for the cancellation of the sectional plan concerned needs be accompanied by the following:

A certificate by a conveyancer in which he certifies that:

• alltheunitsintheschemeareregisteredinthedeveloper’sname;

• whereapplicable,thedeveloperistheholderofacertificateofrealrightofexclusiveuseareasand/ or right of extension; and

• thatnounitorrealrightofexclusiveuseareaorextensionisencumberedbyasectionalmortgage bond or a lease, or in any other way;

• allthecertificatesofregisteredsectionaltitle;

• thetitlestoanyrealrights.Thiswillobviouslyincludethecertificateofrealrightsissuedinterms of sections 25 and 27 of the Act (see clause 6.1 of CRC 6 of 1988);

• thecertificateofregisteredtitleissuedintermsofsection43A(1)oftheDeedsRegistriesAct47of 1937 (see prescribed form SS). Such certificate of registered title must be made subject and/or entitled to all such servitudes, other real rights and conditions (if any) as are still applicable to or in respect of such land.

Section 14(7), however, also provides, as an alternative to the issuing of the aforementioned certificate of registered title, for the endorsing of the developer’s title deed to the land to the effect that such title deed is revived (sic). The developer will in his/her application have to apply for the endorsing of the title deed in this regard.

Alienation of common property (section 17)The common law power of co-owners to jointly alienate property owned in common, is confirmed by section 17 of the Act which affords sectional owners the right to alienate the whole or part of common property comprised in a scheme, by unanimous resolution. A pre-requisite, however, for the application of the provisions of section 17, is that the body corporate for such scheme must have already been established. The Act does not provide for the developer, prior to the establishment of the body corporate, to alienate the whole or part of the common property. It is, however, held that this is a common law right of the developer.

Section 17(3) to (5) deals with three different transactions with regard to the common property, namely:

• whereaportionofthecommonpropertywhichcontainsnosections,isalienatedorleased;

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• whereaportionofthecommonpropertywhichcontainsasectionorpartofasectionisalienated or leased; and

• wherethewholeof the landcomprisedinthecommonproperty(includingall thesections) is alienated or leased.

This chapter will be restricted to the last transaction which also has the effect of terminating a sectional title scheme.

Where the whole of land comprised in the common property is alienated, the transfer of such common property is effected by virtue of a deed of transfer drafted in accordance with prescribed Form H in Schedule 1 to the regulations.

The aforesaid prescribed form requires that all the servitudes, conditions or real rights to which the common property is subject or entitled must be contained in such deed of transfer.

The aforesaid deed of transfer must be accompanied by the following supporting documents:

• acopyoftheunanimousresolutioncertifiedbytwotrusteesofthebodycorporate(section17(2));

• the sectional title deeds of the owner of the common property. No consent by the sectional owners is required;

• allopenbondsmustbelodgedfordisposal(seeinthisregardsection18whichmakestheprovisions of section 56 and 57 of the Deeds Registries Act mutatis mutandis applicable in this instance);

• wheretheschemeissubjecttoarealrightofextension,thetitletosuchrighttogetherwiththe consent of the holder of such right. In the case where the real right of extension is mortgaged, the bond(s) must also be lodged for disposal (see clause 9.2 of CRC 6 of 1988);

• allcertificatesofexclusiveuseareas;

• thenecessarytransferdutyreceipt;and

• thenecessaryratesclearancecertificate.

Subsequent to the registration of the aforesaid deed of transfer, the Registrar must simultaneously endorse the deed of transfer to the effect that the property has reverted to the land register.

33.10 Destruction of building (section 48 and 49)

In terms of section 48 of the Act, the building or buildings comprised in a scheme shall, for the purposes of the Act, be deemed to be destroyed:

• uponthephysicaldestructionofthebuildingorbuildings;

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• whentheownersbyunanimousresolutionsodetermineandallholdersofregisteredrealrights consent thereto; and

• whenthecourtdeemsitjustandequitabletomakeanordertothateffect.

Once the building (or buildings) is “deemed to be destroyed”, the owners may by unanimous resolution decide not to rebuild and thus, in effect, terminate the scheme. It is a moot point whether, in the light of section 14(8), the owners may by unanimous resolution resolve to have a sectional plan cancelled, lacking the physical destruction of the building.

With due cognisance to the aforesaid, where a building or buildings in a scheme is or are deemed to be destroyed, and the owners have by unanimous resolution resolved not to rebuild the building or buildings, the body corporate must lodge with the registrar the following:

• anotificationtotheRegistrardrawninaccordancewithprescribedformYinAnnexure1tothe regulations (regulation 32);

• acopyoftheunanimousresolutionoftheownersthatthebuildingorbuildingsaredeemedtobe destroyed or a copy of the order of court, depending on the circumstances;

• intheabsenceofanorderofcourt,thewrittenagreementoftheholdersofregisteredsectional mortgage bonds and the agreement of persons with registered real rights;

• acopyoftheunanimousresolutionoftheownersnottorebuildthebuilding(s);

• thecertificateofrealrightsofextensionandexclusiveuseareasforthenotingthereonthatsuch rights have lapsed by virtue of merger (see para 20.2.3 of CRC 6 of 1988); and

• acertificateofregisteredtitleissuedinaccordancewithsection43A(1)oftheDeedsRegistries Act, drawn in accordance with prescribed form SS to the Deeds Registries Act. A certificate of registered title must be lodged in respect of each former sectional title owner for his/her undivided share in the land (the share is determined according to the participation quota).

The certificate of registered title must be made subject and/or entitled to all the conditions set out in the section 11(3)(b) certificate as well as any conditions registered against the unit, for example, usufruct etc, (see para 20.2.4 of CRC 6 of 1988).

Rebuilding of destroyed buildingWhen a building is deemed to be destroyed and the owners by unanimous resolution authorise the rebuilding and reinstatement in whole or in part of the building or buildings (see section 48(1)(3)(a)), the rebuilding must be in accordance with the existing sectional plan (see RCR 50 of 2005).

Any deviations from the plan will necessitate a further act of registration in terms of the Act.

33.11 Termination of sectional title ownership by unanimous resolution

More often than not sectional title owners no longer wish to continue as sectional title owners, but would prefer, for some or other reason, to once again become freehold owners of the land on which the scheme is established. To achieve this, the provisions of sections 48 and 49 of the Act can be invoked.

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Section 48 provides that the building(s) comprised in a scheme will be deemed destroyed, under the following circumstances:

• Thephysicaldestructionthereof;

• Whentheownersbyunanimousresolution,andtheholdersofrealrightssodetermineandagree:

Should owners of sections by unanimous resolution resolve that the buildings are deemed to be destroyed and all holders of sectional mortgage bonds and other holders of real rights agree thereto in writing, the provisions of section 49 can be invoked to revert the land back to the land register.

In terms of regulation 32, read in conjunction with section 49(1), the body corporate must lodge with the registrar of deeds a notification drafted in accordance with prescribed form Y to the regulations together with a copy of the unanimous resolution of the owners, certified by two trustees of the body corporate.

Together with the notification and resolution the following must also be lodged:

• Thewrittenagreementofallregisteredsectionalmortgagebondsandtheagreementofholdersof registered real rights; if any.• Allthetitledeedsofthesections.• Alltitledeedsofregisteredrealrightsregisteredoverthesectionsandcommonproperty;ifany.• Thetitleoftherealrightofextension,ifany.• Allcertificatesofrealrightsofexclusiveuseareas;ifany.• Allregisteredsectionalmortgagebonds;ifany.

Simultaneously and in the same batch a certificate of registered title must be applied for and issued in accordance with section 43A(1) of Act 47 of 1937 and drawn in accordance with prescribed form SS to the Deeds Registries Act. The certificate of registered title will be issued in respect of each former sectional title owner, in respect of his/her undivided share in the land.

Should the free co-owners of the land decide that they require full ownership of a defined portion of the land, either the provisions of section 24(2) or section 26 of the Deeds Registries Act 47 of 1937 may be followed. Usually the co-owners enter into a partition agreement whereby each former co-owner now becomes a full owner of a defined portion of the land, provided all the requirements for the sub-division of the land have been complied with.

It is trusted that the above has shed more light on the termination of a sectional title scheme and the reversion of the land back to the land register.

33.12 Rights of holders of real rights of extension on termination of a sectional title scheme

Section 48 of the Act provides inter alia that the owners may by unanimous resolution agree to the destruction of the building, comprising a sectional title scheme. Section 49 of the Act, furthermore, provides that where the owners may also by unanimous resolution resolve not to rebuild the building, in which case:

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• theownersshallceasetobeseparateownersofsections,butshallremainco-ownersofthelandin undivided shares proportionate to the quotas of the respective sections previously owned by them; and

• anyrightstotheextensionoftheschemereferredtoinsection25,togetherwithanymortgage bonds registered over the said rights, shall be surrendered to the registrar for cancellation.

The above two sections, and the effect thereof, could have severe financial implications for holders of real rights of extension and holders of mortgage bonds registered over such real rights.

It often occurs in practice that developers develop a scheme comprising of two, two square meter buildings in order to comply with the requirements for the opening of a sectional title register, and simultaneously with the opening of the sectional title register, reserve real rights of extension in respect of the rest of the common property (providing “land parcels”). These real rights of extension are then sold to buyers who are, more often than not, ignorant of the fact that they are purchasing into a sectional title scheme rather than freehold ownership.

On transfer of the two sections to purchasers a body corporate is established, whereafter such body corporate decides to close the sectional title register and establish a township, whereby freehold ownership will be afforded the owners. However, as previously alluded to only the owners of sections will become co-owners of the land comprising the scheme. The holders of real rights of extension obtain no rights in the land and the bondholders of bonds registered over such real rights of extension also relinquish their security where the buildings are deemed to be destroyed and it is elected not to rebuild the buildings.

It must be mentioned that section 48(1)(b) of the Act clearly provides that a building or buildings can only be deemed to be destroyed “when the owners by unanimous resolution so determine and all holders of registered sectional mortgage bonds and the persons with registered real rights concerned agree thereto in writing.”

It is thus clear that the holders of the real right of extension, as well as the bondholders of bonds registered over such real rights, would have consented to the building being deemed destroyed (see the definition of sectional bond). However, section 49 only requires a unanimous resolution to resolve not to rebuild the building, resulting in the owners ceasing to be owners of separate sections and the land reverting to the land register free from the real rights to extend, and the bond(s) registered over such real rights of extension (see section 49(3)(d) of the Act).

The resolution resolving not to rebuild the buildings could, without doubt, have dire financial implications for bondholders over real rights of extension and possibly also for the holders of real rights as the latter have no security until such time as the co-owners establish a township and transfer an erf to such holder in lieu of the real right of extension, if this was part of the initial agreement.

33.13 Dissolution of the body corporate

Except for the provisions of section 48(6) of the Act which empowers a court of law to make an order for the winding up of the affairs of a body corporate on destruction of the building, no further provision exists. The provisions of the Companies Act 61 of 1973 also do not find application to a body corporate established in terms of the Sectional Titles Act (see in this regard the decision of In re The Body Corporate

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of Caroline Court 2001 (4) SA 1230 (SCA) where the judge stated categorically that the provisions of the Companies Act shall not apply to a body corporate established in terms of the Act). It is thus clear that the Act contains inadequate provisions in this regard and this is a matter that needs urgent attention.

33.14 Conversion of a Share Block into Sectional Title-ownership

IntroductionSubsequent to the registration of the sectional plan effecting the conversion of a share block scheme into a sectional title scheme, the share block company may transfer units in the scheme to share block holders, or any third party. The transfer of units to share block holders is governed by the Share Blocks Control Act 59 of 1980, whilst the transfer of units from the share block company to another party, other than the share block holder, is governed by the Sectional Titles Act 95 or 1986.

It stands to reason that in view of the different legislation governing the transfers that the practices and procedures will differ. What follows is the standard documentation required with the transfer in terms of the different legislation, as well as the wording for the section 15B(3)-certificates in each case.

Transfer of a unit to a shareholderThe transfer of a unit is usually effected by virtue a sectional deed of transfer drafted in accordance with prescribed form H, and accompanied by the following:

• thetitledeedoftheunit(CRSTinfavouroftheshareblockcompany);

• allmortgagebonds(ifany)overthesectionaltitlescheme;

• thewrittenconsentbysuchbondholderstothereleaseoftheunitfromtheoperationofthebonds or the cancellation of the bonds (if applicable);

• thespecialpowerofattorneytopasstransfer;

• thetransferdutyreceipt;

• aratesclearancecertificatefortheland,ifthetransferwillresultintheestablishmentofthebody corporate, and a rates clearance certificate for the unit;

• nosection15B(3)(c)-affidavitneedbelodgedbytheshareblockcompany;

• thecertificatebytheconveyancerintermsofsection15B(3)(a)oftheSectionalTitlesActwhich must contain the following information, depending on the circumstances.

“That as at the date of registration of the transfer of the unit; if transfer will result in the establishment of the body corporate, that no body corporate is in existence, thus no money is payable; or if a body corporate is already in existence, that all money due to the body corporate has been paid or

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that payment has been secured to the satisfaction of the body corporate; and that no real right to extension of the scheme as contemplated by section 25(1) of the Sectional Titles Act has been reserved in favour of the share block scheme; or, if such right is so registered, that it is disclosed in the deed of alienation to the transferee as contemplated in section 25(14) or, if it is not so disclosed, that the transferee after the conclusion of the deed of alienation has in writing exercised his or her option in terms of section 25(15) and that he or she has elected not to annul the alienation on the ground of the said defect; and according to a sworn declaration or affidavit furnished by the share block company, the transferee has paid all the levies due to the company or has been secured to the satisfaction of the share block company; and that the share certificate, the signed share transfer form and the written waiver of the occupancy rights have been delivered, as provided for in item 8(3) of Schedule 1 to the Share Blocks Control Act.”

The causa of the transfer should be drafted along the following lines:

“Transfer of the said unit arises from the following:

The sale by private treaty on the … day of … [date] for the sum of … [purchase price of shares] of share block(s) No(s) … comprising … [number of] shares and linked loan account in … [full name of company], and the application by the transferee on the … day of … [date] for conversion of the transferee’s right to occupy that part of the building shown and more fully described on sectional plan No SS … as section No … [number of unit and name of scheme] into sectional title ownership, such application being by way of exercise of the option conferred on the transferee by the provisions of item 8(1)(b) of Schedule 1 to the Share Blocks Control Act 59 of 1980.”

Thedateofthetransactionreflectedonthetransferdutyreceiptmustbethedateoftheapplicationfor transfer of the unit – not the date of purchase of the shares.

Transfer of a unit to somebody other than a shareholderThe transfer of the unit will also usually be drafted in accordance with prescribed Form H to the Sectional Titles Act, and be accompanied by the following:

• thetitledeedoftheunit(CRSTinfavouroftheshareblockcompany);• allmortgagebonds(ifany)overthesectionaltitlescheme;• thewritten consent by suchbondholders, to the release of theunit from theoperationof the bonds or the cancellation of the bonds (if applicable);• thespecialpowerofattorneytopasstransfer;• thetransferdutyreceipt;• aratesclearancecertificatefortheland,ifthetransferwillresultintheestablishmentofthebody corporate, and rates clearance certificate for the unit;• aswornaffidavit/declarationbytheshareblockcompany(asthedeveloper)withregardtothe applicability of section 10 to the specific unit, as provided for by section 15B(3)(c) of the Act;• conveyancer’scertificatewithregardtothespecialresolutionreadingasfollows:

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“I, the undersigned … [particulars of conveyancer] conveyancer, hereby certify that the within sale is pursuant to Special Resolution passed in terms of section 8(1)(c) of the Share Blocks Control Act 59 of 1980 and therefore the other provisions of the Act are not applicable. _______________________ _____________________ [signature] [date] CONVEYANCER”

• Thecertificatebytheconveyancerintermsofsection15B(3)(a)oftheSectionalTitlesActwhich must contain the following information, certified by the conveyancer:

“That as at the date of registration of the transfer of the unit – if transfer will result I the establishment of the body corporate, that no body corporate is in existence, thus no money is payable; or if a body corporate is already in existence, that all money due to the body corporate has been paid or that payment has been secured to the satisfaction of the body corporate; and that no real right to extension of the scheme is contemplated by section 25(1) of the Sectional Titles Act has been reserved in favour of the share block scheme; or, if such right is so registered, that it is disclosed in the deed of alienation to the transferee as contemplated in section 25(14) or, if it is not so disclosed, that the transferee after the conclusion of the deed of alienation has in writing exercised his or her option in terms of section 25(15) and that he or she has elected not to annul the alienation on the ground of the said defect; and according to a sworn declaration or affidavit furnished by the share block company, that arrangements have been made to the satisfaction of the share block company for the payment of all costs and the signing of all the documentation referred to in item 8(1)(c) of Schedule I to the Share Blocks Act (consult item 8(3) of Schedule I to the Share Blocks Act).

TheCausafortheTransferoftheUnitThe causa for the transfer will not differ from the causa as contained in prescribed Form H.

From a conveyancing perspective it is imperative to determine whether the transfer of the unit is to a shareholder or to someone other than a shareholder. When a share block company is transferring a unit it will either be to a shareholder or to someone other than a shareholder. The causa of the deed will be the guide as to whether the transferee is a shareholder or a person other than the shareholder.The supporting documents and certificate from the conveyancer differs in the case where the transferee is a shareholder or someone other than a shareholder.

518


519


TABLE OF CASESAAird v Blackley’s Estate 1937 EDL 34 ..................................................................................................................... 109Alexander v Johns 1912 AD 431.............................................................................................................................. 131Armstrong Ex parte and another, Ex parte 1957 (3) SA 625 (O)........................................................................ 326Armstrong v Bhamjee 1991 (3) SA 195 (A)........................................................................................................... 123

BBarclays Bank v Minister of Lands 1964 (4) SA 284 T............................................................................................ 39Barclays Western Bank Ltd v Comfy Hotels Ltd 1980 (4) SA 174 E................................................................... 344Barker & Co. v Blore ................................................................................................................................................... 94Bellairs v Hodnett and Another 1978 (1) SA 1109 (A) ........................................................................................ 141Bhe and Others v Magistrate Khayelitsha and Others 2005 (1) SA 580 CC....................................................... 160Blesovsky NO and Other v Shipper and Another 2001 (4) SA 1269W............................................................... 289Bodasing v Christie NO and Another 1961 (3) SA 553 (A)................................................................................. 323Bodasing v Christie NO and another 1961 (3) SA 553(A)................................................................................... 326Boland Bank Ltd v Vermeulen 1993 (2) SA 241 (E)............................................................................................. 317Bopape v Moloto 2000 1 SA 383 T.......................................................................................................................... 425Bosman v Richter 1853-6 C (2 Searle) 78....................................................................................................... 154, 155Breytenbach v Frankel and another 1913 AD 390................................................................................................. 315Brown v Rickard 1883 (2) SC 314.................................................................................................................... 150, 326Brown v Rickard 1983 SC 314T............................................................................................................................... 326Butcher & Sons v Baranov Bros (1905) 26 NLR 589......................................................................................... 93, 94Bydawell v Chapman NO 1953 (3) SA 514 (A)...................................................................................................... 178

CCelliers v Celliers 1904 TS 926................................................................................................................................... 86Chapman v Gersigny (1882) 3 NLR 122................................................................................................................... 93Cilliers NO and Another v Registrar of Deeds, OFS............................................................................................. 458CIR v Pretorius 1986 (1) SA 138 (A)....................................................................................................................... 396Colchester Zoo SA Investments (Pty) Ltd v Weenen Safaris CC......................................................................... 450Commissioner for Inland Revenue v Graaf 1935 AD 210.................................................................................... 389Corporate Liquidators (Pty) Ltd v M A Wiggill 2007 (2) SA 520 T.................................................................... 233Covary v Registrar of Deeds 1948 (3) SA 183 (C)................................................................................................. 106Crous NO v Utilitas Bellville 1994 (3) SA 720 (C)................................................................................................. 142Cuming v Cuming and Others 1945 AD 201......................................................................................................... 178

DDaniels v Campbell NO and Others 2004 (5) SA 331 CC.................................................................................... 184De Kock v Admin of de Kock’s Estate 1945 (2) PH G 49).................................................................................... 155De Villiers v Estate de Villiers 1929 CPD 106........................................................................................................ 285De Wet v De Wet 1951 (4) SA 212 (CPD)............................................................................................................... 178De Wet v De Wet and Others 1951 (4) S.A.L.R. 212.............................................................................................. 181Dirk Cornelius De Jager NO and Others v Balju van die Hooggeregshof, Bloemfontein-Wes and Others................................................................................................................................. 199

520


Dolphin Whisper Trading 10 (Pty) Ltd v The Registrar of Deedsand Another (20645/08) [2009] [ZAWCHC]........................................................................................................ 229Du Plessis v Pienaar NO and Others 2003 (1) SA 671 (SCA).............................................................................. 155Du Toit v Visser and Another 1950 (2) SA 93 C.................................................................................................... 138Durban City Council v Woodhaven Ltd and Others 1987 (3) SA 555 (A)......................................................... 123

EEaton & Louw v Arcade Properties (Pty) Ltd 1961 (4) SA 233 (T)....................................................................... 94Edelstein v Edelstein NO 1952 (3) SA 1(A)............................................................................................................ 388Ehrig and Weyer v Transatlantic Fire Insurance Co 1905 TS 557......................................................................... 14Eksteen and Another v Pienaar and Another 1969 (1) SA 17 (O)........................................................................ 89Elsie Gundwana v Steko Development CC and Others CCT 44/10 [2011] ZACC 14...................................... 252Estate Carstens v van der Westhuizen 1934 (C) AD 19........................................................................................ 340Estate Chin v National Bank 1915 AD 353............................................................................................................. 303Estate Smith v Estate Follett 1942 AD 364.............................................................................................................. 150Esterhuizen v Esterhuizen 1999 (1) SA 492 C.......................................................................................................... 84Ex parte Adams NO 1964 (2) SA 135 C.................................................................................................................. 187Ex parte Allwright, 1946 TPD 663............................................................................................................................. 51Ex parte Armstrong and another, 1957 (3) SA 625 (O)....................................................................................... 326Ex parte Badenhorst 1947 (2) SA 562 (O).............................................................................................................. 325Ex parte Basillie et Uxor 1928 CPD 218.................................................................................................................. 414Ex parte Bear and Sack 1926 W 240........................................................................................................................ 154Ex parte Boshi and Another 1979 (1) SA 249 (R)...................................................................................... 85, 86, 273Ex parte Bullard et Uxor 1937 TPD 297................................................................................................... 44, 104, 314Ex parte C Iroabuchi 2003 JDR 0254 (W), Case No. 22876/02 and 20540/02..................................................... 45Ex parte Cheng and Another 2004(1) SA118 WLD.............................................................................................. 389Ex parte De Jager 1926 27 NLR 413........................................................................................................................ 309Ex parte De Lange 1939 EDL 186.............................................................................................................................. 91Ex parte De Zwaan and Others 1909 TS 676......................................................................................................... 390Ex parte Estate Kerr 1942 NPD 412........................................................................................................................ 188Ex parte Faurd Tofie(unreported) (C) case no 11191/89..................................................................................... 180Ex parte Gitelson 1949 (2) SA 881 (O)................................................................................................................... 325Ex parte Gouws 1950 (1) SA 486 (T)....................................................................................................................... 235Ex parte Graham 1963 (4) SA 145 (D).................................................................................................................... 187Ex parte Grant 1952 (4) SA 95 N............................................................................................................................. 180Ex parte Grobler 1924 EPD 65................................................................................................................................. 285Ex parte Harmse 1917 TPD 585.............................................................................................................................. 270Ex parte Iroabuchi and Another 2004(1) SA 109 WLD....................................................................................... 389Ex parte Jooste 1968 (4) SA 437 (O)........................................................................................................................ 181Ex parte Kacholi Anjuman Islam 1945 (2) PHK 123............................................................................................ 259Ex parte Lindeman and Others 1963 (3) SA 735 (E).............................................................................................. 51Ex parte Menzies et Uxor 1993 (3) SA 799 (CPD)................................................................................................ 265Ex parte Minister of Native Affairs: In re Molefe v Molefe 1946 AD 315.......................................................... 425Ex parte Moodley and Ex parte C Iroabuchi 2003 JDR 0254 (W), Case No. 22876/02 and 20540/02............. 45 Ex parte Moodly and Another.................................................................................................................................. 389Ex parte Naude 1964 (1) SA 763 (D)........................................................................................................... 85, 86, 273Ex parte Norton NO 1958 (3) SA 120 (O).............................................................................................................. 235

521


Ex parte Oberholzer and Others 1951 (1) SA 554 (A)........................................................................................... 89Ex parte Orchison 1952 (3) SA 66 T........................................................................................................................ 415Ex parte Smit 1965 SA 783 (C) (321)...................................................................................................................... 160Ex parte Strumfer NO 1945 2 PHG 34.................................................................................................................... 155Ex parte Swart 1953 (3) SA 22 T.............................................................................................................................. 388Ex parte Van Borselen et Uxor 1942 (2) SA 69...................................................................................................... 388Ex parte Van Vuuren 1947 (2) SA 1142 T............................................................................................................... 325Ex parte Vels 1921 OPD 171............................................................................................................................ 235, 237Ex parte Venter et Uxcor 1948(2) SA 175 O.......................................................................................................... 390Ex parte Vermaak: In re Klopper v Lavdas 1980 (2) SA 696 T............................................................................ 246Ex parte Vorster 1958 (1) SA 91 (C)........................................................................................................................ 235Ex parte Wessels and Venter NNO: In re Pyke-Nott’s Insolvent Estate 1996 (2) SA 677 (O)......................... 187Ex parte Winwood et Uxor, 1946 NPD 279............................................................................................................. 390Ex parte Wismer 1950(2) 195 CPD......................................................................................................................... 391Ex parte Zunckel 1937 NPD 295............................................................................................................. 142, 144, 323Eyssel and Another v Barnes NO and Others (unreported Case 3617/1992).................................................... 161

FFatima Gabie Hassam v Johan Hermanus Jacobs NO and Others CCJ 83/08 [2009] ZACC 19.................... 161Foley’s Trustees v Natal Bank 1882(3) NLR 26...................................................................................................... 309Frankel’s Estate and Another v The Master and Another (1950) ALL SA 347 A........................................ 84, 421Frankel’s Estate v The Master 1950 (1) SA 220 A.................................................................................................... 61Furnivall v Cornwell’s Executors 1895 12 SC 6...................................................................................................... 305

GGlatthaar v Hassan 1912 TPD 329........................................................................................................................... 384Glen Anil Finance (Pty) Ltd v Join Liquidators Glen Anil Development Corporation Ltd 1981 (1) SA 171 AD..................................................................................................................... 231Group Areas Development Board v Hurley1961 (1) SA 123 (A).......................................................................... 99Gumede (born Shange) v President of the Republic of South Africa and Others (CCT 50/08) [2008] ZACC 23............................................................................................................. 429

HHall v Millin & Hutton 1915 SR 78............................................................................................................................ 93Hertzfelder’s Trustee v Hertzfelder 1908 TH8.......................................................................................................... 16Heynes Matthew Ltd v Gibson NO 1950(1) SA 13 T............................................................................................ 383Hirschowitz v Moolman 1985 (3) SA 739 (A)....................................................................................................... 141Holland v Holland 1973 (1) SA 897 T....................................................................................................................... 84Hotel De Aar v Jonardon Investments (Edms) Bpk 1972 (2) SA 400 A.............................................................. 123Houtpoort Mining and Estate Syndicate Ltd v Jacobs 1904 TS 108...................................................................... 11

IIn re Schaffer et Uxor 1920 NLR 241........................................................................................................................ 388In re The Body Corporate of Caroline Court 2001 (4) SA 1230 (SCA).............................................................. 514Incorporated Law Society of the Transvaal v Kuyper 1925 TPD 760................................................................... 45Incorporated Law Society v Kantor 1914 TPD 510................................................................................................. 39Incorporated Law Society v Swan 1911 CPD 874................................................................................................... 45

522


Indrieri v Du Preez 1989 (2) SA 721 (C)................................................................................................................ 414Inter Union-Finance Ltd v Dunsterville 1956 (4) SA 280 N................................................................................ 345Iscor Housing Utility Co and Another v Chief Registrar of Deeds and Another 1971 (1) SA 613 (T).......... 313Ivoral Properties (Pty) Ltd v Sheriff of Cape Town & Others 2005 (6) SA 96 (C)............................................ 233

JJacobson’s Trustee v Standard Bank 16 SC 201...................................................................................................... 346Johnson and Another v Registrar of Deeds.............................................................................................................. 84Joubert and Others v Van Rensburg and Others 2001 (1) SA 753...................................................................... 413Joubert NO v Welgemoed Dorpsgebiede (Edms) Bpk......................................................................................... 248

KKain v Kahn 1986 (4) SA 341 (C)............................................................................................................................ 384Kilburn v Estate Kilburn 1931 AD 501................................................................................................................... 315Klerck NO v Registrar of Deeds 1950 (1) SA 626 T.............................................................................................. 394Kmatt Properties (Pty) Ltd v Sandton Square Portion 8 (Pty) Ltd and Another 2007 (5) SA 475 (W)......... 484Kock v Commissioner for Inland Revenue 1954 (3) SA 631 C........................................................................... 394Kotsopoulos v Bilardi 1970 (2) SA 391................................................................................................................... 346Kriel v Terblanche NO and others 2002 (6) SA 132............................................................................................... 416Kruger v Terblanche 1978 (2) TPD 19.................................................................................................................... 451

LLamb Bros v Brenner & Co (1886) 5 EDC 152................................................................................................. 93, 94Leach v Champion Estates Ltd 1956 (3) SA 574 (C)..................................................................................... 179, 188Liebenberg v Liebenberg 1966 (4) SA 147 (O)...................................................................................................... 160Lief v Dettman 1964 (2) SA 252 (A)....................................................................................................................... 346Liquidator Mr Spares (Pty) Ltd v Goldies Motor Supplies (Pty) Ltd 1982 (4) SA 607..................................... 246Lolly v Gilbert (1830) 1 M 434................................................................................................................................... 94Lubbe v Commissioner for Inland Revenue 1962 (2) SA 503 (O).............................................. 179, 182, 188, 394Lubbe v O’Dwyer 1942 WLD 135........................................................................................................................ 15, 85

MMalcolm v Cooper and Others 1974 (4) SA 52 (C).............................................................................................. 415Mapenduka v Ashingtin 1919 AD 343................................................................................................................... 319Martin Martens v Registrar of Deeds (unreported: see report to court No 118 of 1965)................................ 199Mayelane v Ngwenyame and Another Case Number 29241/09......................................................................... 433McCullogh v Fernwood Estate Ltd 1920 A 204..................................................................................................... 414Meintjies v Registrar of Deeds 1915 TPD 288....................................................................................................... 389Michael Blackman (1980) 97 SALJ 379 and C Rosenthal (1982) 99 SALJ 209)................................................ 246Mitchell’s Plain Town Centre Merchants Association v McLeod 1996 (4) SA 159 (A).................................... 198Mocke v Beaufort West Municipality 1939 CPD 135........................................................................................... 130Moll and another v Nedcor Bank Ltd and others [2004] 2 ALL SA 451 (T)..................................................... 250Morrison v Standard Building Society 1932 AD 229.............................................................................................. 98Morse v Estate Edden 1913 CPD 567..................................................................................................................... 188Mouton v Mynwerkers Unie 1977 (1) SA 119 (A)................................................................................................... 39Muller v Pienaar 1968 (3) SA 195 A.......................................................................................................................... 14Myers v Van Heerden and Others 1966 (2) SA 649 C.......................................................................................... 138

523


NNetshituka v Netshituka (426/10) [2011] ZASCA 120......................................................................................... 425

OOgle v Ogle (1910) 31 NLR 87................................................................................................................................. 86Oribel Properties 13 (Pty) Ltd and Another v Blue Dot Properties 271 (Pty) Ltd and Others (12901/08) [2009] [ZAWCHC].......................................................................................... 501

PPietersburg Cold Storage v Cacaburas 1925 TPD 295.......................................................................................... 303 RR v Levy 1929 AD 312................................................................................................................................................. 14R v Siegel & Frenkel 1943 SR 13................................................................................................................................ 93Rainbow Diamonds Edms Bpk en Andere v Suid-Afrikaanse Nasionale Lewensassuransie-maatskappy 1984 (3) SA 1 (A).............................................................................. 329Rand Trading Co Ltd v Lewkewitsch 1908 TS 108............................................................................................... 414Reeskens v Registrar of Deeds 1964 (4) SA 369 (N)............................................................................................. 316Roads Contractor Company Limited v AE/GAMS Engineering Company Namibia (Pty) Ltd.............................................................................................................. 107Rodgers v Phillips 1985 (3) 183 ECD...................................................................................................................... 142Rosenburg v Dry’s Executors and Others 1911 AD 679......................................................................................... 15Roseparkadmin CC and Others v The Registrar of Deeds (Western Cape High Court Case no. 5522/2011 dated 17 May 2011)................................................................ 501Rousalis 1980 (3) SA 446 (C)..................................................................................................................................... 88

SSacca Ltd v Olivier 1954 (3) SA 136 (T)................................................................................................................... 94Secretary for Inland Revenue v Hartzenberg (1966 (1) SA 405 (AD)................................................................ 403Secretary for Inland Revenue v Roadknight and Another 1974 (1) SA 253 A.................................................. 395Segal and another v Segal and others 1977 (3) SA 247 (C).................................................................................. 346Semer v Retief and Berman 1948 (1) SA 182 (C).................................................................................................. 415Sheriff Kuilsriver v Registrar of Deeds Cape Town 2011..................................................................................... 349Shurrie v Sheriff for the Supreme Court, Wynberg and Others 1995 (4) SA 709 (C)...................................... 246Simplex (Pty) Ltd v Van der Merwe and Others NNO 1996 (1) SA 111 (W)................................................... 409Singh v Singh (1983) (1) SA 781 (C)........................................................................................................................ 87Smit NO v Die Meester 1959 (4) SA 13 (T)............................................................................................................. 89Smith v Farrely’s Trustee 1904 TS 949.................................................................................................................... 317Smith v Smith 1937 WDL 126................................................................................................................................... 86Smith v Weston 1961 (1) SA 275 (W)....................................................................................................................... 51Smith’s Estate v Follett 1942 AD 364....................................................................................................................... 326Solomon v Registrar of Deeds, 1944 CPD 319...................................................................................................... 318Soupionas v Soupionas 1983 (3) SA 757 (T)........................................................................................................... 87South Africa’s National Roads Agency Limited v Chief Registrar of Deeds (Case No. 9147/2009)............... 377South African Permanent Building Society v Levy 1959 (1) SA 228 T.............................................................. 249SP and C Catering Investments (Pty) Limited v The Body Corporate of Waterfront Gauteng and 17 Others (Case No. 84 of 2009).................................................................................. 509

524


SP and C Catering Investments (Pty) Ltd v Body Corporate of Waterfront Mews and Others 84/09 [2009] ZASCA 162.............................................................................508, 509 Standard Bank of South Africa Ltd v Hunkydory Investments 188 (Pty) Ltd and Others Case No. 154/27/08.............................................................................................................. 326Suid-Afrikaanse Spoorweë v Registrateur van Aktes 1919 NPD 66................................................................... 376Syfrets Bank Limited & Others v Sheriff of the Supreme Court & Others 1993 (3) SA 671 (T)..................... 233

TTimm v Kay 1954 (4) SA 585 (T)............................................................................................................................ 251Titty’s Bar and Bottle Store v ABC Garage and Others 1974 (4) SA 362 T................................................. 125, 280Total South Africa (Pty) Ltd v Xypteras 1970 (1) SA 592 T................................................................................. 384Transvaal Land Bank v The Registrar of Deeds 1907 TS 759................................................................................. 45Trust Bank of SA Ltd v Standard Bank of SA 1968 (3) SA 166 (A)..................................................................... 347

VVan der Merwe v Registrateur van Aktes NO 1975 (4) SA 636 (T)....................................................................... 89Van der Merwe v Van der Merwe en Andere 2000 (2) SA 516 C................................................................ 409, 416Van der Merwe v Van Wyk No 1921 EDL 298........................................................................................ 68, 139, 311Van der Westhuizen v Seide 1957 (4) SA 360 (SWA)............................................................................................. 86Van Tonder v Van der Merwe 1993 (2) SA 552 (W)............................................................................................. 251Van Vuuren v Registrar of Deeds 1907 TS 289...................................................................................................... 231Venter v Naude NO 1951 (1) SA 156 (O)................................................................................................................. 94

WWard NO v Lockhat Ltd 1928 AD 279...................................................................................................................... 91Wasserman v Sackstein NO 1980 (2) SA 536 (O).................................................................................................. 180Watermeyer v Kerdel’s Trustees (1834) 3 M 424...................................................................................................... 94Westraad NO v Burger (5226/06) [2007] ZAFSHC 34......................................................................................... 450Willoughby’s Consolidated Co Ltd v Copthall Stores 1913 AD 267................................................................... 123

525


TABLE OF ACTSAAbolition of Racially Based Land Measures Act, 108 of 1991.............................................................................. 372Accession to the Convention Abolishing the Requirements of Legalisation of Foreign Documents, GN 773 of 1995....................................................................................... 110Administration Amendment Act, 9 of 1929.......................................................................................................... 431Administration of Estates Act, 24 of 1913 190Administration of Estates Act, 66 of 1965................................................................................... 43, 88,92, 157, 158, 164, 165, 166, 167, 169, 173, 177, 178, 180, 181, 189, 249, 268, 285, 286, 288, 339, 345, 383, 390, 409, 411, 454Advertising on Roads and Ribbon Development Act, 21 of 1940................ 72, 195, 207, 212, 214, 257, 258, 455, 471,Agricultural Credit Act, 28 of 1966......................................................................................................................... 339Agricultural Development Bank Act, 15 of 2002.................................................................................................. 253Agricultural Holdings (Transvaal) Registration Act, 22 of 1919.................................................................. 198, 448Alienation of Land Act, 68 of 1981........................ 116, 163, 178, 229, 232, 291, 414, 416, 439, 441, 443,444, 445Aliens Act, 1 of 1937................................................................................................................................................... 96Aliens Control Act, 96 of 1991............................................................................................................................. 96, 97Attorneys Act, 33 of 1979............................................................................................................................................ 39Attorneys’ Admission Amendment and Legal Practitioners Fidelity Fund Act, 19 of 1941.................................................................................................................................. 409Aviation Act, 74 of 1962........................................................................................................................................... 428

BBlack Administration Act, 38 of 1927.................................................................................................... 166, 167, 425Black Communities Development Act, 4 of 1984...................................................................... 199, 363, 364, 365, 372Business Names Act, 27 of 1960................................................................................................................................ 53

CChildren’s Act, 38 of 2005................................................................................................................................................. 180Civil Union Act, 17 of 2006............................................................................................................ 63, 84,95, 420, 423Close Corporations Act, 69 of 1984.......................................................................................................................... 55Collective Investment Schemes Control Act, 45 of 2002....................................................................................... 346Companies Act, 61 of 1973..................................................... 254, 247, 248, 255, 283, 413, 514, 98, 99, 239, 243, 541Companies Act, 71 of 2008........................................................................................................................................ 53, 96, 70, 96, 98, 239, 243, 255, 256, 305Convention on the International Recognition of Rights in Aircraft Act, 59 of 1993........................................... 317Customary Law of Succession Act, 11 of 2009...................................................................................................... 170Customary Marriages Act,120 of 1998................................... 95, 171, 266, 277, 426, 427, 428, 429, 431, 434, 435

DDeeds Registries Act, 47 of 1937........................................................... 8, 13, 74, 75, 88, 95,99, 121, 122, 124, 138, 151, 157, 173, 177, 187, 188, 196, 218, 223, 233, 237, 247, 256, 262, 264, 265, 267, 268, 269, 270, 272, 274, 275, 277, 279, 280, 282, 289, 292, 299, 301, 316, 317, 338, 341, 342, 346, 354, 364, 365, 366, 368, 369, 370, 371, 372, 391, 394, 397, 412, 413, 420, 433, 441, 453, 454, 455, 465, 475, 485, 486, 493, 496, 505, 510, 513 Deeds Registries Amendment Act, 27 of 1982........................................................................................................ 41Deeds Registries Amendment Act, 9 of 2003........................................................................................................ 413Defence Act, 44 of 1957.......................................................................................................................................... 111Development Facilitation Act, 67 of 1995 .............................................................................................................. 13

526


Divorce Act, 70 of 1979............................................................................................................................................... 86Domicile Act , 3 of 1992............................................................................................................................................. 421

EEstate Duty Act, 45 of 1955...................................................................................................................................... 396Exchange Control Amnesty and Amendment of Taxation Laws Act, 112 of 2003............................................. 403Expropriation Act, 63 of 1975.................................................................................................................................. 456Extension of Security of Tenure Act, 62 of 1997.................................................................................................... 397

FFormalities in Regard to Lease Contracts over Land Act, 18 of 1969.................................................................. 383

GGeneral Law Amendment Act, 101 of 1969............................................................................................................ 141General Law Fourth Amendment Act, 132 of 1993................................................................................................ 83

HHigh Court Act, 40 of 2006....................................................................................................................................... 249

IImmigration Act, 13 of 2002.............................................................................................................................. 97, 390Insolvency Act, 24 of 1936............................................................... 93, 180, 226, 227, 229, 233, 236, 278, 315, 489Insolvency Amendment Act, 122 of 1993........................................................................................................ 93, 234Inspection of the Financial Institutions Act, 38 of 1984....................................................................................... 409International Recognition in Rights in Aircraft Act, 59 of 1993.......................................................................... 313Intestate Succession Act, 13 of 1934......................................................................................................................... 167Intestate Succession Act, 81 of 1987....................................................................... 166, 167, 171, 173, 175, 184, 188

JJustices of the Peace and Commissioners of Oaths Act, 6 of 1963........................................................................ 110

KKwaZulu Legislative Assembly Act, 16 of 1985..................................................................................................... 427KwaZulu-Natal Planning and Development Act, 6 of 2008................................................................................. 205KwaZulu-Natal Roads Act, 4 of 2001...................................................................................................................... 205

LLand and Agricultural Development Bank Act, 15 of 2002................................................................................. 253Land Reform (Labour Tenants) Act, 3 of 1996...................................................................................................... 397Land Survey Act, 8 of 1997....................................................................................................................................... 361Land Titles Adjustment Act, 111 of 1993....................................................................................................... 298, 459Legal Succession to The South African Transport Services Act, 9 of 1989.................................................. 216, 451Less Formal Township Establishment Act, 113 of 1991........................................................................................ 367Local Government Ordinance, 17 of 1939............................................................................................................. 359Local Government Transition Act, 209 of 1993..................................................................................................... 448Local Government Municipal Systems Act, 32 of 2000...............................................................................117, 287

527


MMagistrate’s Court Act, 32 of 1944.......................................................................................................................... 249Marriage Act, 25 of 1961................................................................................................... 95, 389, 421, 427, 435, 437Marriage and Matrimonial Property Law Amendment Act, 3 of 1988....................................................... 425, 426Matrimonial Property Act, 88 of 1984............................................................................................ 14, 15, 83, 84, 87, 95, 258, 259, 275, 277, 390, 421, 425, 426, 428, 430, 431, 432, 436, 437 Matrimonial Property Law Amendment Act, 3 of 1988............................................................................... 425, 426Mental Health Care Act, 7 of 2002............................................................................................................................ 90Mineral and Petroleum Resources Development Act, 28 of 2002............................................................................ 151Minerals Act, 50 of 1991........................................................................................................................................... 215Mining Titles Registration Act, 16 of 1967............................................................................................................. 151Mining Titles Registration Amendment Act, 24 of 2003...................................................................................... 151Municipal Property Rates Act, 6 of 2004.............................................................................................................. 474Municipal Systems Act, 32 of 2000........................................................................................................ 177, 287, 381

NNational Credit Act, 34 of 2005....................................................................................................................... 307, 445National Roads Act, 7 of 1998.......................................................................................................................... 195, 197National States Citizenship Act, 26 of 1970........................................................................................................... 428National Water Act, 36 of 1998................................................................................................................................ 318Northern Cape Planning and Development Act, 7 of 1998......................................................................... 204, 205

PProvincial Powers Extension Act, 10 of 1944......................................................................................................... 217Provision of Land and Assistance Act, 126 of 1993.............................................................................................. 397

RRecognition of Customary Marriages Act, 120 of 1998....................... 171, 266, 277, 426, 427, 428, 429, 431, 434, 435Reform of the Customary Law of Succession Act, 11 of 2009.............................................................................. 170Registration of Births and Deaths Act, 51 of 1992........................................................................................ 283, 284Removal of Restrictions Act, 84 of 1967........................................................................................ 130, 133, 136, 280Restitution of Land Rights Act, 22 of 1994............................................................................................................ 397Rules Board for Courts of Law Act, 107 of 1985................................................................................................... 193

SSectional Titles Act, 95 of 1986............................................................................................... 93, 420, 467, 509, 515Sectional Titles Amendment Act, 11 of 2010........................................................................................................ 507Security by Means of Movable Property Act, 57 of 1993...................................................................................... 316Share Blocks Control Act, 59 of 1980.................................................................................................... 515, 516, 517Ship Registration Act,58 of 1998........................................................................................................................... 317South African Citizens in Antarctica Act, 55 of 1962........................................................................................... 111South African Transport Services Act,9 of 1989........................................................................................... 216, 451Stamp Duty Act, 77 of 1968................................................................................................................................... 385Subdivision of Agricultural Land Act, 70 of 1970................................................. 72, 127, 138, 147, 188, 195, 198, 205, 257, 258, 276, 384, 447, 449, 450, 454Subdivision of Agricultural Land Act Repeal Act, 64 of 1998.............................................................................. 447

528


TTaxation Laws Amendment Act, 30 of 2002.......................................................................................................... 401The South African National Roads Agency Limited and National Roads Act, 7 of 1998 ....................... 195, 197Transfer and Distribution of Certain State Land Act, 119 of 1993 .................................................................... 398Transfer Duty Act, 40 of 1949......................................... 51, 143, 147, 176, 181, 288, 386, 393, 442, 486, 494, 508Transkei Marriage Act, 21 of 1978........................................................................................................................... 427Trust Moneys Protection Act, 34 of 1934 .............................................................................................................. 409Trust Property Control Act, 57 of 1988 ..................................................................................... 57, 98, 409, 413, 415

UUpgrading of Land Tenure Rights Act, 112 of 1991 .............................................................................. 15, 336, 372

VValue Added Tax Act, 89 of 1991 ........................................................................................................................... 396

WWater Act, 54 of 1956....................................................................................................................................... 127, 457Wills Act, 7 of 1953 .......................................................................................................................................... 184, 188

529


ab intestatio................................................. 162, 163, 169accrual system..................................................... 391, 432accrue........................................................... 184, 228, 385adiate.................................................................... 159, 161administrator............................................. 186, 265, 360, 361, 411, 455, 478, 479affidavit(s)..................................................... 46, 112, 114, 160, 251, 292, 297, 372, 427, 490, 492, 493, 495, 497, 515, 516, 517, ancillary rights................................................. 23, 26, 27, 28, 29, 31, 153, 211, 213, 216, 364Antarctica.................................................................... 111antenuptial contracts................ 227, 387, 389, 390, 420architect...................................................... 469, 486, 491, 492, 493, 494, 495, 496, 498, 504attestation.................................................................... 507

beneficiary.................................................. 123, 131, 155, 158, 159, 160, 162, 187, 344, 394, 453bequeathed.................................................................. 454boundaries.................................................. 465, 490, 501business rescue....................................... 69, 70, 240, 244

causa...................................................................... 5, 9, 18, 57, 78, 81, 86, 94, 115, 116, 117, 150, 157, 160, 163, 164, 165, 168, 170, 173, 175, 176, 180, 189, 231, 252, 264, 274, 305, 306, 307, 315, 344, 345, 346, 347, 398, 410, 411, 417, 460, 471, 485, 516, 517causae............................................ 13, 115, 118, 160, 344caveat.................................................. 367, 368, 370, 371, 375, 376, 381, 441, 459, 461, 462, 463, 465, 468, 478ceded.......................... 479, 485, 487, 497, 500, 508, 509cedent........................................................42, 260, 508certificate of cancellation........................................... 464certificate of registered sectional title.................... 470, 492, 493, 494, 495, 506, 509certificate of title.............................................. 17, 20, 21, 41, 42, 45, 107, 141, 203, 295, 296, 297, 298, 300, 301, 303, 304cession(s).......................................................... 37, 38, 49, 51, 124, 177, 291, 304, 330, 332, 343, 344, 345, 346, 347, 385, 386, 390, 480, 481, 484, 485, 487, 490, 499, 500, 502, 508, cessionary............................................ 344, 346, 499, 502clearance certificate.................................. 474, 475, 486, 492, 495, 501, 504, 511, 515, 516common property..................................... 154, 407, 469,

470, 472, 476, 481, 482, 483, 484, 485, 486, 487, 488, 490, 491, 493, 495, 496, 497, 498, 499, 500, 501, 502, 504, 505, 506, 507, 508, 509, 510, 511, 513, 514conditional clause............................................ 22, 23, 41,42, 68, 122, 146, 170, 472contiguous .......................................................... 492, 495contingent usufruct........................... 147, 148, 322, 458contractual capacity......................................... 18, 43, 59, 83, 84, 85, 88, 95, 177, 180, 266, 314, 388, 429, 430, 431creditors...................................................... 431, 436, 467curator..... 62, 63,82, 90, 91, 92, 104, 118, 180, 186, 257customary................................................... 266, 277, 389, 419, 425, 426, 427, 429, 430, 431, 432

de duobus vel pluribus reis debendi................ 258, 259, 277, 339, 340, 343de novo........................................................ 504, 508, 509deed of transfer.......................................... 106, 115, 116, 117, 122, 123, 127, 128, 132, 138, 139, 141, 142, 143, 145, 148, 153, 154, 155, 157, 160, 161, 170, 173, 175, 185, 189, 197, 205, 209, 211, 213, 215, 217, 218, 220, 229, 230, 231, 251, 252, 253, 260, 267, 268, 270, 272, 274, 276, 278, 279, 282, 286, 287, 288, 292, 300, 304, 321, 322, 324, 341, 344, 353, 356, 357, 358, 369, 371, 372, 373, 375, 377, 379, 380, 381, 410, 411, 461, 471, 472, 496, 503, 511, 515delineate(ed)................................ 486,498, 479, 485, 490descendants................................................ 161, 163, 167, 169, 172, 182, 183, 184, 185, 189 deviation...................................................................... 495devolve........................................................ 148, 167, 171, 183, 184, 185, 187, 188, 189, 285, 452disposal........................................................ 486, 493, 511divested........................................................ 32, 157, 160, 162, 233, 237, 238, 252, 363, 507divorce agreement ................ 85, 86, 233, 273, 274, 474doctrine................................. 15, 131, 135, 136, 250, 421dominium.................................................................... 471donated/donation/donor.................................. 13, 49, 51, 96, 116, 117, 153, 155, 163, 164, 179, 389, 390, 400draft sectional plan... 467, 491, 492, 493, 494, 496, 503

equal shares............................................. 71, 73, 182, 222erf................................................................ 259, 267, 269, 271, 272, 274, 276, 278, 279, 280, 281, 282, 287, 288, 292, 299, 300, 301, 302, 333, 339, 341, 349, 351, 353, 354, 355, 356, 257, 358, 362, 363, 369, 373, 395, 406, 407, 429, 443, 444, 465, 466, 495, 514 examine............. 4, 7, 40, 41, 42, 414, 177, 181,313, 472

WORD INDEX

530


examiners..................................................................... 472excision................................................................ 463, 464exclusive use areas..................................... 468, 469, 470, 479, 480, 481, 482, 486, 487, 489, 490,497, 498, 499, 500, 501, 502, 505, 506, 510, 511, 512, 513executorship...................................................... 64, 78, 79,157, 175, 189, 190, 191, 192, 194, 269, 286, 287, 288, 347exemption of transfer duty......................................... 162expiry........................................................... 201, 234, 249, 298, 324, 330, 440, 473, 499, 502, 507expropriation................................................... 13, 14, 16, 27, 28, 29, 263, 264, 312, 375, 376, 377, 379, 397,456extending clause.......................................................... 472

fideicommissa............................... 50, 148, 149, 150, 325fideicommissary................................. 325, 326, 345, 451fideicommissum................................. 451, 452, 461, 462fiduciarius...... 49, 68, 180, 258, 340, 345, 384, 451, 452fiduciary........................................................................ 452forfeiture....................................................................... 489

guarantees.......................................................... 9, 39, 351

habitatio..................................... 384, 454, 458, 481, 488heirs .................................................................. 19, 32, 38, 49, 50, 132, 144, 148, 149, 150, 151, 159, 161, 162, 168, 169, 170, 171, 172, 177, 178, 179, 180, 181, 183, 184, 185, 187, 188, 189, 219, 222, 323, 325, 326, 345, 399, 451, 452, 456, 472holding................................................................ 472, 478Home Owners Association...................... 136, 143, 144, 145, 206, 281, 323, 324, 472

in esse................................................................... 149, 326in rem suam................................................................. 488incisions............................................................... 463, 465inheritance................................................................... 474insolvent............................................................ 16, 43, 65, 66, 78, 80, 93, 103, 104, 145, 155, 165, 180, 186, 187, 222,226, 227, 288, 229, 230, 231, 231, 232, 233, 234, 235, 236, 237, 238, 239, 253, 257, 278, 279, 289, 290, 324, 339, 391, 441, 442, 462inter vivos........................................... 396, 410, 411, 417inter vivos trust........................................................... 417intestate........................................................ 451, 456, 474intestate succession..................................... 49, 162, 163, 166, 167, 169, 170, 171, 172, 173, 175, 178, 182,183, 184, 185, 188, 189, 345, 451, 456ius accrescendi.................................................... 146, 147

joint estate................................................... 154, 155, 157,

158, 160, 161, 162, 164, 165, 168, 170, 173, 174, 175, 176, 179, 181, 189, 232, 234, 258, 265, 267, 272, 275, 276, 277, 287, 344, 400, 433, 454joint ownership.................................... 70, 221, 296, 395joint will....................................................... 398, 399, 452juristic person............................................ 109, 132, 186, 197, 256, 261, 262, 405, 445

lacuna............................................................ 42, 228, 413land surveyor...................... 486, 491, 492, 493, 495, 496legal guardian................................................................. 88legatee......................... 159, 179, 180, 186, 186, 393, 400legatees........... 49, 50, 177, 178, 179, 180, 187, 188, 219levirate.......................................................................... 171limited legal capacity.................................................. 109liquidation................................................. 116, 160, 161, 163, 168, 169, 176, 182, 189, 191, 239, 240, 241, 243, 244, 245, 248, 253, 285, 287, 389, 345, 393, 400liquidation and distribution account....................... 400liquidators...................................................... 43, 231, 233locus standi.................................................................. 354

mandant....................................................................... 112marital status..... 178, 258, 260, 264, 266, 273, 434, 472massed estate.............................................. 158, 159, 160, 170, 287, 394, 399, 400, 401merger........................................................................... 512mineral rights...... 25, 133, 151, 152, 153, 321, 322, 468minor................................................................. 49, 59, 60, 77, 78, 88, 89, 90, 104, 108, 149, 180, 184, 185, 219, 224monetary value.................................................... 172, 184mortgage bond(s)....................................... 196, 202, 222, 237, 250, 251, 257, 258, 259, 263, 265, 267, 268, 270, 271, 283, 287, 288, 297, 303, 304, 305, 304, 305, 307, 308, 309, 210, 312, 313, 315, 316, 325, 326, 327, 329, 330, 331, 332, 334, 335, 336, 337, 340, 341, 342, 344, 345, 346, 347, 412, 441, 461, 464, 466, 469, 470, 480, 487, 488, 489, 490, 491, 493, 495, 496, 502, 504, 505, 506, 507, 510, 512, 513, 514, 515, 516 mortgagees......... 108, 197, 259, 302, 306, 334, 340, 506mortgagor......................................................... 42, 46, 75, 76, 77, 78, 79, 80, 81, 82, 132, 259, 265, 267, 288, 304, 259, 270, 271, 311, 314, 383, 388, 389, 390, 406, 408mortis causa trust............................. 57, 81, 94, 176, 180mutatis mutandis....................................... 186, 204, 214, 235, 259, 273, 275, 297, 302, 326, 327, 332, 342, 347, 353, 390, 420, 421, 456, 457, 472, 486, 493, 502, 503, 507, 511

natural person.................................................. 19, 42, 43, 57, 146, 165, 260, 261, 282, 283, 314, 315, 401, 402, 403

531


nemo plus iuris ad alium transferre potest quam ipse habaret............................................ 147notarial bonds............................................ 227, 258, 291, 303, 313. 314, 317, 329, 413notarial tie agreement........................................ 496, 503notaries protocol......................................................... 508

objection............................................................. 7, 91, 92, 109, 112, 134, 154, 163, 164, 165, 175, 192, 225, 291, 330, 345, 353, 359, 360, 385, 388, 469, 477, 503

partition........ 70, 195, 218, 219, 220, 222, 461, 491, 513perpetuity............................................................. 125, 126personal servitude..................................... 130, 131, 132, 136, 139, 142, 146, 148, 149, 161, 177, 181, 211, 212, 230, 231, 232, 248, 250, 252, 279, 280, 281, 282, 290, 303, 305, 310, 311,312, 322, 340, 406, 407, 481 portion of land................................................. 19, 20, 23, 70, 73, 200, 213, 216, 358, 377, 384, 397, 398, 460praedial servitude..................................... 125, 126, 127, 129, 135, 138, 139, 149, 207, 219, 220preparation clause...................................... 304, 494, 505preparer............................................................... 8, 34, 39, 40, 41, 42, 43, 44, 45, 46, 74, 75, 100, 101, 107, 108, 109, 141, 168prima facie................................................................... 423prospecting rights....................................................... 152proviso........ 194, 229, 266, 290, 323, 453, 468, 475, 495

rates clearance............................ 495, 504, 511, 515, 516ratified................................... 86, 107, 164, 388, 414, 416re et verbis.................................................................... 146redistribution............................................ 160, 161, 162, 169, 170, 174, 177,178, 179, 180, 181, 182, 186, 188, 226, 268, 273, 393, 394, 399, 456redistribution agreement........................................... 456renounce.............................. 184, 185, 236, 258, 277, 343representatives........................................ 43, 69, 222, 270repudiate............................................. 159, 161, 231, 246repudiation.......................................... 159, 161, 169, 184respondent................................................. 250, 251, 403, 426, 427, 433, 484restrictive condition.................................. 133, 136, 280, 281, 326, 471, 472reversionary right....................................... 23, 144, 145, 146, 279, 309, 310, 323, 324, 325right of way.................................................. 457, 476, 481rights of extension..... 487, 499, 503, 509, 512, 513, 514

SARS....... 273, 396, 399, 400, 405, 406, 407, 408, 415, 416

sectional plans.................................... 477, 478, 480, 490sectional title scheme................................ 490, 492, 493, 495, 499, 509, 511, 513, 514, 515, 516Sectional Title Scheme............................................... 516sectional title unit.............................................. 471, 478share in land...................................................... 19, 70, 72, 73, 212, 214, 219, 298, 339, 451sold in execution................................................. 462, 489special power of attorney................................... 515, 516special resolution............................................... 516, 517stipulation alteri.......................................... 136, 281, 476subdivision of land...................................... 70, 136, 195, 203, 204, 206, 208, 201, 218, 22, 281, 451, 460, 471successors in title........................................ 472, 502, 504sui juris................................................................. 109, 149

tenement...................................................................... 211tenements .................................. 125, 126, 129, 130, 138testate........................................................... 160, 161, 162, 170, 184, 185, 188, 189, 345, 474testator.............................................................. 49, 57, 81, 150, 154, 158, 159, 160, 161, 170, 178, 184, 185, 187, 188, 189, 394, 401, 451, 452, 457title adjustment commissioner......................... 459, 400transfer duty exemption certificate........................... 508trust...................................................................... 3, 35, 38, 42, 44, 45, 57, 78, 81, 94, 98, 103, 158, 176, 180, 200, 270, 282, 305, 346, 347, 362, 396, 401, 409, 410, 411, 412, 413, 414, 415, 416, 417, 448, 454, 461, 462 trust property................................................. 57, 98, 176, 396, 409, 413, 414, 415, 416, 417trustees....... 417, 478, 479, 490, 491, 492, 493, 511, 513

ukungena...................................................................... 171Ukuvusa........................................................................ 171Ukuzalela...................................................................... 171unilaterally.......................................... 388, 485, 502, 508usufruct........................................................................ 512usufructuaries.............................................................. 147usufructuary............................................... 147, 148, 181, 282, 290, 305, 345, 384, 400, 471

VAT................................................................ 51, 162, 168, 169, 176, 182, 288, 396, 398, 400, 401

witnesses...................................................................... 505

532



Section B

Relevant Chief Registrar’s

Circulars


Section B

This section contains the Chief Registrar’s Circularswhich are often referred to in the contents of this bookand which are relevant to the practice of conveyancing.

These circulars have, with the permission of theChief Registrar of Deeds, been quoted in the language

in which they were originally issued.

i


TABLE OF CONTENTS

CHIEF REGISTRAR’S CIRCULARS....................................................................................................................... 1

1. CHIEF REGISTRAR’S CIRCULAR NO 8 OF 1983............................................................................... 1 AMENDMENT OF REGULATIONS: DEEDS REGISTRIES ACT NO 47 OF 1937 AND SECTIONAL TITLES ACT NO 66 OF 1971............................................................................................. 1

2. CHIEF REGISTRAR’S CIRCULAR NO 5 OF 1986....................................................................................... 6 SUBDIVISION OF AGRICULTURAL LAND ACT NO 70 OF 1970: APPLICATION OF SECTIONS 3(b), 3(c) AND 6(1)......................................................................................................................... 6

3. CHIEF REGISTRARS CIRCULAR NO 21 OF 1990...................................................................................... 7 SECTION 14 OF ACT 47 OF 1937...................................................................................................................... 7

4. HOOFREGISTRATEURS OMSENDBRIEF NO 2 VAN 1993..................................................................... 8 BESPOEDIGING EN HERSTEL VAN AKTES.................................................................................................. 8

5. HOOFREGISTRATEURSOMSENDBRIEF NO 3 VAN 1993....................................................................... 9 DEELTITELS: WYSIGING VAN BESTUURS- EN GEDRAGSREëLS............................................................ 9

6. CHIEF REGISTRAR CIRCULAR NO 5 OF 1993......................................................................................... 11 RATES CLEARANCE: ESTABLISHMENT OF A BODY CORPORATE: SECTION 36(1) READ WITH SECTION 15B OF THE SECTIONAL TITLES ACT NO 95 OF 1986.................................11

7. CHIEF REGISTRAR’S CIRCULAR NO 3 OF 1994 ..................................................................................... 12 AMENDMENT IN TERMS OF SECTION 4(1)(b) OF THE DEEDS REGISTRIES ACT, 1937 (ACT 47/1937) OF AN ERROR IN THE VESTING CLAUSE OF A DEED................................................ 12

8. CHIEF REGISTRARS’ CIRCULAR NO 5 OF 1994..................................................................................... 14 MATRIMONIAL PROPERTY ACT NO 88 OF 1984..................................................................................... 14

9. CHIEF REGISTRAR’S CIRCULAR NO 12 OF 1994.................................................................................. 20 PROCEDURE TO IMPLEMENT THE CATEGORY 1 BUSINESS ACCOUNT IN THE DEEDS REGISTRIES..................................................................................................... 20 Annexure A/Aanhangsel A................................................................................................................................. 25

10. CHIEF REGISTRAR’S CIRCULAR NO 15 OF 1994.................................................................................. 26 CATEGORY I BUSINESS ACCOUNT : DEEDS OFFICES........................................................................... 26

11. CHIEF REGISTRAR CIRCULAR NO 2 OF 1995........................................................................................ 29 RESTITUTION OF LAND RIGHTS ACT, 1994 (ACT NO 22 OF 1994).................................................... 29

ii


12. CHIEF REGISTRAR’S CIRCULAR NO 3 OF 1995..................................................................................... 31 REPEAL OF CIRCULARS.................................................................................................................................. 31

13. CHIEF REGISTRAR’S CIRCULAR NO 5 OF 1995..................................................................................... 32 CATEGORY I BUSINESS ACCOUNT: EXEMPTIONS OF PAYMENT OF REGISTRATION FEES.... 32

14. HOOFREGISTRATEURSOMSENDBRIEF NO 11 VAN 1995.................................................................. 34 WET OP DIE BEHEER OOR TRUSTGOED, 1988 (WET 57 VAN 1988).................................................. 34

15. CHIEF REGISTRAR’S CIRCULAR NO 1 OF 1997..................................................................................... 36 RATIONALISATION: INCORPORATION OF RECORDS OF RATIONALISED REGISTRY INTO RECEIVING REGISTRY.................................................................................................... 36

16. CHIEF REGISTRAR’S CIRCULAR NO 2 OF 1997..................................................................................... 38 WITHDRAWAL/AMENDMENT TO CHIEF REGISTRAR’S CIRCULARS............................................. 38

17. CHIEF REGISTRAR CIRCULAR NO 3 OF 1997........................................................................................ 39 AMENDMENT: LODGEMENT COVERS...................................................................................................... 39

18. CHIEF REGISTRAR’S CIRCULAR NO 9 OF 1997..................................................................................... 42 NAME OF CLOSE CORPORATIONS............................................................................................................. 42

19. CHIEF REGISTRAR’S CIRCULAR NO 14 OF 1997................................................................................... 43 SOUTH AFRICAN REVENUE SERVICE ACT NO 34 OF 1997.................................................................. 43

20. CHIEF REGISTRAR’S CIRCULAR NO 18 OF 1997................................................................................... 44 AMENDMENT OF SECTION TITLES ACT 95 OF 1986............................................................................. 44

21. CHIEF REGISTRAR’S CIRCULAR NO 19 OF 1997................................................................................... 55 NATIONAL ARTS COUNCIL ACT, 1997 (ACT 56 OF 1997)...................................................................... 55

22. CHIEF REGISTRAR’S CIRCULAR NO 1 OF 1998..................................................................................... 57 CATEGORY 1 BUSINESS ACCOUNT: EXEMPTIONS FROM PAYMENT OF REGISTRATION FEES.... 57

23. CHIEF REGISTRAR’S CIRCULAR NO 4 OF 1998..................................................................................... 58 ENDORSING OF DEEDS................................................................................................................................... 58

24. CHIEF REGISTRAR’S CIRCULAR NO 5 OF 1998..................................................................................... 59 FINANCIAL AND FISCAL COMMISSION ACT NO 99 OF 1997.............................................................. 59

25. CHIEF REGISTRAR’S CIRCULAR NO 6 OF 1998..................................................................................... 60 MEDICAL, DENTAL AND SUPPLEMENTARY HEALTH SERVICE PROFESSIONS ACT NO 56 OF 1974, AS AMENDED.............................................................................................................. 60

iii


26. CHIEF REGISTRAR’S CIRCULAR NO 7 OF 1998..................................................................................... 62 NATIONAL PARKS ACT NO 57 OF 1976, AS AMENDED BY THE NATIONAL PARKS AMENDMENT ACT NO 70 OF 1997................................................................................................ 62

27. CHIEF REGISTRAR’S CIRCULAR NO 8 OF 1998..................................................................................... 63 NON PROFIT ORGANISATIONS ACT NO 71 OF 1997.............................................................................. 63

28. CHIEF REGISTRAR’S CIRCULAR NO 9 OF 1998..................................................................................... 64 HOUSING ACT NO 107 OF 1997.................................................................................................................... 64

29. CHIEF REGISTRAR’S CIRCULAR NO 10 OF 1998................................................................................... 66 HIGHER EDUCATION ACT NO 101 OF 1997.............................................................................................. 66

30. CHIEF REGISTRAR’S CIRCULAR NO 14 OF 1998................................................................................... 69 WATER SERVICES ACT 108 OF 1997............................................................................................................. 69

31. CHIEF REGISTRAR’S CIRCULAR NO 16 OF 1998................................................................................... 72 SOUTH AFRICAN MARITIME SAFETY AUTHORITY ACT NO 5 OF 1998......................................... 72

32. CHIEF REGISTRAR’S CIRCULAR NO 17 OF 1998.................................................................................. 74 DEEDS BUSINESS ACCOUNT : SCHEDULE OF FEES OF OFFICE........................................................ 74

33. CHIEF REGISTRAR’S CIRCULAR NO. 18 OF 1998.................................................................................. 75 DEEDS REGISTRIES ACT, 1937 (ACT 47 OF 1937): AMENDMENT OF REGULATIONS.................. 75

34. CHIEF REGISTRAR’S CIRCULAR NO 5 OF 1999..................................................................................... 78 THE PHARMACY ACT NO 53 OF 1974, AS AMENDED BY THE PHARMACY AMENDMENT ACT NO 88 OF 1997..................................................................................... 78

35. CHIEF REGISTRAR’S CIRCULAR NO 13 OF 1999................................................................................... 79 NATIONAL FOREST ACT NO 84 OF 1998.................................................................................................... 79

36. CHIEF REGISTRAR’S CIRCULAR NO 15 OF 1999................................................................................... 80 PREVENTION OF ORGANISED CRIME ACT NO 121 OF 1998, AS AMENDED................................. 80

37. CHIEF REGISTRAR’S CIRCULAR NO 1 OF 2000..................................................................................... 84 CHANGES AND AMENDMENTS COMPANY AND CLOSE CORPORATION NUMBERS GOVERNMENT NOTICE NO 1762 OF 1999........................................................................... 84

38. CHIEF REGISTRAR’S CIRCULAR NO 2 OF 2000..................................................................................... 86 ABOLITION OF CERTAIN TITLE CONDITIONS ACT, 1999 (ACT NO 43 OF 1999).......................... 86

iv


39. CHIEF REGISTRAR’S CIRCULAR NO. 3 OF 2000.................................................................................... 88 WORLD HERITAGE CONVENTION ACT, 1999 (ACT NO 49 OF 1999)................................................ 88

40. CHIEF REGISTRAR’S CIRCULAR NO 5 OF 2000..................................................................................... 90 NUCLEAR ENERGY ACT 1999 (ACT NO 46 OF 1999).............................................................................. 90

41. CHIEF REGISTRAR’S CIRCULAR NO 6 OF 2000..................................................................................... 92 NATIONAL NUCLEAR REGULATOR ACT, 1999 (ACT NO 47 OF 1999)............................................... 92

42. CHIEF REGISTRAR’S CIRCULAR NO 7 OF 2000..................................................................................... 94 ARREAR DEBTS: DEEDS REGISTRATION TRADING ACCOUNT DETERMINATION OF TIME PERIOD AFTER WHICH OUTSTANDING DEBTS WILL BE IN ARREARS - REGULATIONS 4A AND 45(8) OF THE DEEDS REGISTRIES ACT, 1937 (ACT 47 OF 1937) AND MATTERS INCIDENTAL THERETO................................................................................................... 94

43. CHIEF REGISTRAR’S CIRCULAR NO 8 OF 2000.................................................................................... 99 ARREAR DEBTS: DEEDS REGISTRATION TRADING ACCOUNT PROCEDURES FOR THE CONTROL OF DEBTORS PURSUANT TO THE COMING INTO OPERATION OF REGULATIONS 4A AND 45(8) OF THE DEEDS REGISTRIES ACT, 1937 (ACT 47 OF 1937).................................................................................................. 99

44. CHIEF REGISTRAR’S CIRCULAR NO 10 OF 2000................................................................................. 109 INDEPENDENT COMMUNICATIONS AUTHORITY OF SOUTH AFRICA ACT 2000 (ACT NO 13 OF 2000)...................................................................................................................................... 109

45. CHIEF REGISTRAR’S CIRCULAR NO 14 OF 2000................................................................................. 111TRANSFER DUTY ACT, 1949 (ACT NO 40 OF 1949)....................................................................................... 111

46. CHIEF REGISTRAR’S CIRCULAR NO 3 OF 2001................................................................................... 112 THE REGISTRATION OF IMMOVABLE PROPERTY IN FAVOUR OF TRUSTEES FOR THE TIME BEING OF TRUSTS: RE JOUBERT AND OTHERS v VAN RENSBURG AND OTHERS................................................................................................................... 112

47. CHIEF REGISTRAR’S CIRCULAR NO 5 OF 2001.................................................................................. 113 DONATIONS TAX / PART VI OF ACT 43 OF 1955.................................................................................... 113

48. CHIEF REGISTRAR’S CIRCULAR NO 8 OF 2001.................................................................................. 114 SOUTH AFRICAN WEATHER SERVICE ACT, 2001 (ACT NO 8 OF 2001)........................................... 114

49. CHIEF REGISTRAR’S CIRCULAR NO 10 OF 2001................................................................................. 116 COMMONAGE SERVITUDES OVER PROPERTIES OWNED BY MUNICIPALITIES....................... 116

v


50. CHIEF REGISTRAR’S CIRCULAR NO 1 OF 2002................................................................................... 119 THE SOUTH AFRICAN NATIONAL ROADS AGENCY LIMITED AND NATIONAL ROADS ACT, 1998 (ACT NO 7 OF 1998)...................................................................................................... 119

51. CHIEF REGISTRAR’S CIRCULAR NO 5 OF 2002................................................................................... 123 TELECOMMUNICATIONS ACT, 1996 (ACT NO 103 OF 1996) AS AMENDED BY THE TELECOMMUNICATIONS AMENDMENT ACT, 2001 (ACT NO 64 OF 2001).................................. 123

52. CHIEF REGISTRAR’S CIRCULAR NO 6 OF 2002................................................................................... 126 CONSENTS IN TERMS OF ACT 70 OF 1970.............................................................................................. 126

53. CHIEF REGISTRAR’S CIRCULAR NO 10 OF 2002................................................................................. 127 SOUTH AFRICAN SCHOOLS ACT NO 84 OF 1996.................................................................................. 127

54. CHIEF REGISTRAR’S CIRCULAR NO 13 OF 2002................................................................................. 129 ESKOM CONVERSION ACT, 2001 (ACT NO 13 OF 2002)...................................................................... 129

55. CHIEF REGISTRAR’S CIRCULAR NO 7 OF 2003................................................................................... 131 DISESTABLISHMENT OF SOUTH AFRICAN HOUSING TRUST LIMITED ACT, 2002 (ACT NO 26 OF 2002)...................................................................................................................................... 131

56. CHIEF REGISTRAR’S CIRCULAR NO 10 OF 2003................................................................................. 133 BLACK ADMINISTRATION ACT, 1927 (ACT NO 38 OF 1927)............................................................. 133

57. CHIEF REGISTRAR’S CIRCULAR NO 12 OF 2003................................................................................. 135 NEW PROCESSES IN OFFICE OF THE REGISTRAR OF COMPANIES AND CLOSE CORPORATIONS................................................................................................................................ 135

58. CHIEF REGISTRAR’S CIRCULAR NO 14 OF 2003................................................................................. 136 LAND AND AGRICULTURAL DEVELOPMENT BANK ACT, 2002 (ACT NO 15 OF 2002)............. 136

59. CHIEF REGISTRAR’S CIRCULAR NO 15 OF 2003................................................................................. 143 COLLECTIVE INVESTMENT SCHEMES CONTROL ACT, 2002 (ACT NO 45 OF 2002)................. 143

60. CHIEF REGISTRAR’S CIRCULAR NO 16 OF 2003................................................................................. 145 BROADCASTING ACT, 1999 (ACT NO 4 OF 1999) AS AMENDED BY THE BROADCASTING AMENDMENT ACT, 2002 (ACT NO 64 OF 2002).................................................... 145

61. CHIEF REGISTRAR’S CIRCULAR NO 18 OF 2003.................................................................................. 147 LODGEMENT OF RATES CLEARANCE CERTIFICATES IN TERMS OF THE AMENDED LOCALGOVERNMENT: MUNICIPAL SYSTEMS ACT, 2000 (ACT NO 32 OF 2000)....................................................................................................................................... 147

vi


62. CHIEF REGISTRAR’S CIRCULAR NO 20 OF 2003................................................................................... 149 GEOSCIENCE ACT, 1993 (ACT NO 100 OF 1993) AS AMENDED BY THE GEOSCIENCE AMENDMENT ACT, 2003 (ACT NO 11 OF 2003)........................................................... 149

63. CHIEF REGISTRAR’S CIRCULAR NO 21 OF 2003................................................................................. 151 COLLECTIVE INVESTMENT SCHEMES CONTROL ACT, 2002 (ACT NO 45 OF 2002).................. 151

64. CHIEF REGISTRAR’S CIRCULAR NO 24 OF 2003................................................................................. 153 DEEDS REGISTRIES ACT, 1937 (ACT NO 47 OF 1937) - AMENDMENT OF REGULATIONS....... 153

65. CHIEF REGISTRAR’S CIRCULAR NO 1 OF 2004................................................................................... 155 AMENDMENT OF SECTION 17 OF THE DEEDS REGISTRIES ACT NO 47 OF 1937 BY THE DEEDS REGISTRIES AMENDMENT ACT NO. 9 OF 2003....................................................... 155

66. CHIEF REGISTRAR’S CIRCULAR NO 4 OF 2004................................................................................... 157 BLACKBOOKING OF HEIRS/LEGATEES INVOLVED IN WAIVER, REPUDIATION OR REDISTRIBUTION AGREEMENTS....................................................................................................... 157

67. CHIEF REGISTRAR’S CIRCULAR NO 6 OF 2004.................................................................................... 158 THE VESTING WITH REGARD TO ASSETS TO BE REGISTERED IN FAVOUR OF A TRUST...................................................................................................................................... 158

68. CHIEF REGISTRAR’S CIRCULAR NO 9 OF 2004.................................................................................... 160 LAWS AMENDED BY SCHEDULE 1 TO THE MINERAL AND PETROLEUM RESOURCES DEVELOPMENT ACT, 2002 (ACT NO. 28 OF 2002) AND THE SCHEDULE TO THE MINING TITLES REGISTRATION AMENDMENT ACT, 2003 (ACT NO. 24 OF 2003)..................................................................................... 160

69. CHIEF REGISTRAR’S CIRCULAR NO 10 OF 2004................................................................................. 161 LODGEMENT OF RATES CLEARANCE CERTIFICATES IN TERMS OF THE LOCAL GOVERNMENT: MUNICIPAL SYSTEMS ACT, 2000 (ACT NO. 32 OF 2000)...................................... 161

70. CHIEF REGISTRAR’S CIRCULAR NO 11 OF 2004................................................................................. 162 MINING TITLES REGISTRATION ACT, 1967 (ACT NO.16 OF 1967), AS AMENDED BY THE MINING TITLES REGISTRATION AMENDMENT ACT, 2003 (ACT NO. 24 OF 2003)........... 162

71. CHIEF REGISTRAR’S CIRCULAR NO 12 OF 2004................................................................................... 166 DEEDS REGISTRIES ACT, 1937 (ACT NO. 47 OF 1937) - AMENDMENT OF REGULATIONS............................................................................................................ 166

72. CHIEF REGISTRAR’S CIRCULAR NO 14 OF 2004................................................................................. 169 LODGING OF RATES CLEARANCE CERTIFICATES............................................................................... 169

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73. CHIEF REGISTRAR’S CIRCULAR NO 17 OF 2004................................................................................. 171 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004 (ACT NO. 10 OF 2004)...................................................................................................................................... 171

74. CHIEF REGISTRAR’S CIRCULAR NO 18 OF 2004................................................................................ 173 MINING TITLES REGISTRATION ACT, 1967 (ACT NO. 16 OF 1967), AS AMENDED BY THE MINING TITLES REGISTRATION AMENDMENT ACT, 2003 (ACT NO. 24 OF 2003)............ 173

75. CHIEF REGISTRAR’S CIRCULAR NO 5 OF 2005................................................................................... 175 ARREAR DEBTS: DEEDS REGISTRATION TRADING ACCOUNT DETERMINATION OF TIME PERIOD AFTER WHICH OUTSTANDING DEBTS WILL BE IN ARREARS - REGULATIONS 4A AND 45(8) OF THE DEEDS REGISTRIES ACT, 1937 (ACT 47 OF 1937)........ 175

76. CHIEF REGISTRAR’S CIRCULAR NO 6 OF 2005................................................................................... 176 ELECTRONIC ISSUING AND FILING OF TRANSFER DUTY RECEIPTS.......................................... 176

77. CHIEF REGISTRAR’S CIRCULAR NO 9 OF 2005.................................................................................... 186 SECTIONAL TITLES ACT, 1986 (ACT NO. 95 OF 1986): AMENDMENTS OF THE REGULATIONS......................................................................................................................................... 186

78. CHIEF REGISTRAR’S CIRCULAR NO 10 OF 2005................................................................................. 189 DEEDS REGISTRIES ACT 1937 (ACT NO.47 OF 1937): AMENDMENT OF REGULATIONS.......... 189

79. CHIEF REGISTRAR’S CIRCULAR NO 11 OF 2005................................................................................. 191 LODGEMENT OF RATES CLEARANCE CERTIFICATES IN TERMS OF THE LOCAL GOVERNMENT: MUNICIPAL SYSTEMS ACT, 2000 (ACT NO.32 OF 2000)........................................ 291

80. CHIEF REGISTRAR’S CIRCULAR NO 1 OF 2006.................................................................................... 192 CROSS-BOUNDARY MUNICIPALITIES LAWS REPEAL AND RELATED MATTERS ACT NO.23 OF 2005...................................................................................................................... 192

81. CHIEF REGISTRAR’S CIRCULAR NO 2 OF 2006................................................................................... 194 LOCAL GOVERNMENT: MUNICIPAL PROPERTY RATES ACT,2004 (ACT NO. 6 OF 2004)......... 194

82. CHIEF REGISTRAR’S CIRCULAR NO 1 OF 2007................................................................................... 196 CIVIL UNION ACT NO. 17 OF 2006............................................................................................................ 196

83. CHIEF REGISTRAR’S CIRCULAR NO 2 OF 2007................................................................................... 198 FURTHER EDUCATION AND TRAINING COLLEGES ACT, 2006 (ACT NO.16 OF 2006).............. 198

84. CHIEF REGISTRAR’S CIRCULAR NO 7 OF 2007................................................................................... 203 NATIONAL HERITAGE RESOURCES ACT, 1999 (ACT NO.25 OF 1999)............................................. 203

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85. CHIEF REGISTRAR’S CIRCULAR NO 10 OF 2007.................................................................................. 208 COMMENCEMENT OF CERTAIN SECTIONS OF THE CHILDREN’S ACT 2005 (ACT NO.38 OF 2005)....................................................................................................................................... 208

86. CHIEF REGISTRAR’S CIRCULAR NO 12 OF 2007................................................................................. 209 CESSION OF BONDS FOR SECURITISATION PURPOSES..................................................................... 209

87. CHIEF REGISTRAR’S CIRCULAR NO 13 OF 2007................................................................................. 211 CHANGE OF NAME OF TRANSNET PENSION FUND IN TERMS OF THE TRANSNET PENSION FUND AMENDMENT ACT, 2007 (ACT NO.6 OF 2007)........................................................ 211

88. CHIEF REGISTRAR’S CIRCULAR NO 1 OF 2008................................................................................... 212 CHILDREN’S ACT, 2005 (ACT NO. 38 OF 2005)........................................................................................ 212

89. CHIEF REGISTRAR’S CIRCULAR NO 2 OF 2008................................................................................... 214 BROADBAND INFRACO ACT, 2007 (ACT NO. 33 OF 2007).................................................................... 214

90. CHIEF REGISTRAR’S CIRCULAR NO 4 OF 2008.................................................................................... 217 ASTRONOMY GEOGRAPHIC ADVANTAGE ACT, 2008 (ACT NO. 21 OF 2007).............................. 217

91. CHIEF REGISTRAR’S CIRCULAR NO 7 OF 2008................................................................................... 219 AGRICULTURAL DEBT MANAGEMENT REPEAL ACT, 2008 (ACT NO. 15 OF 2008)).................. 219

92. CHIEF REGISTRAR’S CIRCULAR NO 8 OF 2008................................................................................... 220 LODGEMENT OF RATES CLEARANCE CERTIFICATES IN TERMS OF THE LOCAL GOVERNMENT: MUNICIPAL SYSTEMS ACT, 2000 (ACT NO. 32 OF 2000)...................................... 220

93. CHIEF REGISTRAR’S CIRCULAR NO 9 OF 2008................................................................................... 221 CERTIFICATES IN TERMS OF ITEM 28(1) OF SCHEDULE 6 OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996 (ACT NO. 108 OF 1996)............................................. 221

94. CHIEF REGISTRAR’S CIRCULAR NO 10 OF 2008.................................................................................. 224 MENTAL HEALTH CARE ACT, 2002 (ACT NO. 17 OF 2002)................................................................... 224

95. CHIEF REGISTRAR’S CIRCULAR NO 1 OF 2009................................................................................... 227 APPLICATION OF SECTIONS 45, 45bis, 45bis(1A) OF THE DEEDS REGISTRIES ACT, 1937 (ACT NO. 47 OF 1937) ON EXCLUSIVE USE AREAS AND REAL RIGHTS OF EXTENSION......................................................................................................... 227

96. CHIEF REGISTRAR’S CIRCULAR NO 2 OF 2009................................................................................... 228 MECHANISATION: DATA CAPTURING AND SCANNING OF REGISTERED DEEDS AND DOCUMENTS .............................................................................................. 228

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97. CHIEF REGISTRAR’S CIRCULAR NO 4 OF 2009................................................................................... 234 THE RECOGNITION OF CUSTOMARY MARRIAGES ACT, 1998 (ACT NO. 120 OF 1998) ............ 234

98. CHIEF REGISTRAR’S CIRCULAR NO. 5 OF 2009................................................................................... 238 STAMP DUTIES ACT, 1968 (ACT NO. 77 OF 1968), AS REPEALED BY THE REVENUE LAWS AMENDMENT ACT, 2008 (ACT NO. 60 OF 2008)..................................................... 238

99. CHIEF REGISTRAR’S CIRCULAR NO.6 OF 2009................................................................................... 239 LEGAL SUCCESSION TO THE SOUTH AFRICAN TRANSPORT SERVICES ACT, 1989 (ACT NO. 9 OF 1989)................................................................................................ 239

100. CHIEF REGISTRAR’S CIRCULAR NO.7 OF 2009.................................................................................. 240 REPEAL OF THE BIBLE SOCIETY OF SOUTH AFRICA ACT, 1970 (ACT NO.15 OF 1970)............ 240

101. CHIEF REGISTRAR’S CIRCULAR NO. 9 OF 2009.................................................................................. 242 ALTERATIONS AND ERRORS IN TRANSFER DUTY RECEIPTS.......................................................... 242

102. CHIEF REGISTRAR’S CIRCULAR NO. 10 OF 2009................................................................................ 244 NATIONAL ENVIRONMENTAL MANAGEMENT: PROTECTED AREAS ACT, 2003 (ACT NO. 57 OF 2003).......................................................................... 244

103. CHIEF REGISTRAR’S CIRCULAR NO. 1 OF 2010................................................................................. 247 CANCELLATION OF REGISTRATION OF A LOST BOND.................................................................... 247

104. CHIEF REGISTRAR’S CIRCULAR NO. 2 OF 2010................................................................................. 249 APPLICATIONS IN TERMS OF SECTION 4(1)(b) OF THE DEEDS REGISTRIES ACT........................................................................................................................ 249

105. CHIEF REGISTRAR’S CIRCULAR NO. 3 OF 2010.................................................................................. 254 SECTIONAL TITLES ACT, 1986 (ACT NO. 95 OF 1986) AMENDMENT OF REGULATIONS.............................................................................................................. 254

106. CHIEF REGISTRAR’S CIRCULAR NO. 4 OF 2010.................................................................................. 256 DEEDS REGISTRIES ACT, 1937 (ACT NO. 47 OF 1937) AMENDMENT OF REGULATIONS.............................................................................................................. 256

107. CHIEF REGISTRAR’S CIRCULAR NO. 5 OF 2010.................................................................................. 259 PROHIBITION ON EXPEDITING DEEDS IN ALL DEEDS REGISTRIES............................................. 259

108. CHIEF REGISTRAR’S CIRCULAR NO. 7 OF 2010................................................................................. 261 AMENDED SCHEDULE OF FEES OF OFFICE – PRESCRIBED BY REGULATION 84 OF THE DEEDS REGISTRIES ACT, 1937 (ACT NO. 47 OF 1937)........................................................... 261

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109. CHIEF REGISTRAR’S CIRCULAR NO. 10 OF 2010................................................................................ 262 DEEDS REGISTRIES ACT, 1937 (ACT NO. 47 OF 1937), AS AMENDED BY THE DEEDS REGISTRIES AMENDMENT ACT, 2010 (ACT NO. 12 OF 2010)............................................... 262

110. CHIEF REGISTRAR’S CIRCULAR NO. 11 OF 2010................................................................................ 264 SECTIONAL TITLES ACT, 1986 (ACT NO. 95 OF 1986), AS AMENDED BY THE SECTIONAL TITLES AMENDMENT ACT, 2010 (ACT NO. 11 OF 2010).............................................. 264

111. CHIEF REGISTRAR’S CIRCULAR NO. 2 OF 2011................................................................................... 268 CONDITIONS RELATING TO MINERAL RIGHTS IN TITLE DEEDS TO IMMOVABLE PROPERTY................................................................................................................................ 268

112. CHIEF REGISTRAR’S CIRCULAR NO. 4 OF 2011................................................................................... 269 SUSPENSION OF IMPLEMENTATION OF REGISTRARS’ CONFERENCE RESOLUTIONS 46, 47 AND 62 OF 2010........................................................................................................ 269

113. CHIEF REGISTRAR’S CIRCULAR NO. 7 OF 2011.................................................................................. 270 APPLICATION OF SECTION 25(13) OF THE SECTIONAL TITLES ACT, 1986 (ACT 95 OF 1986).............................................................................................................................................. 270

114. CHIEF REGISTRAR’S CIRCULAR NO.9 OF 2011.................................................................................. 271 DECLARATON OF NATIONAL ROADS AND TRANSFER OF SUBDIVIDED LAND TO THE SOUTH AFRICAN NATIONAL ROADS AGENCY LIMITED................................................. 271

115. CHIEF REGISTRAR’S CIRCULAR NO. 10 OF 2011................................................................................ 272 SECTIONAL TITLES ACT, 1986 (ACT NO. 95 OF 1986) AMENDMENT OF REGULATIONS......... 272

116. CHIEF REGISTRAR’S CIRCULAR NO. 1 OF 2012................................................................................. 275 RECTIFICATION OF TITLE DEEDS AND UPDATING OF DEEDS REGISTRY RECORDS REGARDING THE VESTING OF STATE LAND.................................................................... 275

117. CHIEF REGISTRAR’S CIRCULAR NO. 2 OF 2012............................................................................... 277 APPLICATION OF SECTION 25(13) OF THE SECTIONAL TITLES ACT, 1986 (ACT 95 OF 1986).............................................................................................................................................. 277

118. CHIEF REGISTRAR’S CIRCULAR NO. 3 OF 2012................................................................................. 278 COMPANIES ACT, 2008 (ACT 71 OF 2008), AS AMENDED BY THE COMPANIES AMENDMENT ACT, 2011 (ACT 3 OF 2011)............................................................................................... 278

119. CHIEF REGISTRAR’S CIRCULAR NO. 4 OF 2012................................................................................ 288 COLLECTIVE INVESTMENT SCHEMES CONTROL ACT, 2002 288 (ACT NO. 45 OF 2002) CHANGE OF TRUSTEE......................................................................................... 288

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RELEVANT CHIEF REGISTRAR’S CIRCULARS

1. CHIEF REGISTRAR’S CIRCULAR NO 8 OF 1983

AMENDMENT OF REGULATIONS: DEEDS REGISTRIES ACT NO 47 OF 1937 AND SECTIONAL TITLES ACT NO 66 OF 1971

The regulations framed in terms of section 10 of the Deeds Registries Act, 1937 and section 40 of the Sectional Titles Act, 1971 have been amended by Government Notices R1892 and R1891 appearing in Government Gazette 8858. The amended regulations come into operation on 1 October 1983.

A. REGULATIONS PROCLAIMED IN TERMS OF THE DEEDS REGISTRIES ACT

1. Regulation 4 The insertion of a reference to a notarial bond in regulation 39(1) corrects an obvious error.

2. Regulation 5 and 6

2.1 The amendments to regulation 43 and 44(1) relate to the form of the preparation certificate. The surname and initials of the conveyancer must be disclosed in block letters. The new form of preparation certificate is only required on a power of attorney, application or consent executed after the regulations come into force. (Please see foot note)

2.2 Regulation 44(5) requires that the certificate by an attorney or notary on a document in terms of regulation 44(1) shall be countersigned by a practising conveyancer as proof that the preparer is in fact a practising attorney or notary. This regulation arises from the responsibility placed by section 15A of the Act and regulation 44A on the preparer of documents and the fact that the deeds office does not keep a register of practising attorneys and notaries. The form for the countersignature is prescribed.

2.3 Conveyancers may use the new form of preparation certificate and countersign documents as provided in regulation 44(5) forthwith and thus facilitate the implementation of the new procedure.

3. Regulation 7 The new regulation 44A provides that the preparer of a deed or document referred to in regulation 43 and 44(1) accepts in terms of section 15A(3) of the Act responsibility for the undermentioned facts mentioned in such deed or document or relevant in connection with the registration or filing thereof and the Registrar of Deeds shall accept that such facts have been conclusively proved for the purpose of the examination of such deeds or documents: -

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(i) The preparer accepts the responsibility that the copies of the deeds lodged for execution or registration are identical at the date of lodgement.

(ii) The preparing conveyancer accepts the responsibility that all the title conditions contained in or endorsed upon the owner’s copy of the title deed are correctly brought forward in the new title deed. The fact that the owner’s copy of the title deed is not lodged with the new deed will not affect the preparer’s responsibility. Conveyancers should take particular care that endorsements appearing on the title deed are not overlooked. The object of this provision is to relieve the deed controller of a considerable amount of routine checking. The deeds controller is however, still obliged to peruse the title conditions to ensure that they do not contain a prohibition against the registration of the new deeds or that any necessary consents, permits etc., for compliance with the title deed conditions have been furnished. The deeds controller must also draw the preparing conveyancer’s attention to any caveat or interdict requiring a similar endorsement as that appearing on the deeds office copy of the title deed to be made on the owner’s copy thereof. (iii) Where an executor, administrator, trustee, tutor, curator, liquidator, judicial manager or assignee of an estate signs a document referred to in regulation 44(1), the preparer of such document accepts the responsibility that he has satisfied himself from the relevant document of appointment that the person concerned has in fact been appointed to act in such capacity. The provision makes it unnecessary to lodge the letters of appointment and regulation 63(4) has accordingly been repealed.

The practice of referring to the letters of appointment in powers of attorney, applications and consents must be retained. This will serve as evidence that the preparing conveyancer perused the letter of appointment. It will, however, not be necessary to repeat the reference to the letter of appointment in the deeds drawn pursuant to such a power of attorney or application.

For example, in the power of attorney to pass a transfer from a deceased estate, the grantor of the power of attorney should be described as -

“Reginald Weideman in my capacity as executor in the estate of the late Charles Weideman under letters of executorship No 357/1982 dated 10 July 1982 issued by the Master of the High Court, Transvaal Provincial Division.”

In drawing the deed of transfer in this case the preamble should read substantially as follows -

“duly authorised by a power of attorney signed at Ermelo on 10 January 1982 and granted to him by the executor in the estate of the late Charles Weideman”

- the reference to the executor’s name and the letters of appointment being omitted.

A certified copy of the will, redistribution agreement, etc. must still be lodged to prove the devolution or that an administrator is empowered to enter into the transaction in question. Similarly although documentary proof is not required of the appointment of a curator of a mental patient, proof of his powers is required.

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(iv) (a) The preparer of a deed or document accepts the responsibility based on due enquiry having been made by him that the names, identity number or date of birth of any natural person being a party to the deed or document and in the case of a woman her marital status and in the case of any other person, its name and registered number, if any, are correctly reflected in that deed or document. In view of this provision it will no longer be necessary to lodge documentary proof to establish that the status of a woman as reflected in that deed or document is correct e.g. the joint affidavit by the spouses to prove that their marriage is governed by the laws of a foreign country will not be required to be lodged with the deeds.

The conveyancer signing the preparation certificate on a deed of transfer, certificate of title to immovable property or a mortgage bond accepts responsibility for the correctness of the names, identity number, date of birth, marital status of a woman or registered number of a juristic person only to the extent that the aforesaid particulars have been correctly brought forward in the deed from the special power of attorney or application relating thereto. (b) (i) The preparer of a document referred to in regulation 44(1) accepts responsibility on the basis of having made due enquiry that any person who has signed such document in a representative capacity on behalf of a company, church, association society or other body of persons or institution has obtained the necessary authority to sign such document on its behalf.

The provisions dispenses with the necessity of lodging extracts from the constitution of the body concerned to establish who the office bearers are and their authority to act on behalf of such body or copies of any authorising resolution. Here again the power of attorney, application or consent must disclose the name of the office bearer who signed the document, his office and where authorised by a resolution mention may be made of the resolution. The preamble to the deed should, however only state that the appearer is acting on a power of attorney granted to him by the company, church etc., and no mention must be made to the office bearer who signed the power of attorney or of any authorising resolution.

The term “society” in regulation 44A(b)(i) and (ii) of course includes a building society.

(ii) The preparer of a document referred to in regulation 44(1) accepts responsibility on the basis that he has made due enquiry that the transaction disclosed therein is within the scope of the deed of constitution or regulations of any church, association, society or other body of persons or institution other than a company except a share block company being a party to a deed.

This provision means that the powers of the church, association etc., to enter into the transaction reflected in the document need not as in the past be proved by lodging extracts from its constitution.

Section 36 of the Companies Act No 61 of 1973 provides that no act of a company shall be void by reason only of the fact that the company is a party to a deed or

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document the validity of such deed or document is not effected by the fact that the company’s memorandum does not confer upon it the power to conclude the transaction reflected therein.

A share block company is an exception to this rule. Section 8(1)(d) of the Share Blocks Control Act 59 of 1980 provides that any act by a share block company in excess of its capacities or powers shall be void. In the case of a share block company being a party to the transaction reflected in a document referred to in regulation 44(1), the preparer of the document accepts responsibility after having made due enquiry, that the transaction is within the scope of the constitution and regulations of that share block company. It must be pointed out that the capacity and powers of a share block company are limited by sections 8(1)(a)(b) and (c) of the Share Block Control Act.

3.1 Regulation 44A does not make mention of notarial deeds for the reason that it has always been accepted that a notary is responsible for the matters dealt with in the regulation in regard to a deed executed before him. Vide ex parte Bullard 1937 TPD 297.

4. Regulation 8 4.1 The deletion of paragraph (a) of regulation 49(1) is a consequential amendment arising from the new regulation 44A.

4.2 The second sentence in paragraph (b) of regulation 49(1) has been amended as it is obsolete.

5. Regulation 9 & 11 Regulations 58 and 63(4) have been repealed as the new regulation 44A makes their provisions redundant.

6. Regulation 12 The amendment to regulation 68(11) corrects an obvious error in the English text of the regulation.

7. Regulation 13 New regulation 71 substituted.

8. Regulation 14 The repeal of regulation 78 arises from the repeal of section 59 of the Act.

9. Regulation 15 The amends certain prescribed forms.

10. Regulations 3 & 10 The amendments to regulations 35(1)(g) and 60(3) relate to the changed procedure of referring to a deed by its number and year.

B. REGULATIONS PROCLAIMED IN TERMS OF THE SECTIONAL TITLES ACT

The regulation amends certain forms in annexure 1 to the regulations.

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C. Chief Registrar’s Circulars No 5/1980 and 3/1981 relating to section 36 of the Companies Act No 61/1973 are herby repealed.

FOOTNOTEDeeds executed after the regulations have come into operation on or after 1 October 1983 must bear the new form of preparation certificate. In view of the wording of sub section 44A(e) it will be necessary for deeds controllers to check the items in Section 44A(d)(1) where the power of Attorney or application is signed before 1 October 1983.

SignedCHIEF REGISTRAR OF DEEDS

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SUBDIVISION OF AGRICULTURAL LAND ACT NO 70 OF 1970: APPLICATION OF SECTIONS 3(b), 3(c) AND 6(1)

The Directorate: Soil Protection of the Department of Agricultural Economics and Marketing has approved that a Minister’s consent in terms of Sections 3(b), 3(c) and 6(1) of the above Act will not be necessary:

(a) where agricultural land is transferred to two or more persons and simultaneously to one person, or (b) where a co-owner transfers his undivided share in agricultural land to two or more of the remaining owners of that property provided that with regard to the proviso to Section 13(1) of the Deeds Registries Act, certificates of registered titles in terms of section 35 of the Deeds Registries Act of their aggregate shares are registered in their names simultaneous with such transfer.


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3. CHIEF REGISTRARS CIRCULAR NO 21 OF 1990

SECTION 14 OF ACT 47 OF 1937

In view of the fact that a certain amount of confusion exists regarding the application of Registrars Conference Resolution 31/1990, it is deemed necessary to bring the following to your attention: -

1. According to Jones, Conveyancing in South Africa, third edition on page 390, as well as Hahlo, S.A. Law of Husband and Wife, fifth edition, page 386, a divorce agreement which has been made an order of court can be amended by the parties concerned, provided the interest of third parties are not affected by such amendment. See also Ex Parte Naude 1964 (1) SA 763 and Ex Parte Boshi and Another 1979 (1) 249.

1.1 The parties can therefore, irrespective of the award in the divorce agreement, decide after such agreement has been concluded to sell the property, in which case the property may be transferred to the purchaser, without the title first being endorsed in terms of section 45bis or section 45bis (1A) of Act 47 of 1937.

1.2 A certified copy of the divorce court agreement must be lodged so as to enable the registrar to determine whether the interests of third parties are affected by the amending agreement.

1.3 The undersigning of the power of attorney by both parties to pass transfer will serve as proof of the amendment to the initial agreement and no formal amending agreement need be lodged.

SignedActing CHIEF REGISTRAR OF DEEDS

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4. HOOFREGISTRATEURS OMSENDBRIEF NO 2 VAN 1993

BESPOEDIGING EN HERSTEL VAN AKTES

1. Slegs aansoeke deur die betrokke aktevervaardiger vir bespoediging of herstel van aktes, en wat skriftelik gedoen en behoorlik gemotiveerd is, mag oorweeg word.

2. Hierdie aansoek moet vergesel wees van ‘n aktevervaardiger se sertifikaat tot dien effekte dat geen interdikte, hofbevele of ander beletsels teen die transaksie genoteer of hangende is nie.

3. Bogenoemde aansoek, motivering en aktevervaardigersertifikaat moet gemerk word vir verfilming of liassering by die betrokke akte.

4. Aansoeke vir bespoediging mag slegs deur die Registrateur en/of ‘n beampte, wat hy spesiaal vir die doeleindes aangewys het, oorweeg word. In hulle afwesigheid sal die waarnemende Registrateur of Adjunk Registrateur daarvoor verantwoordelik wees.

5. Aansoeke vir herstel van aktes moet eers aan die betrokke Assistent Registrateur vir goedkeuring voorgelê word alvorens die Hoofaktekontroleur vir herstel genader mag word. Die Hoofaktekontroleur mag geen akte herstel indien die Assistent Registrateurs nie sy goedkeuring op die akte aangeteken het nie. Die Hoofaktekontroleur het nog steeds die bevoegdheid om aktes vir herstel aan te neem of af te wys, behalwe in daardie gevalle waar hy opdrag daartoe ontvang vir ‘n foutiewe verwerping of andersins.

Aktevervaardigers moet daarop attent gemaak word dat die goedkeuring deur die Assistent Registrateur nie noodwendig ‘n opdrag van die Hoofaktekontroleur is om die akte te herstel nie, maar wel ‘n goedkeuring dat die akte vir herstel oorweeg mag word.

6. Elke Registrateur moet toesien dat besonderhede van alle aktes wat bespoedig of herstel word, asook van die betrokke aktevervaardiger, volledig in ‘n register vir die doel aangeteken word.

GetekenHOOFREGISTRATEUR VAN AKTES

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5. HOOFREGISTRATEURSOMSENDBRIEF NO 3 VAN 1993

DEELTITELS: WYSIGING VAN BESTUURS- EN GEDRAGSREëLS

1. Probleme word van tyd tot tyd ondervind by die wysiging van reëls deur regspersone, waar gepoog word om diensbaarhede te skep by wyse van reëls, byvoorbeeld dat die eenheid nie verkoop of verhuur mag word sonder skriftelike toestemming van die trustees van die regspersoon nie of dat die eenheid nie geokkupeer of besit mag word deur ‘n bepaalde aantal persone nie.

2. Wysiging van die reëls op so ‘n wyse kan nie geregistreer word nie en wel om die volgende redes:

2.1 a.35(2) van die Wet op Deeltitels No 95/1986 bepaal dat die reëls vir die beheer, bestuur, administrasie, gebruik en genot van die dele en die gemeenskaplike eiendom voorsiening moet maak. Daar word verder vir slegs twee stelle reëls voorsiening gemaak, naamlik:

(a) bestuursreëls; en (b) gedragsreëls.

2.2 ‘n Soortgelyke bepaling, met die presiese woorde, is ook opgeneem in die definisie van reëls in a.1 van gemelde Wet.

2.3 Die woord “gebruik” moet eng vertolk word en kan nie breër belees word as wat a.44(a)(d) en (e) van die Wet op Deeltitels, 1986 bepaal nie:

“(d) die gemeenskaplike eiendom op so ‘n wyse gebruik en benut dat hy nie op onredelike wyse die gebruik en benutting daarvan deur ander eienaars of ander persone wat wettig op die perseel is, belemmer nie;

(e) nie sy deel of uitsluitlike gebruiksgebied op so ‘n wyse of vir so ‘n doel gebruik of toelaat dat dit aldus gebruik word, dat ‘n oorlas aan ‘n okkupeerder van ‘n deel veroorsaak word nie.”

3. Geen ander afleiding kan dus gemaak word as dat dit nie die wetgewer se bedoeling was om eienaars van dele se eiendomsreg by wyse van reëls te beperk nie. ‘n Wet moet altyd so uitgelê word dat dit so min beswarend as moontlik is. Dit is ook die howe se standpunt. In die verband kan daar verwys word na, onder andere, Transvaal Investment Co v Springs Municipality 1922 AA (347) en Union Government v Schierhout 1925 AA (348).

4. Daar moet bepaal word of die reëls waarna in paragraaf 1 hierbo verwys word, wel saaklike regte is wat eiendomsreg verminder.

4.1 Die skrywer Voet beskryf ‘n serwituut as volg:

“a servitude is a right belonging to one person, in the property of another, entitling the former to exercise some right or benefit in the property or to prohibit the latter from exercising one or other of his normal rights of ownership.”

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4.2 Die howe se standpunt is dat regte wat vermindering van eiendomsreg teweegbring, saaklike regte is.

4.2.1 Ex part Geldenhuys 1926 OPD 155 (162) “a burden upon land.”

4.2.2 Commissioner for Inland Revenue v Estate Hobson 1933 CPD 386 (394) “Charge upon land.”

4.2.3 Schwedhelm v Hamman 1947 (1) SA 127 (E) (135) “a subtraction from the dominium.”

4.2.4 Ex parte Pierce 1950 (3) SA 628 (O) (636) “dimunition of ownership.”

5. a.15(b)(1)(d) Wet 95 van 1986 bepaal onder andere dat die registrateur ‘n saaklike reg (wat in ‘n notariële akte beliggaam is) in of oor ‘n eenheid registreer.

5.1 a.3(1) van gemelde Wet bepaal dat behalwe sover hierdie Wet of ‘n ander wet anders bepaal, of uit die samehang anders blyk, is die bepalings van die Registrasie van Aktes Wet, 1937 (Wet 47 van 1937), vir sover daardie bepalings aldus toegepas kan word, mutatis mutandis van toepassing met betrekking tot alle dokumente wat ingevolge hierdie Wet in ‘n registrasiekantoor geregistreer of geliasseer is of bestem is om geregistreer of geliasseer te word.”

5.2 a.3(4) van gemelde Wet bepaal: “ ’n eenheid word geag grond te wees”

6. Daar moet dus gelet word dat in daardie gevalle waar wysigings van reëls diensbaarhede skep, dit by wyse van ‘n notariële akte, volgens die bepalings van a.65 van die Registrasie van Aktes Wet, 1937 (Wet No 47 van 1937) geregistreer word.


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6. CHIEF REGISTRAR CIRCULAR NO 5 OF 1993

RATES CLEARANCE: ESTABLISHMENT OF A BODY CORPORATE: SECTION 36(1) READ WITH SECTION 15B OF THE SECTIONAL TITLES ACT NO 95 OF 1986

1. Whenever section 3(1) of the Sectional Titles Act, 1986 is to be applied, the resulting provisions of the Deeds Registries Act, 1937 may never override existing provisions of the Sectional Titles Act.

2. Whereas sections 15B(3)(b) and 34(4) make explicit provision for the payment of rates and monies to a local authority in certain instances and for the production of a rates clearance certificate as proof thereof, one cannot rely on section 3(1) in this instance.

3. Whereas the provisions of the former section 15(5) have been omitted by the legislator in the Sectional Titles Amendment Act No 63 of 1991, and although in the long title of the Sectional Titles Amendment Act No 7 of 1992 the intention of the legislator is clearly stated as “to further regulate proof of payment of rates and monies to the local authority”, the legislator once again omitted similar provisions to the former section 15(5) of the Act, it must be concluded that the omission was intentional. From this it follows that one cannot rely on section 3(1) of the Act and therefore it won’t be necessary to produce a rates clearance certificate to the registrar of deeds whenever the first unit of a sectional title scheme is to be transferred and thus creating a body corporate in terms of section 36(1).

4. However, a conveyancer’s certificate in terms of section 15B(3) will be necessary whenever a unit is to be transferred.


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AMENDMENT IN TERMS OF SECTION 4(1)(b) OF THE DEEDS REGISTRIES ACT, 1937 (ACT 47/1937) OF AN ERROR IN THE VESTING CLAUSE OF A DEED

1. In spite of Registrars’ Conference Resolution No 4/1989, it seems that some confusion still exists around the question as to whether an erroneous marital state of a person in the vesting clause of a deed may be amended in terms of section 4(1)(b) of the said Act.

2. In an attempt to resolve the matter, sections 4(1)(b) and 17(1), (2) of the said Act are to be carefully considered.

2.1 To comply with the prevailing law in respect of marriages in community of property and the vested right to the joint estate in immovable property, real rights in immovable property and notarial bonds, section 17(1) of the said Act stipulates that such property, real right or notarial bond “ ... shall be registered in the name of the husband and the wife, .....”.

2.2 However, section 17(1) of the said Act must not be read in isolation, but in conjunction with section 17(2). Section 17(2) elaborates on the registration requirements in compliance with section 17(1) of the Act. The provisions of section 17(2) can therefore be seen as to “describe” the persons contemplated in section 17(1) of the Act, in relation to their marital state and the spouses’ names.

2.3 Section 4(1)(b) of the said Act provides for the rectification of an error in the name of the “description” of any person, provided certain conditions are met. The marital state, whether the marriage was concluded in or out of community of property and even the names of the spouse are all part of a persons description (see section 17(2)(a), (b) and (c)), therefore section 4(1)(b) of the Act can be applied to rectify an error in such a description.

2.4 Marriages according to Moslem or Hindu rites and Customary Unions of Blacks are at present not regarded in terms of South African law as legal marriages. If, however, a person is described as unmarried, but in actual fact is married as aforesaid, the provisions of section 4(1)(b) can be invoked to clarify the description of such party.

Similarly, in the case of a person described as unmarried but, in actual fact is a widow/ divorcee etc., this can also be amended to rectify the position.

3. Whenever section 4(1)(b) of the Act is to be considered as above, the principles laid down in Ex Parte Menzies et Uxor 1993 (3) SA 799, must be kept in mind. Apart from these considerations, it must also be established whether such an amendment would not result in a contravention of any other law, e.g. the Subdivision of Agricultural Land Act, 1970 (Act 70/1970), Minerals Act, 1991 (Act 50/1991) and the Advertising on Roads and Ribbon Development Act, 1940 (Act 21/1940).

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4. If the deed to be amended, is mortgaged by a registered mortgage bond, such amendment must not invalidate the bond. To comply with, e.g. the provisions of section 15 of the Matrimonial Property Act, 1984 (Act 88/84) and to renounce the legal exception “de duobus vel pluribus reis debendi”, it is recommended that a “substituting” bond be registered in lieu of the existing bond, which is to be cancelled simultaneously.


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8. CHIEF REGISTRARS’ CIRCULAR NO 5 OF 1994

MATRIMONIAL PROPERTY ACT NO 88 OF 1984

1. Due to various amendments to the Matrimonial Property Act No 88 of 1984, hereafter referred to as “the Act”, Chief Registrars’ Circulars No’s 2/1984, 1/1987, 12/1993 and 1/1994 are hereby consolidated and consequently withdrawn.

2. The Act came into operation on 1 November 1984, and has been amended by:

(a) Matrimonial Property Amendment Act, No 91 of 1986; (b) Intestate Succession Act, No 81 of 1987; (c) Marriage and Matrimonial Property Law Amendment Act, No 3 of 1988; and (d) General Law Fourth Amendment Act, No 132 of 1993, which came into operation on 1 December 1993.

The Act consists of four chapters and only those clauses which affect the Deeds Office directly, will be highlighted.

3. CHAPTER I : ACCRUAL SYSTEM

3.1 This chapter deals exclusively with the accrual system, and applies to marriages out of community of property entered into on or after 1 November 1984.

3.2 Section 8: By virtue of section 8 the Court may on application, of a party to a marriage which is subject to the accrual system, order the immediate division of the accrual and a new matrimonial property system in terms of which the accrual system and community of property and community of profit and loss are excluded.

The Registrar of the Court granting the order shall send a copy of the order to the registrar of deeds. The registrar of deeds is obliged to endorse a reference to the new matrimonial property system on the deeds office copy of the antenuptial contract. He must forward a copy of the order to all other registrars of deeds who must make the necessary endorsement on the copy of the antenuptial contract in their possession.

4. CHAPTER II : ABOLITION OF THE MARITAL POWER

4.1 In terms of section 29 of the General Law Fourth Amendment Act, 1993 (Act No 132 of 1993) section 11 of the Act has been substituted. Section 11 now reads as follows: “11. (1) The common law rule in terms of which a husband obtains the marital power over the person and property of his wife is hereby repealed. (2) Any marital power which a husband has over the person and property of his wife immediately prior to the date of coming into operation of this subsection, is hereby abolished.

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(3) The provisions of Chapter III shall apply to every marriage in community of property irrespective of the date on which such marriage was entered into. (4) The abolition of the marital power by subsection (2) shall not affect the legal consequences of any act done or omission or fact existing before such abolition”.

4.2 The common law rule in terms of which a husband obtains the marital power over the person and property of his spouse has been repealed (subsection (1)) and furthermore the marital power of the husband has been abolished (subsection (2)) which has the effect that a husband is no longer the administrator of the joint estate of parties who were married in community of property prior to 1 November 1984.

4.3 A husband and wife married in community of property prior to 1 November 1984, and whose matrimonial property regime was not altered in terms of section 21 or 25 of the Act, are now placed in the same position as parties to a marriage in community of property entered into on or after such date, i.e. chapter III of the said Act is now applicable to such a marriage. The husband or wife may thus only perform certain acts with the written consent of the other spouse. Whenever such an act is to be notarially executed, the consent must be filed in the notary’s protocol. (See Ex parte Bullard et Uxor 1937 TPD 297).

4.4 The abolition of the marital power of the husband, removes the restrictions on the capacity of a wife to contract and to litigate.

4.5 The abolition of the marital power of the husband over his wife will also have the following effect as from 1 December 1993:

4.5.1 Compliance with the provisions of regulation 36 of the Deeds Registries Act of 1937 has become superfluous. 4.5.2 In deeds and documents, no reference to the retention or exclusion of the marital power of the husband must be made. Such reference should be regarded as pro non scripto and deeds must not be rejected for that reason.

4.5.3 If property or a real right is donated or bequeathed to a woman with the exclusion of the community of property and marital power of the husband, reference to the latter should be omitted.

4.5.4 As sections 1 and 2 of the Matrimonial Affairs Act, 1953 (Act No 37 of 1953) are repealed by virtue of section 10 of the said General Law Fourth Amendment Act, 1993 (Act 132 of 1993), applications in terms of section 1 read in conjunction with section 2 of Act 37 of 1953 will no longer be accepted for registration.

4.6 Marriages governed by the laws of a foreign country are not affected by the new section 11 of the Act. Your attention is, however, drawn to the provisions of section 17(6) of the Deeds Registries Act of 1937 as amended by section 1 of the said General Law Fourth Amendment Act of 1993. Either spouse to such a marriage must now be assisted by the other spouse unless

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the assistance of the other spouse is deemed by a registrar of deeds to be unnecessary. Note that the registrar of deeds is still entitled to use his discretion in this regard.

5. CHAPTER III : MARRIAGES IN COMMUNITY OF PROPERTY

5.1 In terms of section 11(3) of the Act, this chapter shall apply to every marriage in community of property, irrespective of the date of the marriage.

5.2 Section 14 provides the wife to a marriage in community of property which the same powers with regard to the disposal of assets of the joint estate, contracting of debts and management of those which the husband has before the coming into operation of the Act.

5.3 Section 15 provides that a spouse to a marriage in community of property may perform any juristic act without the consent of the other spouse. However, section 15(2) requires a consent by the other spouse for the acts referred to in sections 15(2)(a)-(h) and 15(3)(a), (b) and (c).

5.3.1 Section 15(2)(a) reads as follows:

“(2) Such a spouse shall not without the written consent of the other spouse -

(a) alienate, mortgage burden with a servitude or confer any other real right in any immovable property forming part of the joint estate;

(b) enter into any contract for the alienation, mortgaging, burdening with a servitude or conferring of any other real right in immovable property forming part of the joint estate”.

The position is therefore that where immovable property is dealt with, either of the two spouses may act with the written consent of the other spouse. See also the definition of “owner” in section 102 of the Deeds Registries Act No 47/1937.

5.3.1.1 The consent of the spouse must be in writing and where the document is required for registration in a deeds office, it cannot be done by ratification (section 15(4)). Whenever a power of attorney has been granted by one of the spouses to a marriage in community of property, and the other spouse has also signed the power of attorney as giving his or her consent, it must be stated clearly on the power of attorney that such a signature contemplates the necessary consent. However, when a power of attorney has been granted by both spouses, they must both be cited in the preamble of the deed.

5.3.1.2 Whenever a consent in terms of section 15(2) is required to pass a Sectional Bond, the consent must be filed according to the provisions of annexure 6 of the Sectional Titles Act, 1986.

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5.3.1.3 The consent must be given in respect of each act contemplated in paragraphs (a), (b), (f), (g) and (h) of section 15(2) separately and the signature must be attested by two witnesses (section 15(5)). From this it would appear that an agent of a spouse acting under a general power of attorney cannot consent to such an act, unless the specific acts as contemplated in the said paragraphs of section 15(2) are as such specified in the power of attorney.

5.3.2 Section 15(6) provides that where a spouse performs inter alia acts set out in 15(2)(b) quoted above in the ordinary course of business profession or trade, i.e. if the acts do not have any bearing on the property of the spouses joint estate, the consent of the other spouse is not required. Due to the fact that paragraph (a) of subsection (2) of section 15 has not been excluded in subsection (6) of section 15, a partner to a partnership who is married in community of property, must still obtain the consent of the other spouse irrespective of whether the act is performed in the ordinary course of business, profession or trade.

5.4 Section 16 empowers the court, in cases where the consent of the other spouse cannot be obtained or for other reasons, to dispense with such consent. 5.5 All powers of attorney, deeds and documents signed up to and including 30 November 1993 by the husband as administrator of the joint estate, together with the required certificate providing that the provisions of section 15(2)(a) of the Act is not applicable, will be acceptable for registration, even though the registration will take place thereafter.

6. CHAPTER IV : GENERAL PROVISIONS

6.1 Section 20: The court may on application by a spouse, if it is satisfied that the spouses’ share in the joint estate will be prejudiced, order the immediate division of the joint estate and also order that the community of property be replaced by another matrimonial property system on such conditions as the court may think fit.

The amended section 3(1)(k) of Act 47/1937 (see section 28), makes provision for the registration of the above order in terms of section 20. This order of court is registered in the same way as an Antenuptial Contract.

6.2 Section 21(1): A husband and wife whether married before or after 1 November 1984 may jointly apply to court to change their matrimonial property system and the court may order that the matrimonial property system shall no longer apply to their marriage and authorise them to enter into a notarial contract by which their future matrimonial property system is regulated.

Although this subsection still makes provision for the change of the marital power which may apply to a marriage, the provisions of the new section 11 of the Act must be kept in mind whereby the marital power has been abolished altogether irrespective of the matrimonial property system of such marriage.

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Notarial contracts registered under this subsection must comply with the provisions of section 89 of the Deeds Registries Act, No 47/1937.

6.3 Section 22: Subject to the provisions of the Insolvency Act, No 24 of 1936, donations between husband and wife are now no longer void or voidable even if made before or after 1 November 1984.

7. VESTING OF IMMOVABLE PROPERTY AND REAL RIGHTS, INCLUDING BONDS, IN ALL DEEDS TO BE REGISTERED

7.1 Marriage out of community of property Comply with the provisions of section 17(2) of the Deeds Registries Act, No 47/1937, viz:

“xxxxxxxxxxxxxxxxxxxxxxxxxxx (Full name) xxxxxxxxxxxxxxxxxxxxxxxxxxx (Identity No) married out of community of property:”

Note: Reference to the marital power and the names of the other spouse are to be omitted

7.2 Marriage in community of property Comply with the provisions of section 17(1) and (2) of the Deeds Registries Act, No 47/1937, viz:

“xxxxxxxxxxxxxxxxxxxxxxxxxxx (Full name) - the husband xxxxxxxxxxxxxxxxxxxxxxxxxxx (Identity No) and xxxxxxxxxxxxxxxxxxxxxxxxxxx (Full name) - the wife xxxxxxxxxxxxxxxxxxxxxxxxxxx (Identity No)

married in community of property to each other.”

(a) Any reference to the exclusion of the marital power due to testamentary disposition or otherwise, must be omitted. This does not apply in case a donee heir or legatee has married according to the laws of a foreign country.

(b) The note in paragraph 7.1 is mutatis mutandis applicable.

(c) Either the husband or the wife may be cited first.

7.3 Foreign marriages Although the Act does not apply to foreign marriages, section 17(2) of the Deeds Registries Act, No 47/1937 is applicable, viz:

“xxxxxxxxxxxxxxxxxxxxxxxxxxx (Full name) xxxxxxxxxxxxxxxxxxxxxxxxxxx (Identity No/Date of birth)

Married, which marriage is governed by the laws of xxx (name country).”

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(a) Any reference to the exclusion of the marital power due to testamentary disposition or otherwise may be disclosed.

(b) Due to wording of section 17(6) of Act 47/37 the names of the “other” spouse must also be cited in the preamble of deeds and documents.

7.4 Marriages according to Moslem or Hindu rites Whenever a person is married according to one of the above rites, he/she may be described as being married according to such rites. The legal consequences of a marriage in terms of the South African Law are, however, not applicable.

“xxxxxxxxxxxxxxxxxxxxxxxxxxx (Full name) xxxxxxxxxxxxxxxxxxxxxxxxxxx (Identity No)

married according to Moslem/Hindu rites.” (a) Party may also be described as unmarried. (b) The provisions of section 17(6) of the Deeds Registries Act, 1937 (Act No 47 of 1937) do not find application to such marriages.

7.5 Married persons as partners in a Partnership Section 17(1) of the Deeds Registries Act, No 47/1937 determine that immovable property or real rights therein shall not be registered in the name of a husband and his wife is such property or real right is to be registered in the name of a partnership and that they are only involved as partners in that partnership, viz:

“1. xxxxxxxxxxxxxxxxxxxxxxxxxxx (Full name) xxxxxxxxxxxxxxxxxxxxxxxxxxx (Identity No) married out of community of property.

2. xxxxxxxxxxxxxxxxxxxxxxxxxxx (Full name) xxxxxxxxxxxxxxxxxxxxxxxxxxx (Identity No) married in community of property to xxxxx (name of spouse).

Together carrying on business in partnership as xxxxx (name of partnership).”

7.6 Unmarried persons To comply with the provisions of section 17(2) of the Deeds Registries Act No 47/1937, unmarried persons must be described as:

“xxxxxxxxxxxxxxxxxxxxxxxxxxx (Full name) xxxxxxxxxxxxxxxxxxxxxxxxxxx (Identity No)

unmarried.

However, such a person may be described as a widow, widower or divorcee, whichever is applicable.


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PROCEDURE TO IMPLEMENT THE CATEGORY 1 BUSINESS ACCOUNT IN THE DEEDS REGISTRIES

1. As you are aware, consent has been obtained from the Department of State Expenditure to implement a Category I Business Account for the deeds registries. We are aiming to implement the account from 1 October 1994. The Commissioner of Inland Revenue also confirmed that VAT will not be payable on the office fees and registration fees which are levied.

2. The following procedures will be followed:

2.1 Consent to print receipts from the micro-computer has already been obtained from State Expenditure.

2.2 The purchase of micro-computers and printers for the cashiers at the deeds registries Pretoria, Cape Town, Johannesburg, Pietermaritzburg and Bloemfontein have been approved by the ITC and they will be delivered shortly. Existing micro-computers will be used by the deeds offices in King William’s Town, Kimberley and Vryburg.

2.3 A computer-programme to be used on the micro-computer has already been developed and will have the following functions:

2.3.1 Register a conveyancing firm and issue an account number (see Annexure A).

2.3.2 Print a notice of registration and account number for dispatch to the firm. This account number will be identical to the firm number that has been allocated to the firm by the local deeds office with the addition of an alphabetical character added in front of the number to identify the relevant office where the account is to be paid. It will not be necessary to add this alphabetic character to the firm number on the deeds and documents, as the computer will automatically generate this alphabetic character for accounting purposes.

2.3.3 Print monthly accounts.

2.3.4 Debit monthly payments against the client’s account (screen on micro-computer).

2.3.5 Print daily accounting reports.

2.3.6 Print a summary of the daily payments.

2.3.7 Print a receipt (single).

2.3.8 Print receipts at the end of the day.

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2.3.9 Print summary of outstanding debts.

2.3.10 Print a list of bad debtors. 2.3.11 Print an account for a specific firm.

2.3.12 Print a list of amounts paid and dates of payments regarding a specific firm. 2.3.13 Print a list of a firm’s transactions for a specific month.

2.3.14 Print the total amount of accounts sent out in the previous month.

3. The micro-computers shall be linked with our Aktex mini-computer and the data captured by the cashiers will be stored and assimilated thereon.

4. The following procedure by the data typist must be followed to input the relevant fees:

4.1 The deeds controllers will note the fee or exemption charged for each registration on the upper left corner of the first page of the deed. Deeds controllers must take note of paragraph 4.2(d). Please take note that in the case of “any other registration or annotation” the fee endorsement must be positioned on the upper left hand corner of the consent or application. The existing fee endorsement can be used for this purpose, or offices may order endorsements for this purpose similar to the following example.

4.2 The list of Office Fees has been adapted to make, inter alia, provision for the following registration fees:

For the registration of:

(a) A transfer of which the purchase price (i) does not exceed R60,000.........................Exempted; (ii) is above R60 000 but does not exceed R150 000...................................................R75,00; and (iii) exceeds R150 000...................................R100,00; and (b) A Bond of which the amount -

SEëLREG..........................STAMP DUTYFOOI....................FEES

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(i) does not exceed R150 000........................R75,00; and

(ii) exceeds R150 000....................................R100,00; and

In the case of a bond the registration fee will be assessed only on the capital amount. Where the capital amount and the additional amount are added together for assessment of stamp duty, the registration fee will be assessed only on the capital amount.

(c) A cancellation or release of a registered mortgage bond...........R30,00; or (d) Any other registration or annotation in registers or records, including certificates of title, and all other registrations which are not exempted by a law or where no purchase price is involved..............................R75,00

4.3 After the deeds have been executed, numbered and dated, the existing normal registration functions will be completed until the deeds get to the data section. At this stage the registration fee, as indicated on the document by the deeds controllers, will be captured by the data typist as follows:

4.3.1 Before registering anything on the computer the following particulars on the top of the screen must be completed.

(a) Account number of firm. (b) File number of firm (client’s file number) (c) Tariff/fee/exemption (d) Deed/document number

As soon as the above information has been entered, the system will automatically shift to the part of the screen where the normal registration action can take place.

Please take note that in the case where the client’s file number is not clear or is to long, it will not be keyed in by the data typist, in which case the firm will have to use the deed/ document number to link the transaction to their account or client’s file.

5. At the end of the month the debits that have been entered onto the computer will be consolidated and closed (this action will be carried out by the staff of the CRD) and electronically transferred to the Aktex minicomputer. A message to inform the cashier that the monthly accounts can now be printed, will thereafter appear on her micro-computer.

The account format is designed so that it can be folded and placed in a window envelope with the name and the address to the front.

6. The various registrars must take the following steps as soon as possible.

6.1 Registration forms (see Annexure A) must be supplied to all firms responsible for lodgements in your office, together with a copy of this circular.

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6.2 Offices where the use of firm numbers has not been implemented, must adopt this procedure and see to it that a number is allocated to every single firm. The firm number, name and telephone number must appear on the left hand corner of the cover of each registration. In order to assist you in this matter a copy of Registrar’s Circular No 30 of 1972 that has been issued in Pretoria is attached (Annexure B)

This number must in future, over and above appearing on the deeds and accompanying documentation, also appear on all registration applications and requests for endorsements.

6.3 Please make sure that adequate space is provided at the cashier for the micro-computer and printer and in the smaller offices at the office of the officer who will be responsible for the duties of the cashier amongst other.

Please make sure that a power point is available and that provision has been made for the linking of the micro to the LAN.

6.4 You are requested to identify a senior member of your staff to attend a training course in Pretoria on 19 and 20 September 1994.

6.5 If required, contact can be arranged with local attorneys.

7. The following steps are to be taken by the conveyancing firms:

7.1 Complete the registration form (Annexure A) and return it to your local registrar.

7.2 The firm will be notified in writing of their account number.

7.3 As explained in paragraph 4.3.1(b) supra, provision is made for the client’s file-number. These numbers must appear clearly on the front of each cover. If the client’s file number is too long or illegible, it will be ignored by the data typist, in which case the firm will have to make use of the Deed-/document number to link the transaction to their own account or client’s file (see paragraph 4.3.1(d)) supra.

7.4 Firms must assure that the number of the firm who is responsible for paying the account is displayed clearly and that all other firm number shown on the cover or document are removed. 7.5 Conveyancing firms will receive monthly accounts from the relevant Deeds Office which account will, as in the case of a telephone account only state the total amount payable. A specified account will be available on the Aktex System. If necessary, firms who are not linked to the Aktex System, may obtain a specified account from the cashier at their local Deeds Office.

7.6 Please note that section 7 of the Deeds Registries Act, 1937, as amended in terms of section 3 of the Deeds Registries Amendment Act, 1993 (Act 14 of 1993) will also be operational as from 1 October 1994. This will have the effect that conveyancers and Government Departments will have to pay for information and copies of deeds issued. The procedure for payment at the information counters will be as follows:

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7.6.1 The existing application form requesting information will be completed and handed to the data typist. She will issue a payment-slip which must be handed in at the cashier for noting it against the firm’s monthly account. Firm numbers must appear clearly on these said application forms.

8. As the implementation of the Business Account will bring about a considerable change for each and everyone concerned, it can be expected that unforseen problems will occur. Everybody’s patience and co-operation is therefor needed to make a success of this venture.


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Firm name: ______________________________________________________________ Firmanaam

Firm number: __________________________________________________________ Firmanommer

Postal address: ________________________________________________________________ Posadres

________________________________________________________________

________________________________________________________________

Postal code: __________________________________________________________________ Poskode

Telephone number: _____________________________________________________ Telefoonnommer

AKTEX user number:____________________________________________ AKTEX gebruikersnommer

Contact person: _________________________________________________________ Kontakpersoon

I agree to settle the account within 30 days and acknowledge that interest will be charged on late payment at current interest rates.

Ek onderneem om die rekening stiptelik binne 30 dae te vereffen en neem kennis dat rente gehef sal word vir laat betaling teen die heersende rentekoers.

Signature of Conveyancer: ______________________________ Handtekening van Transportbesorger:

Date: _________________________________________________________ Datum

Annexure A/Aanhangsel A

Department of Land AffairsDepartement van Grondsake

DEEDS OFFICE ACCOUNT - REGISTRATION FORMAKTEKANTOORREKENING - REGISTRASIE VORM

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10.CHIEF REGISTRAR’S CIRCULAR NO 15 OF 1994

CATEGORY I BUSINESS ACCOUNT : DEEDS OFFICES

1. In order to remove some uncertainties regarding the changing of fees and to achieve uniformity, the following guidelines are given:

1.1 With reference to item 6 of the Schedule of Fees of Office it can, in general, be said that whenever an act of registration will attract its own numbering code viz: T; B; BC; K; SS; ST; SBC etc, such act of registration will be subject to the registration fee. The amount of properties or titles involved are therefore of no consequence.

1.1.1 Taking for instance, into consideration the abovementioned guideline, in the case of a bank changing its name, a charge of R75,00 per endorsement will not be charged but only R75,00 for the application per office. (Only one BC-number per office is given).

1.1.2 Where an application for an opening of a township is received, R75,00 will be charged for the registration of the general plan. (Section 46 does not prescribe an application but it does prescribe the registration of the general plan).

However, if a Certificate of Township Title is to be registered simultaneously, R75,00 will in addition be charged for the Certificate of Township Title.

1.1.3 The consent by a bondholder to the registration of a servitude does not get a BC- number, but is filed as a document with the servitude. No fee is charged for this consent, only R75,00 for the registration of the servitude. For further examples of similar situations see paragraph 4.11 of Chief Registrar’s Circular No 3/1983.

1.1.4 When a sectional scheme is registered, R75,00 is charged for the registration of the sectional plan and R75,00 for each certificate of registered sectional title.

1.1.5 In all cases of doubt, the matter should be referred to the Registrar of Deeds for his decision. In all cases of doubt the ruling should favour the client.

2. Where statutory exemption exists, the onus to prove the exemption will be on the body or Department involved. For example, if one considers section 16 of the Land Bank Act (Act 13 of 1944) it is clear that where the Land Bank acquires property, it will be exempted but if property is sold by the Land Bank a fee will be charged. 2.1 In terms of section 52(15) of the Black Communities Development Act, 1984 (Act 4 of 1984), the registration of Leaseholds will be exempt from registration fees. The words, “..... no money other than such money as may be prescribed, shall be payable ...........”., only refers to money’s payable as prescribed in the said Act and regulations hereunder.

2.2 In view of what is said, para 2.1 supra the conversion of certain rights into leasehold in terms of Act No 81 of 1988, will also be exempt from registration fees. Conversion into ownership in terms of the said Act will in terms of section 5(3)(b) also be exempt from registration fees.

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3. An application for issuing a certified copy in terms of Regulation 68 will not be charged with a registration fee, but a fee of R1,00 per page as prescribed in the Schedule of fees of Office, will be payable. Due to the fact that the procedures to issue these copies differs in various offices, each Registrar must stipulate the procedures to charge these fees in his own office.

4. A facility will also be available whereby an Aktex user who wishes to order copies of documents for information or judicial purposes in terms of Regulations 66 and 67, can request the copy from any of the RSA Deeds Offices by fax and have the cost debited to his/her Aktex account.

The procedure would be as follows:

4.1 The Aktex user faxes the request to the appropriate Deeds Office, stipulating the required information as well as the Aktex account number (see annexure A).

4.2 The documents shall be prepared and mailed to the stipulated Aktex account address.

4.3 The cost involved shall be R1,00 per page and debited to the relevant Aktex account.

5. Registrars are requested to introduce security measures at their information sections to ensure that searches as requested by the conveyancers or their clerks will be debited against the correct account number.

6. Thank you for your co-operation.

CHIEF REGISTRAR OF DEEDS

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ANNEXURE A DEPARTMENT OF LAND AFFAIRS DEPARTEMENT VAN GRONDSAKE DEEDS OFFICE AKTEKANTOOR

REQUEST FOR DOCUMENT COPY (in terms of reg. 66 and 67) AANSOEK VIR DOKUMENT AFSKRIF (in terme van reg. 66 en 67)

FIRM NAME NAAM VAN FIRMA _________________________________________________________________POSTAL ADDRESS: POSADRES: ________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________

POSTAL CODE: AKTEX ACCOUNT NO: POSKODE: _______________________ AKTEX REKENINGNOMMER: ______________________ DOCUMENT NUMBER REQUIRED: NOMMER VAN VERLANGDE DOKUMENT: _____________________________________________ PROPERTY DESCRIPTION: EIENDOMSBESKRYWING ____________________________________________________________ SIGNED: DATE: GETEKEN: ______________________________ DATUM: ______________________________

FOR OFFICE USE/VIR KANTOORGEBRUIK_______________________________________PAGES/BLADSYE X R1,00 = R ___________________

DEBITED AGAINST THE ABOVE MENTIONED AKTEX ACCOUNT/GEDEBITEER TEEN BOSTAANDE AKTEXREKENING HANDTEKENING: ___________________________________________ DATUM: _____________

FAX/FAKS NO:DEEDS OFFICE/AKTEKANTOOR: Pretoria (012) 328-3347 Cape Town (021) 462-3529 Johannesburg (011) 336-7751 Vra vir faks/ask for faxPietermaritzburg (0331) 455-101 Bloemfontein (051) 484-523 King William’s Town (0433) 226-35 Kimberley (0531) 258-88 Vryburg (05391) 400-2

29



RESTITUTION OF LAND RIGHTS ACT, 1994 (ACT NO 22 OF 1994)

1. In terms of Proclamation R176/1994 the above Act came into operation on 2 December 1994.

2. Subsection (6) of section 11 provides that the registrar shall note the notice of a claim, which is to be published in the Gazette, in his records.

2.1 The said subsection reads as follows:

“(6) Immediately after publishing the notice referred to in subsection (1), the regional land claims commissioner shall -

(a) advise any other party which, in his or her opinion, might have an interest in the claim; and

(b) direct the relevant Registrar, as contemplated in section 102 of the Deeds Registries Act, 1937 (Act No 47 of 1937), for the area in which the land in question is situated to note in his or her records the fact that a claim for restitution of a right in the land has been instituted in terms of this Act.”

3. The said notice must be numbered and noted as an “Interdict” against the relevant property and in the registers/indices.

4. Save for the provisions in subsection (7) of section 11, the Act does not prohibit alienation or dealing with the relevant land or right in the land.

4.1 Whenever any act of registration is to be affected in respect of the relevant land or right therein, the conveyancer or notary must satisfy the Registrar, by means of a conveyancer’s or notary’s certificate, to the effect that the parties involved are aware of the claim under the Act. On subsequent registration of such a transaction the property will remain subject to the notice (“Interdict”) until withdrawn by either:

(a) the regional land claims commissioner [Sect 34(7)] or;

(b) an Order of Court [Sect 35(8)].

5. In terms of Section 35 the Land Claims Court (the “Court”) may order, inter alia,:

“(4) ... the restitution of a right in land or to grant a right in alternative .... land .... and to determine the form of title under which the right may be held in future”.

“(5) ... to expropriate land or a right in land...”

“(8) ... the Registrar concerned to remove any temporary note entered in his or her records in respect of the land in terms of section 11(6)(b).

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5.1 Notice should be taken of the fact that for the purpose of the Deeds Registries Act, 1937 (Act 47 of 1937) an order of the said Court shall have the same force as an order of the Supreme Court [Sect 35(7)].

6. In terms of Section 42 the Minister (being the Minister of Land Affairs) may direct that any transfer duty or other fees payable by a Claimant in respect of a transfer of land or a right in land in terms of the Act, shall be defrayed in full or in part from money appropriated by Parliament for the purpose [Sect 42(1)] or the Minister may in consultation with the Minister of Finance, direct that no transfer duty, stamp duty or fees shalbe paid in respect of a particular transfer under this Act [Sect 42(2)].

6.1 It is thus important to note that those exemptions are only granted upon a directive by the Minister, which directive will have to be lodged with the particular transfer of the land or a right in land.


31



REPEAL OF CIRCULARS

1. During the recent conference of Registrars, it was decided to repeal certain Chief Registrar’s Circulars in whole or partially. The following circulars are repealed to the extent as indicated:

Circular No Extent of repeal Conference Resolution No8/50 Whole 40/941/53 Whole 40/942/53 Whole 40/942/56 Whole 40/941/67 Whole 40/941/69 Whole 40/943/77 Paragraph 3.3 40/94

2. The wording in paragraph 1 of Chief Registrar’s Circular No 1/71 is hereby amended by deleting the words, “Existing bondholders’ Consents must be called for” and “Die toestemming van bestaande verbandhouers moet gevra word” in the English and Afrikaans wording, respectively. (See CRC 8/91 and CRC 40/94).

3. Due to a letter by the Director of the Department of Agricultural Economics and Marketing [No 01/05422(1)] dated 28 September 1990, a habitatio for less than 10 years would not be subject to the provisions of section 6A of Act No 70/1970. In consequence thereof, paragraphs 3 and 5 of Chief Registrar’s Circular No 11/1973 are hereby substituted with the following:

“3. It would appear that consents may be dispensed with where servitudes purporting to be rights of way for pipeline, electricity-conveyance, water furrows, road way or similar purposes, usufruct, usus and habitatios for a period of 10 years or less in favour of one person or body are tendered for registration.

5. In all cases not referred to in paragraph 3 e.g. habitatio for a period of more than 10 years, the Minister’s consent must be called for.”


32



CATEGORY I BUSINESS ACCOUNT: EXEMPTIONS OF PAYMENT OF REGISTRATION FEES

1. It has become necessary for budgeting and statistical purposes to categorize the various exemptions of payment of the prescribed registration fees for any particular act of registration. Five categories of exemptions are hereby introduced to facilitate these needs, viz:

1.1 Category No 1 This category relates to all registrations which qualify for a registration fee in terms of any provision in the Deeds Registries Act, 1937 (Act No 47 of 1937) or regulations hereunder.

1.2 Category No 2 This category relates to any registration which in terms of any “Housing” law would be exempted from the payment of registration or office fees.

1.3 Category No 3 This category could also be called the “RDP” category and refers to all the statutes by which ownership of land is made more easily available to the broad population. Existing laws pertaining to this category are listed hereunder. Certain exemptions for payment of registration or office fees are granted in the following:

• ConversionofLeaseholdtoFreeholdAct61/1952 • BlackCommunitiesDevelopmentAct,4/1984 • ConversionofCertainRightsintoLeaseholdorOwnershipAct,81/1988 • UpgradingofLandTenureRightsAct112/91 • LessFormalTownshipEstablishmentAct113/91 • ShortenedRegistrationProceduresofLand • AmendmentAct(HouseofRepresentatives)76/1993 • LandTitleAdjustmentAct111/1993 • ProvisionofCertainLandforSettlementAct126/1993 • RestitutionofLandRightsAct22/1994

1.4 Category 4 This category will refer to exemption of payments of registration and office fees as provided for in theproposedDevelopmentFacilitationAct(DFA).

1.5 Category 5 This category will refer to all other statutory exemptions of payment of registration or office fees, not provided for in categories 1 to 4.

2. Whenever examiners indicate an exemption of registration fees on a particular deed or document, the number of the applicable exemption category, as indicated in paragraphs 1.1 to 1.5, should also be added to such an indication.

33


3. Data typists will also have to add the category of exemption in the appropriate field while updating the records.

4. Procedural detail relating to paragraphs 2 and 3 (supra) will have to be determined by each Registrar to suit his office’s own circumstances.

5. If needed, the exemption categories may be extended, amended, or new categories added in future.


34


14. HOOFREGISTRATEURSOMSENDBRIEF NO 11 VAN 1995

WET OP DIE BEHEER OOR TRUSTGOED, 1988 (WET 57 VAN 1988)

1. Skynbaar bestaan daar verwarring en onsekerheid by Aktekontroleurs vanweë die gewysigde praktyk in die kantoor van die Meester van die Hooggeregshof met die toekenning van kodes aan inter vivos trusts en mortis-causa trusts.

2. Ten einde die aangeleentheid toe te lig, word Rondskrywe no 12 van 1994, uitgereik deur die Meester van die Hooggeregshof, hierby aangeheg vir u kennisname.


35


AANHANGSEL

RONDSKRYWE NO 12 VAN 1994 WET OP DIE BEHEER OOR TRUSTGOED, 1988 (WET NO 57 VAN 1988) MAGTIGINGSBRIEWE

1. Vanaf 1 Januarie 1995 word inter vivos trustlêers in nommervolgorde geïdentifiseer. Die laaste twee syfers sal die jaartal verteenwoordig, byvoorbeeld 1/95. ‘n Numeriese register word vir hierdie doeleindes bygehou.

2. Terselfdertyd word ‘n aparte alfabetiese register bygehou. Vir doeleindes hiervan word die lidwoord “die” waar dit verskyn aan die begin van die naam van ‘n trust, geïgnoreer. Waar nodig word kruisverwysings in die alfabetiese register aangebring.

3. Vir doeleindes van onsekerheid tussen inter vivos trusts en testamentêre (mortis causa) trusts, word hoofletters IT voor die nommer op die omslae van inter vivos trusts aangebring.

4. Hoofletters IT word voor die nommer op magtigingsbriewe van inter vivos trusts aangebring. In die geval van testamentêre (mortis causa) trusts word hoofletters MT voor die nommer op magtigingsbriewe aangebring.

5. In die geval van testamentêre (mortis causa) trusts kan dit gebeur dat een testateur meerdere trusts skep wat verwarring kan meebring. Indien Meesters vroegtydig met voorstelle versoek word, sal die nodige onderskeidende woorde of merke op magtigingsbriewe aangebring word. ‘n Praktiese moontlikheid is om die trustbegunstigde(s) deel van die naam van die trust te maak, byvoorbeeld die JAN BOOYSEN (RIAAN) TESTAMENTêRE TRUST of die gebruik van nommers, byvoorbeeld die JAN BOOYSEN (NOMMER 1) TESTAMENTêRE TRUST.

GetekenJ J DIXONSENIOR ADJUNK-MEESTER VAN DIE HOOGGEREGSHOF

36



RATIONALISATION: INCORPORATION OF RECORDS OF RATIONALISED REGISTRY INTO RECEIVING REGISTRY

To ensure a uniform and smooth procedure with regard to the incorporation of records as a result of the rationalisation process, the following instructions are hereby issued:

1. REGISTRATION OF GRANT RIGHTS

It has been decided that all registrations of grant rights in terms of the provisions of Proclamation No R293 of 1962 and Proclamation No R188 of 1969 etc must be identified by adding the letter G to the existing codes in use in all registries before the serial number. It therefore follows that the following codes must be issued:

(a) Land titles and transfer of land by endorsement = TG (b) Bonds = BG (c) Contracts = KG (d) Dealings with bonds and miscellaneous = BCG

This step is necessary to identify the registration of the grant rights in terms of the above mentioned Proclamations for statistical purposes. Existing title deeds for grant rights received by a receiving registry must be similarly coded before it is taken up in your records.

NB! It is also important to note that whenever the client’s copy of such a document is submitted, the examiner must suitably note the coding thereon.

2. For the purpose of proper identification for the origin of all documents received it is also necessary to add the following identification code after the serial number:

Bophuthatswana = BP Venda = VN Ciskei = CS Gazankulu = GZ KaNgwane = KN KwaZulu = KZ KwaNdebele = KD Lebowa = LB QwaQwa = QQ

Likewise the records received by the office at Pietermaritzburg in respect of the Pongola-area must be coded as follows:

Pongola = PN

37


NB! (i) It is also important to note that whenever the client’s copy of such a document is submitted, the examiner must suitably note the coding thereon. (ii) This only applies in respect of the registered documents received. For new lodgements, these codes must be ignored.

3. MICROFILMING OF RECORDS

3.1 All documentation with regard to properties/rights in properties situated in the former Self Governing Territories, received by a receiving registry, must be microfilmed where such a system exist. Should there be any reason why this is feasible, approval must be obtained from the Office of the Chief Registrar of Deeds.

3.2 With regard to the records received from the former TBVC-States, the principle of filming the documents only when dealt with, is re-confirmed.

4. BOPHUTHATSWANA

(a) The resolution taken at the Workshop on Rationalisation, held on 9 and 10 September 1996 that Antenuptial Contracts, BC’s and Notarial Bonds must be transferred to the office where the majority of the records will be transferred (i.e. Pretoria), is hereby confirmed.

(b) With regard to General Powers of Attorney, the resolution taken on 9 and 10 September is revoked. Instead, certified copies of these instruments must be issued for use in Bloemfontein and Vryburg whilst the original will be filed in Pretoria.

(c) In the case of all land titles, bonds, contracts etc which contain properties which now fall within the area of jurisdiction of different offices, a copy thereof must be issued for use in the relevant office and that copy must be endorsed as follows:

“Copy issued for use in ......................... office in respect of para .............. only” The original of such a document must be suitably endorsed to the effect that such copies were issued.

5. Whereas the office at Umtata is presently not linked to the computerized database and do not have a complete record of interdicts (ie liquidations and sequestrations) at their disposal, an affidavit by the registered owner must be called for with regard to the fact of non-insolvency/liquidation. This will be an interim measure.

6. These measures are deemed important to ensure proper future identification and statistics with regard to these records. Your cooperation is appreciated.


38



WITHDRAWAL/AMENDMENT TO CHIEF REGISTRAR’S CIRCULARS

In terms of Resolutions taken at the Registrar’s Conference held on 6 - 7 June 1996, please note the following withdrawals/amendments to existing Chief Registrar’s Circulars.

1. CONFERENCE RESOLUTION NO 22.1 OF 1996

Chief Registrar’s Circular No 17/1990 is hereby withdrawn.

2. CONFERENCE RESOLUTION NO 34 OF 1996

Chief Registrar’s Circular No 5 of 1994 is amended as follows:

(a) Item 4.5.2 is substituted with the following: “Except in cases referred to in item 4.5.3, no reference to the retention or exclusion of the marital power of the husband must be made in deeds and documents. Such reference should be regarded as pro non scripto and deeds must not be rejected for that reason”.

(b) Item 4.5.3. Delete the last word “omitted” and substitute it by “included in the deeds”.

(c) Item 7.2(a). Substitute it with the following: “(a) Any reference to the exclusion of the community of property and the marital power due to testamentary disposition or otherwise, must be inserted”.

(d) Item 7.3(a). Substitute the word “must” for the word “may”.

3. CONFERENCE RESOLUTION NO 45 OF 1996

Item 6.4 of Chief Registrar’s Circular No 8 of 1989 is substituted by the following:

“6.4Partyegetroudbuitegemeenskapvangoedere-Artikel22(6)vandieSwartAdministrasiewet 38/1927.

AangesiendieWetopHuweliksgoedere,1984,Wet88van1984nouindienasionalegrondgebied van die RSA van toepassing gemaak is, moet partye as sulks getroud, slegs beskryf word as “getroudbuitegemeenskapvangoedere”.

“6.4Partiesmarriedoutofcommunityofproperty-Section22(6)oftheBlackAdministration Act38/1927.

Whereas the Matrimonial Property Act, 1984, Act 88 of 1984 has now been made applicable in the national territory of the RSA, parties married as aforesaid must be described only as “married out of community of property”.


39



AMENDMENT: LODGEMENT COVERS

1. It has come to my attention that in certain instances batches of deeds are being executed without the consent or knowledge of the particular conveyancer attending to certificates of title, notarial deeds as well as the cancellation, release, etc. of existing mortgage bonds and sectional bonds. This situation causes great concern and even financial loss to the conveyancer and the parties involved. To solve this problem the responsible conveyancer in future will have to request registration for all the abovementioned transactions. For obvious reasons antenuptial contracts are excluded.

2. See Annexure A for an example of the suggested format of the new cover which will become compulsory with effect from 1 August 1997. However existing lodgement covers, which do not conform the new format, may be used until existing stocks are depleted, provided that they are suitably endorsed by means of a rubberstamp in the format of Annexure B. See Annexure C for the placement thereof on the cover to ensure uniformity of practice.

3. Please note that although the suggested new format attached is on white paper the present arrangements in your office with regard to the colour of lodgement covers are not affected.


40


REGISTRASIE – REGISTRATION A

B

A. VIR AKTEKANTOOR GEBRUIK/FOR DEEDS OFFICE USE Datum van indiening/Date of lodgement:

Ondersoekers/Examiners Kamer/Room Skakeling/Linking Verwerp/Reject

Passeer /Pass

123

B. (a) VIR AKTEBESORGER SE GEBRUIK/FOR CONVEYANCER=S USE

Verwysings No./Reference No. Skakeling/Linking

GELYKTYDIGES/SIMULS

Kode/Code Name van Partye/Names of Parties Firma/Firm No No. instel/ batch Aktes ingedien/

Deeds lodged

123456789

101112

(b) GELYKTYDIGES MET ANDER REGISTRASIEKANTORE/DEELTITELS:

SIMULS WITH OTHER REGISTRIES/SECTIONAL TITLES:

Kode/Code Firma/Firm Eiendom/ Property Kantoor/Office

1234

Registrasie versoek deur:Registration request by:

DATUM:DATE:

41


REGISTRASIE – REGISTRATION C

A. VIR AKTEKANTOOR GEBRUIK/FOR DEEDS OFFICE USE Datum van indiening/Date of lodgement:

Ondersoekers/Examiners Kamer/Room Skakeling/Linking Verwerp/Reject

Passeer /Pass

123

Registrasie versoek deur:Registration request by:

DATUM:DATE:

B. (a) VIR AKTEBESORGER SE GEBRUIK/FOR CONVEYANCER=S USE

Verwysings No./Reference No. Skakeling/Linking

GELYKTYDIGES/SIMULS

Kode/Code Name van Partye/Names of Parties Firma/Firm No No. instel/ batch Aktes ingedien/

Deeds lodged

123456789

1011121314151617181920

(b) GELYKTYDIGES MET ANDER REGISTRASIEKANTORE/DEELTITELS: SIMULS WITH OTHER REGISTRIES/SECTIONAL TITLES:

Kode/Code Firma/Firm Eiendom/ Property Kantoor/Office

1234

42



NAME OF CLOSE CORPORATIONS

1. Chief Registrar’s Circular 8 of 1997 is hereby withdrawn.

2. Notwithstanding the fact that for purposes of the Close Corporation Act, 1984 (Act No 69 of 1984), the name of a close corporation now also includes a shortened form of the full registration name (see the definition of “name” in section 1 of the Act as inserted by section 1(b) of the Close Corporation Amendment Act, 1997 (Act No 26 of 1997)), only the full name may, in view of the provision of regulation 24(1)(b) of the Deeds Registries Act, 1937 (Act No 47 of 1937), be used in deeds and documents tendered for execution or registration in a deeds registry.

3. In terms of section 22 of the Close Corporation Act, 1984, as amended by the Close Corporation Amendment Act, 1997, the abbreviation “CC” or the equivalent in any one of the other official languages must be subjoined to the name of a close corporation.

The following terms for “close corporation” and suitable abbreviations therefore in the other official languages have been published in Government Gazette No 18208 of 22 August 1997 under General Notice 1225 of 1997, viz:

LANGUAGE TERM FOR CLOSE CORPORATION ABBREVIATION Sepedi Kgwebo e Kgotlangantswego KK Setswana Dikoporasi tse di Tswaletsweng KT siSwati LiBhizinisi leliValekile BV Sesotho Kgwebo e Lekanyeditsweng KL Tshivenda Dzikoporasi dzo valiwaliwaho KV Xitsonga Ntirhisano wa Nhlangano NH Afrikaans Beslote Korporasie BK isiNdebele Ikampani yaba-Thileko KT isiXhosa Inkampani yabamBalwa KB isiZulu iKhamphani yabamBalwa KB


43



SOUTH AFRICAN REVENUE SERVICE ACT NO 34 OF 1997

1. The South African Revenue Service is established by section 2 of the Act.

2. In terms of section 5(1)(d) of the Act the South African Revenue Service may acquire or dispose of any right in or to movable or immovable property, which may include ownership.

The term “right” is not defined in the Act. Therefore, when applied in conjunction with the Deeds Registries Act No 47 of 1937, it must be interpreted bearing the same meaning as “real right”.

Property acquired by the South African Revenue Service must vest in:

• “The South African Revenue Service Established by section 2 of the South African Revenue ServiceActNo34of1997”.

3. In terms of section 32 of the Act no transfer duty is payable by the South African Revenue Service in respect of the acquisition of any property, and no stamp duty is payable in respect of any instrument if stamp duty would be payable in terms of the applicable legislation.

4. The Act takes effect on a date fixed by the President by proclamation in the Gazette.

SignedACTING CHIEF REGISTRAR OF DEEDS

44



AMENDMENT OF SECTION TITLES ACT 95 OF 1986

The Sectional Titles Act, 1986 (herein referred to as “the Act”), has been amended by the Sectional Titles Amendment Act, 1997 (Act No 44 of 1997), and the regulations framed in terms of section 55 of the Act have been amended by Government Notice R1422 published in Government Gazette No 18387. The amended sections came into operation on 3 October 1997 and the regulations on 31 October 1997.

Act 44 of 1997 inter alia removed the involvement of local authorities in respect of applications for sectional title schemes, extension of sections, etc. Numerous amendments relate hereto, but as these amendments do not have an effect on any registration matter, it will not be addressed herein.

A. AMENDMENTS TO THE ACT

1. Section 1

1.1 Definition of “court” This substitution will enable the owner of a unit to approach a Magistrate’s court instead of the High court in the application of section 44.

1.2 Definition of “lease” Bydefiningtheword“lease”,anyuncertaintyrelating to themeaningthereof insection17(1) is removed. It further provides for the opportunity to extend the powers of trustees in section 38(i) by allowing them to lease part(s) of the common property to a member(s) for periods other than a long lease.

1.3 Definition of “owner” Section 17(1) provides that “The owners may be unanimous resolution....” It was therefore possible fora lessee contemplated inparagraph (b)of the substituteddefinitionof “owner” in section 1 of the Act, to consent to the alienation of the ownership of the registered owner. Elsewhere in section 17 there were further references to “owners” that more or less have the effect as previously referredtoandthereforethedefinitionof“owner”wasamendedtocorrespondwiththedefinition in the Deeds Registries Act, 1937 (Act No 47 of 1937).

1.4 Definition of “sectional mortgage bond” Commonpropertyincludeslandandthereforethedefinitionwasamended.

2. Section 9 Section26oftheAlienationofLandAct68/81coverstheissue,andthereforethissectionisrepealed.

3. Section 11(3)

3.1 Section 11(3)(b) Due to the amendment of, inter alia section 4, a local authority or the Premier cannot impose or create conditions in the schedule of conditions, contemplated in section 11(3)(b). Nothing

45


preventsalocalauthorityfromimposingconditionssimultaneouslywiththeissueofacertificate wherebynon-compliancewiththeprovisionsofsection4(5)arecondoned.Suchconditions,if registerable, must however be created by means of a notarial deed in terms of the Deeds Registries Act 1937, (Act 47 of 1937).

Transitionalprovision:

The application is made for the registration of a sectional plan and opening of a sectional title register in respect of a scheme approved by a local authority in terms of section 4 prior to its amendment, the section11(3)(b) certificatemust still contain the conditions, if any, imposed by such authority or Premier. This provision will therefore apply to all instances where sheet 1 of the sectional plan contains a local authority reference.

3.2 Section 11(3)(d) The reason for the insertion of the proviso in section 11(3)(d) is to address those instances where a sectional title scheme is to be registered over separate pieces of land, and such land parcels are subjecttodifferentbonds. Ininstanceswherethisprovisofindsapplication,formWWtothe regulations of the Deeds Registries Act must be used.

3.3 Section 11(3)(fA) Section11(3)(fA)hasbeenrepealed.

Transitionalprovision: If application is made for the registration of a sectional plan and opening of a sectional title register in respect of a scheme approved by a local authority in terms of section 4(5A), prior to the amendment, it will still be necessary to lodge a certificate contemplated by the repealed section 11(3)(fA) with the application in terms of section 11.

4. Section 15A The wording of this section has been brought into line with the wording of section 15A(1) and (2) of the Deeds Registries Act. 5. Section 15B(3)

5.1 Section 15B(3)(a) and (b) Thereasonfortheamendmentofsection15B(3)istoensurethatallmoniespayabletoabody corporate, have been paid or secured up to the date of registration of the transfer of a unit.

The insertion of the words “that on date of registration” in the said section is, however, misplaced, with the effect that conveyancers must now also certify that on date of registration there is no right of extension registered, etc. This contradicts section 25 as that in terms thereof the date of the contract of alienation is the criteria. Inviewoftheabove,acertificateintermsofsection15Bmustbeacceptedifitreferstothefact that at date of registration all monies payable to the body corporate has been paid or secured etc. Itisthusnotnecessarytolinkthewords“atdateofregistration”witharightofextension.

46


If the registration of transfer of a unit will result in the establishment of a body corporate, a clearancecertificatefromthelocalauthoritythatallratesandmoneysduetosuchlocalauthority have been paid, must be lodged. Such a clearance certificate will also have to be lodged if provision is made by law for the separate rating of units.

5.2 Section 15B(3)(c) An affidavit in terms of the above subsection can now also be made by an agent of a developer (seedefinitionof“developer”).

6. Section 15B(6) This provision is now incorporated in regulation 40 (see paragraph B3 below).

7. Section 17

7.1 Section 17(1) The amended section 17(1) now requires a unanimous resolution to alienate or let common property by the owner and the holder(s) of a right of extension. If the whole of the right of extension is however affected by such alienation, the right of extension will have to be cancelled. If only a portion of such right is effected, the right can be dealt with in accordance to section 25(4)(b), i.e. cession of such portion to the body corporate and the cancellation thereof in terms of section 17(1).

7.2 Section 17(3)(a) It is no longer a requirement under section 17(3)(a) to obtain the consent of bondholders for registration of transfer of the land comprised by the scheme. This provision was superfluous due tothefactthatsection18makestheprovisionsofsection56and57oftheDeedsRegistriesAct, 1937mutatismutandisapplicabletotransfersbyvirtueofsection17.Bondsmustthereforebe disposed of in terms of section 18.

7.3 Section 17(3)(b) According to this subsection the Registrar of Deedsmust now not only inform the Surveyor General of reversions to the land register, but also the local authority.

7.4 Section 17(3)(c) It is no longer a requirement to obtain the consent of bondholders for the registration of notarial leases over the land comprised by a scheme. This Act is now silent regarding bondholders’ consent, and therefore the provisions of section 77(2) of the Deeds Registries Act apply (see section 3(1) of the Act).

7.5 Section 17 - General It is not feasible to refer individually to each amendment to section 17, due to the number of amendments therein, as well as the nature thereof.

The following, however, serve as guidelines regarding the registration of the different types of transactions under this section:

47


7.5.1 Transfer of all the land in a scheme

7.5.2 Transfer of portion of land with sections and rights i.t.o. sections 25 and 27 thereon

7.5.3 Transfer of portion of land with part of a section situated thereon

7.5.4 Lease i.r.o. all the land comprised by a scheme

(a) Transfer of land: Deed of transfer (section 17(3)(a))

(b) Sectional title deed: Cancel (section 17(3)(a)))

(c) Bonds over units: Must be disposed of (section 18)

(d) Right i.t.o. section 25: Right must be cancelled (section 17(1))

(e) Right i.t.o. section 27: Right must be cancelled (section 17(5))

(f) Other real rights over units: Right must be cancelled (section 17(5))

(g) Other real rights, excluding mineral rights: Must be endorsed (section 17(5))

(h) Notification: Surveyor General and local authority (section 17(5))

(i) Sectional plan: Cancel (section 17(6))


(b) Sectional title deed of such unit: Cancel (section 17(4)(a))

(c) Bonds over all units in the scheme: Must be disposed of (section 18)

(d) Right i.t.o. section 25: If affected by the land transferred, the right must be cancelled (section 17(1))

(e) Right i.t.o. section 27: If affected, it must be cancelled (section 17(4B))

(f) Other real rights over such units: Must be cancelled (section 17(5))

(g) Notification: Surveyor General and local authority (section 17(3)(b))

(h) Diagram i.r.o. the land: Approved diagrams must be lodged (section 17(3)(a))


(b) Sectional title deed: Endorse re amendment of description of property and extent (section 17(4A)(b))

(c) Bond over such unit: Bond must be disposed of (section 18)

(d) Right i.t.o. section 25: If affected by the land transferred, the right must be cancelled (section 17(1))

(e) Right i.t.o. section 27 If affected, it must be cancelled (section 17(4B))

(a) Cession: Notarial deed of lease (section 17(3)(c))

(b) Bonds over units: Not addressed, therefore the provision of section 77(2) of Act 47 of 1937 apply

(c) Endorsing: Schedule of conditions contemplated by section 11(3)(b) (section 17(3)(c))

48


7.5.5 Lease i.r.o. a portion of land on which units are situated

8. Section 19 The amendment is consequential to the amendment of section 17 supra.

9. Section 21 The consent by the trustees of the body corporate for consolidation or subdivision of a section must be obtained before submitting the draft sectional plans to the Surveyor General for approval. The lodgement of such consent is therefore unnecessary on registration of the sectional plan of or consolidation.

Transitional provision: The transitional provision in 3.1 supra applies mutatis mutandis.

10. Section 23 and 24 A local authority or the premier cannot impose or create conditions and therefore no schedule of conditions is required when a section is subdivided or consolidated.

Transitional provision:The transitional provision in 3.1 supra applies mutatis mutandis. 11. Section 24 The approval of the body corporate authorised by a special resolution of its members in case of extension of a section, must be obtained before submitting the draft sectional plan to the Surveyor General for approval. The lodgement of such consent is therefore unnecessary on registration of the sectional plan of extension of the boundaries of a section.

The consent of the holders of bonds registered over units in the scheme need no longer be lodged for the registration of the extension of the boundaries of a section provided a conveyancer certifies that there is not a deviation of more than 5% in the participation quota of a section or sections as a result of the extension. If the deviation is more than 5%, a certificate by a conveyancer is required stating that the mortgagee of each section in the scheme has consented to the registration of the sectional plan of extension.

Due to the fact that local authorities are no longer involved in the approval of extension of sections, the provision of section 24(6)(b) must not be enforced. This subsection will be repealed in the next Amendment Act.

(a) Cession: Notarial deed of lease (section 17(3)(c))

(b) Bonds: Not addressed, therefore the provision of section 77(2) of Act 47 of 1937 apply

(c) Endorsing: Schedule of conditions contemplated by section 11(3)(b)

(d) Diagrams: Diagram of the portion of the land must be lodged (section 17(3)(c))

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12. Section 25 The division of a real right of extension is now formulated unambiguously in section 25(4)(b). The procedure pertaining to the cession of a portion of the right and the identification of such portion will be addressed in a separate circular.

From the wording of the amended section 25(6) it is now possible for bodies corporate to extend schemes in terms of this section in respect of land acquired in terms of section 26 of the Act, subject, however, to the provisions of section 4(2).

The newly inserted section 25(6A) provides for the reservation by a developer of a right of extension, if no reservation was made with the application for the opening of the sectional title scheme. Such reservation, however, cannot be made after the establishment of the body corporate. Furthermore, such reservation cannot be made if it will have the effect of creating or reserving a further right of extension or the “extension” of such reserved right.

Upon application, (form B), by a developer, accompanied by the sectional mortgage bond(s), the written consent of bondholders, the documents contemplated in section 25(2) and the certificate contemplated in regulation 29, a certificate of real right (form F) must be issued subject to any sectional bond against the land.

Note that, with the application of this section, a distinction is made between bonds deemed to be sectional mortgage bonds and sectional mortgage bonds registered in terms of section 15B(1) of the Act, with the effect that only bonds deemed to be sectional mortgage bonds must be lodged. The consent of all bondholders must, however, be lodged.

13. Section 26 A body corporate can now also use this land to extend the scheme by the addition of sections, subject to the provisions of section 4(2).

14. Section 27 The newly inserted section 27(1A) provides for the reservation by a developer of a right to exclusive use areas where no such reservation was made with the application for the opening of the sectional title scheme. Such reservation, however, cannot be made after the establishment of the body corporate. Furthermore, such reservation cannot be made if it will have the effect of creating or reserving further rights of exclusive use areas.

Upon application (form B) by the developer, accompanied by the sectional mortgage bond(s), the written consent of bondholders and the certificate contemplated in regulation 29, a certificate of real right (form G) must be issued, subject to any sectional bond against the land.

Note that with the application of this section, a distinction is made, similar to section 25(6A), between bonds deemed to be sectional mortgage bonds and sectional mortgage bonds registered in terms of section 15B(1) of the Act.

15. Section 27A This section makes it possible for a developer or body corporate to make rules which entitle members of the body corporate to the exclusive use and enjoyment of parts of the common

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property. These rules must be accompanied by a layout plan to scale and a schedule indicating to which member such part is allocated. Although this section inter alia refers to the reservation by a developer in favour of members, one must remember that, in terms of section 35(4), the rules only apply as from date of establishment of the body corporate.

Furthermore, it is not a requirement to disclose the name of a member in the schedule supra. A reference to “the member as owner of section.....” should suffice.

Rules made by a developer in terms of this section must be examined by the Registrar of Deeds as the provisions of section 35(5) only apply to bodies corporate.

Rights created in terms of this section are not real rights and can therefore not be mortgaged.

16. Section 34 This section deals with the transfer of a developer’s interest in a scheme and the amendment to this section merely serves as confirmation that rights in terms of section 25 and 27 must be transferred by means of a bilateral notarial deed. 17. Section 35 In terms of the amended section 35(5), a Registrar of Deeds is not required to examine or note any substitution, addition, amendment or repeal of rules against any certificate or other document. It is important to note that this provision only applies to substitution etc. of rules by a body corporate. Therefore, if rules are substituted etc. by a developer, it is still a registrar’s responsibility to examine such amended rules.

It is now also stated categorically that a registrar is not involved in the enforcement or application of rules.

Deed controllers will not have to endorse the certificate contemplated in section 11(3)(e) regarding amendments to the rules. No registration fee is payable as there is no act of registration involved. The notification must still be prepared according to Form V and must be referred to the relevant section for filing. It need not formally be lodged.

18. Section 60 Prior to the amendment of section 60(1), the situation was as follows, viz:

(a) Sectional plans could be registered in respect of development schemes approved by a local authority in terms of the Sectional Titles Act, 1971, notwithstanding the repeal thereof.

(b) A right of extension of a building acquired in terms of section 18 of the Sectional Titles Act, 1971, could be exercised in terms of the said Act, notwithstanding its repeal. Furthermore, a developer had a choice to exercise such right under the said Act or under the Sectional Titles Act, 1986.

The amendment to section 60(1) brought about the following changes:

• Inrespectof(a)supra: Such plans must be registered within 24 months as from the 3rd October 1997, or such extended period as may be prescribed by regulation.

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• Inrespectof(b)supra: Such right may only be exercised in terms of the Sectional Titles Act, 1986, and prior to exercising such right a certificate of real right must be obtained. In order to obtain such a certificate, the right to extend must vest in the developer i.e. he must still be the owner of the “golden unit”. Furthermore, he must comply with the provisions of section 25(2) of the Act, and a certificate by a conveyancer must be provided stating that the consent of all owners of units in the scheme and of all mortgagees to the proposed extension have been obtained.

Such certificate must be obtained within 24 months as from the 3rd October 1997 or such extended periods as may be prescribed by regulation, failing which the right to obtain such a certificate (and therefore also the right to extend) will lapse. No form has been prescribed regarding the above application or certificate of real right, seeing that section 60(1) is only a transitional measure. The following forms will suffice:

IN RESPECT OF THE APPLICATION:

Prepared by me

_____________________________ Conveyancer/Attorney/Notary (Initials and surname)

APPLICATION

I, the undersigned,

the developer of the scheme .....SS.....which was registered on ............................ and in respect whereof section ...... is still registered in my name, hereby apply in terms of section 60(1)(b)(i) of the Sectional Titles Act, 1986 (Act 95 of 1986), for the issue of a certificate of real right as contemplated in section 12(1)(e) of the said Act.

___________________________ Developer

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IN RESPECT OF THE CERTIFICATE:

Form F Prepared by me ___________________________________ Conveyancer ___________________________________ (State surname and initials in block letters)

CERTIFICATE OF REGISTERED REAL RIGHT UNDER **SECTION 12(1)(e)/25(6A)/60(1)(b) OF THE SECTIONAL TITLES ACT, 1986

Whereas ___________________________ (hereafter called the developer)

**(i) has applied for the registration of a sectional plan in terms of Section 11(1) of the sectional title Act, 1986, and whereas the developer has reserved for himself the right to extend the scheme as contemplated in section 25(1) of the Act;

**(ii) is the registered owner of all the units in the undermentioned scheme and no right of extension was reserved at the time of registration of the sectional plan. The developer is now desirous of reserving such right.

**(iii) is the holder of a right of extension acquired in terms of section 18 of the Sectional Titles Act, 1971, ** and held under certificate of real right No_____

Now, therefore, in pursuance of the provisions of the said Act I, the Registrar of Deeds at _______________do hereby certify that the developer or his successor in title is the registered holder of the right to erect and complete from time to time within a period of _______________ for his personal account *______________________ on the specified portion of the common property as indicated on the plan referred to in section 25(2)(a) of the Act filed in this office, and to divide such building or buildings into a section or sections and common property, and to confer the right to exclusive use over portion of such common property upon the owner of one or more units in the scheme known as ________________________ in respect of the land and building or buildings situate at +______________________________ and shown on Sectional Plan No. SS___________________________

Signed at ___________________________on_______________________

Seal of Office _________________________________ Registrar of Deeds

* State which rights i.e. section 25(1)(a), (b), (c), are reserved+ State name of township/suburb and local authority** Omit whichever is not applicable

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B. AMENDMENTS TO THE REGULATIONS

1. Regulation 16C Regulation 16C of the Act, which deals with the responsibility the preparer of a deed or document accepts, has been brought into line with regulation 44A of the Deeds Registries Act, 1937 (Act No 47 of 1937).

2. Regulation 29 Section 25 and 26 of the Act have been amended by the insertion of subsections 25(6A) and 27(1A) whereby a developer may obtain certificates of certain real rights after the opening of a sectional title register, but prior to the establishment of a body corporate. It is, however, also necessary to protect the rights of persons whom, at the time of application for the issue of certificates of real rights in terms of the said section 25(6A) and 27(1A), have already entered into deeds of alienation with the developer. The conveyancer will therefore have to certify that no unit in the scheme has been alienated, or if it has been alienated, that the purchasers have been notified of the issuing of the certificate of real rights concerned.

3. Regulation 40 Due to the fact that subsection 15B(6) of the Act is repealed, subregulation 40(1) had to be amended in order to provide for the aspects previously contained in the said section 15B(6).

4. Form B The addition of sections 25(6A) and 27(1A), [see paragraphs A.11 and 13 supra], to the Act, necessitated the substitution of the form.

5. Form F Form F is substituted for a form which now also provides for the issuing of a certificate in the circumstances of the newly inserted section 25(6A) [see paragraph A.11 supra].

6. Form G Form G is substituted for a form which now also provides for the issuing of a certificate in the circumstances of the newly inserted section 27(1A) [see paragraph A.13 supra].

7. Form H The form has been amended to provide for:

(i) Gender forms

(ii) Full description of each section in paragraph 3. The amendment eliminates the necessity of checking sectional plans when dealing with sections.

(iii) Where all the right, title and interest are being transferred, provision has now been made to include the section number and extents in separate paragraphs. However, footnote “+” to the form appears to be incorrect as it refers to “unit”. Only the section number and extent must be reflected and not the description of the unit. Reference to the undivided share in the common property must be set out at the end of the last paragraph describing the section.

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8. Annexure 3 The amendment to the wording of regulation 35(2) necessitates the repeal of Annexure 3 to the regulations.

9. Annexure 6

9.1 Subparagraph (3) in paragraph A It is essential that the certificates issued by the body corporate are valid as at the date of registration of transfer. The amendment covers this aspect.

9.2 Subparagraph (2) in paragraph B The amendment clarifies any uncertainties regarding documents to be filed on the conveyancer’sfileinrespectofsectionalmortgagebonds.

9.3 Subparagraph (3) in paragraph B The consent in terms of section 15(2)(a) of the Matrimonial Property Act, 1984 (Act No 88 of 1984),mustbefiledintheconveyancer’sfile.

10. Annexure 8 Annexure 8 now also provides for dispute settlement and amends certain rules to ease the workability thereof.

Note that rule 71(4) provides that, in case of determination of a dispute by arbitration, the Registrar of Deeds for the deeds registry in which the scheme is registered, or his or her nominee, shall in writing appoint an arbitrator if the parties cannot agree as to the arbitrator. A written application must be submitted to the Registrar and the prescribed fee must be paid. Registrar of Deeds will have to compile a list of persons who are independent, suitably experienced and qualified, who can be considered for appointment as arbitrator. The relevant Law Societies, Council of Land Surveyors and Council of Architects, for example, will be able to assist the Registrars in this regard.


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NATIONAL ARTS COUNCIL ACT, 1997 (ACT 56 OF 1997)

1. The above Act was published on 14 November 1997 in Government Gazette No. 18426, and shall come into operation on a date fixed by the President by proclamation in the Gazette.

2. In terms of section 2 of the Act, a juristic person to be known as the National Arts Council is established.

3. Acquisition of property The Council may, in terms of section 6(1)(n) of the Act, purchase or otherwise acquire, or possess, hire, alienate, let, pledge or otherwise encumber movable and, with the approval of the Minister responsible for Art and Culture, granted with the concurrence of the Minister of Finance, immovable property.

If the council is a party to a deed, the Minister’s approval must not be lodged as a supporting document, but must, in view of the provisions of regulation 44A of the Deeds Registries Act, 1937 (Act 47 of 1937), be retained by the preparing conveyancer.

The Council must be described in a deed as follows: “NATIONAL ARTS COUNCIL (Established in terms of section 2 of Act 56/1997)”

4. Transfer of rights in terms of section 20(1)

4.1 At the commencement of section 20(1) of the Act, all the rights and liabilities of the company known as the National Arts Council, incorporated in terms of section 21 of the Companies Act, 1973, (registration number 89/01413/08), shall pass the Council established in terms of the above Act.

In respect of immovable property which passed to the Council in terms of section 20(1), Registrars of Deeds must, at the request of the Council, make the necessary entries or endorsements regarding the transfer of the property (see section 20(2)).

4.2 In order to give effect to the provision of section 20(2), the following documents must be lodged, viz:

• Request by the Council (Section 20 of Act 56/1997) • Title deed of the property (regulation 51(1) of Act 47/1937) 4.2.1 The title deeds in respect of immovable property (excluding limited real rights) must be endorsed as follows:

“Endorsement in terms of section 20(2) of Act 56 of 1997 In terms of section 29(1)(b) of the above Act, the within property has passed to the National Arts Council (Established in terms of section 2 of Act 56 of 1997).

Application/Request filed with T ___________________________ Registrar of Deeds”

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4.2.2 The title deed in respect of limited real rights, e.g. bonds, must be endorsed as follows:

“Endorsement in terms of section 20(2) of Act 56 of 1997 In terms of section 20(1)(b) of the above Act, all the right, title and interest in respect of (insert the nature of the limited real right, e.g. bond) has passed to the National Arts Council (Established in terms of section 2 of Act 56 of 1997).

Application/Request files with *BC __________________________ Registrar of Deeds”* (Insert relevant code)

5. “Transfer” of liabilities in terms of section 20(1)

5.1 Although section 20(1)(b) provides that all the rights and liabilities shall pass to the Council, section 20(2) provides only for the endorsement of the title of immovable property (i.e. rights) to reflect the transfer. Immovable property is not defined in the Act, and therefore the common law meaning must be attached thereto.

5.2 In respect of liabilities, i.e. bonds registered over immovable property supra, the “title” thereof must be endorsed as follows:

“Endorsement in terms of Section 3(1)(v) of Act 47 of 1937 In terms of section 20(1)(b) of Act 56 of 1997, the National Arts Council (Established in terms of section 2 of Act 56 of 1997) is now the mortgagor under this bond.

__________________________ Registrar of Deeds”

5.3 No application, consent or request is required in this regard, but the client copy of the bond must be lodged simultaneously with the request in 4 supra. 5.4 No dealings with a bond, except cancellation thereof, by a mortgagee in a bond hypothecating immovable property registered in the name of the company known as the National Arts Council (89/01413/08) may be registered, unless such bond has been endorsed in terms of section 20(2) of Act 56 of 1997.

6. In terms of section 20(3) of the Act, no transfer duty, stamp duty or tax or fee of office is payable in respect of item 4 and 5 supra.

7. Arts and culture is a functional area of concurrent legislative competency between central and provincial governments. The Council supra must therefore not be confused with similar councils that might be created by provincial acts.


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CATEGORY 1 BUSINESS ACCOUNT: EXEMPTIONS FROM PAYMENT OF REGISTRATION FEES

1. PURPOSE OF CIRCULAR

The purpose of this circular is to: -

• amend Chief Registrar’s Circular 5 of 1995, which amendment is necessitated by the Schedule to the Development Facilitation Act 67 of 1995;

• place a duty on Chief Deeds Controllers for the charging of correct registration fees.

2. PARAGRAPH 1.3 OF CRC 5/95

2.1 This paragraph is amended by:

(a) The deletion/omission of the following Acts: -

• ConversionofCertainRightsintoLeaseholdorOwnershipAct,81/1988; • LessFormalTownshipEstablishmentAct,113/1991;and • ProvisionofCertainLandforSettlementAct,126/1993.

(b)Thesubstitutionof“UpgradingofLandTenureRightsAct,112/1991”withthe“Upgrading ofLandTenureRightsActs,112/1991,insofarasitrelatestoactsofregistrationprovided for in sections 2(2)(b), 7(7)(b), and 20(9) only”.

2.2 Deeds controllers should take note that an act of registration which is no longer exempt from office fees in terms of category 3 can still, however, qualify for exemption in terms of category 1.

3. PARAGRAPH 1.4 OF CRC 5/95The entire paragraph is substituted with the following paragraph:

“This category pertains to the exemptions provided for in section 62(9)(b) of the Development Facilitation Act, 67 of 1995”.

4. In view of the unacceptable number of incorrect fees charged or exemptions granted by examiners, it has become necessary to introduce a mechanism in an attempt to eliminate this problem. Therefore, Chief Deeds Controllers must in future personally insert the fee or exemption category in the stamp docket (endorsement).


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ENDORSING OF DEEDS

Certain deeds registries adopted a practice not to endorse all the consecutive steps re the transfer of assets, amalgamation, change of name, etc. against a deed that remains valid.

It is important that registered deeds contain full facts regarding transfer of assets, amalgamations, change of name, etc. The correct practice is therefore to endorse all the consecutive steps against the deed. In terms of section 3(1)(v) of the Deeds Registries Act, 1937 (Act No 47 of 1937), a Registrar of Deeds must, inter alia, make such endorsements on registered deeds as may be necessary to give effect to the objects of any law. Therefore, if for example a company has changed its name, or in the event of amalgamation or the transfer of assets of financial institutions in terms of specific legislation, a Registrar is compelled to endorse the relevant deeds accordingly.

In view of the above and seeing that completeness of records is necessary it is important that registered deeds must contain full facts regarding, inter alia, change of name, amalgamation, transfer of assets, etc. All consecutive steps must be endorsed against a deed which remains valid. Although it is not necessary to endorse the consecutive steps on bonds to be cancelled, the consecutive steps must be disclosed in the consent to cancellation.


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FINANCIAL AND FISCAL COMMISSION ACT NO 99 OF 1997

1. COMMENCEMENT OF THE ACTThe above Act came into operation on 1 January 1998.

2. PURPOSE OF THE ACTThe purpose of the Act is to confer juristic personality upon the Financial and Fiscal Commission established by section 220 of the Constitution of the RSA Act 108 of 1996, and to vest in it the assets and liabilities of the Financial and Fiscal Commission which was established by section 198 of Act 200 of 1993 (section 2 read with sections 31 and 33).

3. IMPACT OF ACT ON DEEDS REGISTRIES AND REGISTRATION PROCEDURES

3.1 The Commission shall be described in deeds as follows, “The Financial and Fiscal Commission (established by section 2 of Act 108/96)”.

3.2 Although section 4(1)(d) stipulates that the Commission can only acquire or dispose of immovable property with the consent of the Minister of Finance, this consent need not be lodged as supporting document with a transaction to be registered due to the provisions of regulation 44A(d)(ii)(aa) of the Deeds Registries Act No 47 of 1937.

3.3 In terms of section 4(2) the Commission may not borrow money and therefore no mortgage or notarial bond in which the Commission is a mortgagor shall be registrable.

3.4 In terms of section 27(2) the Commission is entitled to information free of charge, thus the deeds office must issue to the Commission any information so requested free of charge.

3.5 The assets and liabilities of the previous Commission established by section 198 of Act 200 of 1993 vest in the new commission (section 33(a)). In giving effect to this section, the provisions of section 31 of the Deeds Registries Act No 47 of 1937 shall apply.

4. REGISTRATION FEESThe provisions of regulation 84 of the Deeds Registries Act No 47 of 1937 applies.


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MEDICAL, DENTAL AND SUPPLEMENTARY HEALTH SERVICE PROFESSIONS ACT NO 56 OF 1974, AS AMENDED

1. AMENDMENT OF THE ACT

The Medical, Dental and Supplementary Health Services Professions Act No 56 of 1974, herein after referred to as the Act, has been amended by the Medical, Dental and Supplementary Health Services Professions Amendment Act No 89 of 1997. The Amendment Act shall come into operation on a date to be fixed by the President by Proclamation in the Gazette, and from that date the Act shall be known as the Health Professions Act 56 of 1974 (section 65 of the Amendment Act 89 of 1997).

2. PURPOSE OF THE AMENDMENT ACT

The purpose of the Amendment Act is, inter alia, to abolish the Interim National Medical and Dental Council of South Africa and establish the Health Professions Council of South Africa.

3. IMPACT OF ACT ON THE REGISTRATION PROCESS

3.1 On the disestablishment of the Interim National Medical and Dental Council of South Africa, the Health Professions Council of South Africa shall be established and all the rights, obligations, assets and liabilities of the former shall vest in the latter (section 63A read with section 2 of the Act).

The Health Professions Council may, in terms of section 4(a) of the Act, acquire, hire or dispose of property, borrow money on the security of assets of the Council and accept and administer any trust or donation.

The Council must be described in a deed as follows: HEALTH PROFESSIONS COUNCIL OF SOUTH AFRICA (Established in terms of section 2 of Act 56/1974).

3.2 The Registrar of Deeds must upon application by the Health Professions Council of South Africa, accompanied by the relevant title deeds or other documents, make the necessary endorsements and entries on such documents and in his registers in order to give effect to the transfer referred to in clause 3.1. (Section 63A(2)(a) of the Act).

The deeds must be endorsed as follows:

“Endorsement in terms of section 63A(2)(a) of Act 56 of 1974 In terms of section 2 of the Health Professions Act No 56 of 1974 all the rights, obligations, assets and liabilities of the Interim National Medical and Dental Council of South Africa have passed to the Health Professions Council of South Africa (Established in terms of section 2 of Act 56 of 1974).

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Application filed under*

__________________________ Registrar of Deeds”* Insert the relevant code.

4. TRANSFER DUTY, STAMP DUTY AND OFFICE FEES

No Transfer Duty, Stamp Duty or Office Fee is payable in respect of an act of registration referred to in paragraphs 3.2 (Section 63A(2)(b) of the Act.


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26. CHIEF REGISTRAR’S CIRCULAR NO 7 OF 1998 NATIONAL PARKS ACT NO 57 OF 1976, AS AMENDED BY THE NATIONAL PARKS AMENDMENT ACT NO 70 OF 1997

1. COMMENCEMENT OF THE ACT

The principal Act came into operation on 28 April 1976 and the amending Act came into operation on 3 December 1997.

2. PURPOSE OF THE ACT

The purpose of the amending Act, is to change the name of the National Parks Board to South African National Parks and to regulate the power of the board to borrow money.

3. IMPACT OF THE ACT ON THE LAND REGISTRATION PROCESSES

As from the date of commencement of the amending Act, reference to the National Park in any law, deed or other document must be construed as reference to the South African National Parks (section 5(1A)).

Whenever any deed registered in favour of the National Parks Board is lodged at a Deeds Registry, except bonds lodged for cancellation in respect whereof the Board is the mortgagor, it must be endorsed as follows:

“Endorsement in terms of section 3(1)(v) of Act 47 of 1937: In terms of section 5(1) of Act 57 of 1976, the name of the within National Parks Board has changed and is now known as the South African National Parks.

___________________________ Registrar of Deeds”

4. REGISTRATION FEES

No application is required and therefore no registration fee is payable.


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NON PROFIT ORGANISATIONS ACT NO 71 OF 1997


The Act shall come into operation on a date to be fixed by the President in the Gazette.

2. PURPOSE OF THE ACT The purpose of the Act is to provide for the registration of non profit organisations and matters related thereto.

3. IMPACT OF ACT ON LAND REGISTRATION PROCESSES

3.1 A non profit organisation can be in a form of a trust, company or other association of persons (section 1(x)).

3.2 A registered non profit organisation is a body corporate and must reflect its registered status and registration number on all of its documents (section 16).

In view of the provisions of regulation 24(1)(b) of the Deeds Registries Act of 1937 (Act 47 of 1937), the said registration number must be disclosed in addition to any other registration number such as a trust or company number.

The following serves as an example:

“The trustees of the ABC Trust, No. IT 321/97, Registered non profit organisation in terms of section 15(a) of act 71 of 1997, Registration No. 97/04312/18”.

3.3 A registered non profit organisation may change its name (section 19(1)). Whenever a registered non profit organisation has changed its name, section 93 of the Deeds Registries Act No 47 of 37 must be complied with, except when it is a company or other body of persons also registered in terms of another Act, and such Act provides for a procedure to be followed.

4. TRANSFER DUTY, STAMP DUTY AND REGISTRATION FEES

Non profit organisations are not exempt from payment of transfer duty, stamp duty and registration fees.


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HOUSING ACT NO 107 OF 1997


The Act shall come in operation of a date to be determined by the President by proclamation in the Government Gazette.


The purpose of the Act is, inter alia, the continued existence of provincial boards under the name of provincial housing development boards, and to provide for matters connected therewith.

3. IMPACT OF ACT ON THE REGISTRATION PROCESSES

3.1 The National Housing Board established by section 2 of the Housing Arrangements Act No 155 of 1993 is abolished and its assets and liabilities, in respect of immovable property, pass to various Provincial Housing Development Boards (section 13 read with section 14(2)(a)).

On application by a Provincial Housing Development Board accompanied by the relevant title deed/s together with a certificate by the head of Department of Housing to the effect that the immovable property mentioned in the certificate has passed to the Provincial Housing Development Board concerned, the Registrar of Deeds must make the necessary endorsements and entries on the title deeds and registers in order to give effect to such transfer (passage) (section 14(2)(b)).

The following endorsement must be made on the title deeds concerned:

“Endorsement in terms of section 14(2)(b) of Act No 107 of 1997 The within mentioned property has in terms of section 14(2)(a) of Act No 107 of 1997 passed to the ............ Provincial Housing Development Board. Application filed with T............................... ______________________ __________________________

Date Registrar of Deeds” 3.2 Immovable property that has passed to a Provincial Housing Development Board, and which has not been alienated by such board for housing development, must be transferred to a municipality (section 15(2)(a)). Any rights, liabilities and obligations in respect of such immovable property must be transferred, not later than a date determined by the Minister of Housing, by the provincial housing board to the municipality within whose area of jurisdiction such property is situated. Such a transfer must be made by means of an endorsement contemplated in section 14(2)(b)- (section 15(6)). The certificate referred to supra must in this instance be signed by the Chief Executive Officer of the municipality concerned and the application be made by the local authority concerned.

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The relevant title deeds must be submitted and be endorsed as follows:

“Endorsement in terms of section 15(6) of Act No 107 of 1997 The within mentioned property is, in terms of section 15(6) of Act No 107 of 1997, transferred to the ............ Application filed with T.........................

______________________ __________________________ Date Registrar of Deeds”

4. TRANSFER DUTY, STAMP DUTY AND REGISTRATION FEES No transfer duty, stamp duty or registration fee is payable for any act of registration done in terms of 3.1 and 3.2 supra (section 14(2)(d) and 15(6)).

Signed CHIEF REGISTRAR OF DEEDS

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HIGHER EDUCATION ACT NO 101 OF 1997

1. COMMENCEMENT OF ACT

The Higher Education Act No 101 of 1997 came into operation on 19 December 1997, except for sections 51 and 66(3) and (4) which will commence on a date determined by the Minister by notice in the Gazette.


The purpose of the Act is, inter alia, to provide for the establishment and registration of public higher education institutions.

3. ESTABLISHMENT AND CAPACITY OF PUBLIC HIGHER EDUCATION INSTITUTIONS

Every higher public education institution established, deemed to be established or declared as such by the Minister of Education, in terms of section 20(1) or (2) of the Act, is a juristic person. The higher education institution may, however, not dispose or alienate immovable property acquired in any manner with the financial assistance of the State, or grant any real right or servitude thereon, without the concurrence of the Minister of Education (section 20(5)). Due to the provisions of regulation 44A(d)(ii)(aa) of the Deeds Registries Act of 1937, (Act No 47 of 1937), the consent of the Minister need not be lodged in the deeds registries.

4. DECLARATION OF EDUCATION INSTITUTIONS AS PUBLIC HIGHER EDUCATION INSTITUTIONS AND THE CONSEQUENCES THEREOF

The Minister of Education may declare any education institution as a public higher education institution or a subdivision thereof by notice in the Gazette (section 21(1) and (2)).

From the date determined by notice in the Gazette the assets, liabilities, rights and obligations of the education institution devolve upon the public higher education institution (section 22(1)(b)).

Immovable property devolving upon the public higher education institution must be transferred to such institution subject to the concurrence of the Minister of Finance and subject to any existing right, encumbrance, duty or trust on or over the property (section 22(2)). Due to the provisions of regulation 44A(d)(ii)(aa) of the Deeds registries Act No 47 of 1937 the consent of the Minister need not be lodged in the deeds registries.

Upon submission of the relevant title deeds and on application by the public higher education institution, the title deeds must be endorsed as follows:

“Endorsement in terms of section 22(3) of the Higher Education Act No 101 of 1997 The assets, liabilities, rights and obligations of the .......................... University/ Technikon/College

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devolved upon the ........................ (Disclose the name of the public higher education institution) as from Application filed with * _________________________ Registrar of Deeds”* Insert the correct code.

5. MERGER OF PUBLIC HIGHER INSTITUTIONS:

The Minister of Education may by notice in the Gazette merge two or more public higher education institutions into a single public higher education institution.

The immovable property of the public higher education institutions must be transferred to the single institution, subject to any existing right, encumbrance, duty or trust on or over the properties (section 22(2) read with section 23(4)).

Upon the submission of the relevant title deeds and on application by the public higher education institution, the title deeds must then be endorsed as follows:

“Endorsement in terms of section 23(4) of the Higher Education Act No 101 of 1997 The within ........................... University/Technikon/College has merged with the ........................ .......... University/Technikon/College and its assets, liabilities, rights and obligations devolved upon the .................. (Disclose the name of the public higher education institution) as from Application filed with * _______________________ Registrar of Deeds”* Insert the correct code.

6. MERGER OF SUBDIVISIONS OF PUBLIC HIGHER EDUCATION INSTITUTIONS

The Minister of Education may merge a subdivision of a public higher education institution with another public higher education institution by notice in the Gazette (section 24(1)).

The assets, liabilities, rights and obligations of the subdivision concerned devolve upon the public higher education institution with which the subdivision has merged in a manner agreed by the councils of the public higher education institutions concerned or failing such agreement, in a manner determined by the Minister after consulting such councils (section 24(2)). This agreement or determination by the Minister will have to be lodged to ensure that effect is given to the terms of the agreement, together with the title deeds and application by the public higher education institution for the endorsement of the title deeds involved.

The title deeds must be endorsed as follows:

“Endorsement in terms of section 24(3) of the Higher Education Act No 101 of 1997 A subdivision of the within ...................................... University/Technikon/ College merged with the .................. University/Technikon/College and its assets, liabilities, rights and obligations devolved upon the .................. (Disclose the name of the public higher education institution) as

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from .................... Application filed with * ____________________________ Registrar of Deeds” * Insert the correct code.

The endorsement of title deeds may not result in more than one public higher education institution holding separate properties under the same title deed. Therefore appropriate Certificates of Registered Title will have to be applied for if and when necessary.

7. CLOSURE OF PUBLIC HIGHER EDUCATION INSTITUTIONS

The Minister of Education may close a public higher education institution by notice in the Gazette (section 25(1)).

All assets and liabilities of such public higher education institution must after closure be dealt with according to law by the Minister of Education, and assets remaining after payment of all liabilities vest in the Minister (section 25(2)).

In respect of the remaining assets, the title deeds must upon submission thereof and on application be the Minister, be endorsed as follows:

“Endorsement in terms of section 25(3) of the Higher Education Act No 101 of 1997 The ................... (disclose the name of the public higher education institution) has been closed and as this immovable property forms part of the remaining assets, it vests in the REPUBLIC OF SOUTH AFRICA in terms of section 25(2) of the Act. Application files with T ____________________ Registrar of Deeds” 8. CHANGE OF NAME

A council of a public higher education institution, other than a council of a university, technikon or college established or incorporated by a private Act of Parliament may, with the approval of the Minister of Education and by notice in the Gazette, change the name of such public higher education institution (section 65(1)). The provisions of section 93 of the Deeds Registries Act will have to be complied with.

The name of a university, technikon or college established or incorporated by a private Act of Parliament may only be changed by amendment of such private Act (section 65(2)).

9. REGISTRATION AND OTHER FEES

No transfer duty or stamp duty fees are payable in respect of the above registrations (section 22(2)).

Registration fees are payable (section 22(6)).


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WATER SERVICES ACT 108 OF 1997


This Act came into operation on 19 December 1997.


The purpose of the Act is to, inter alia, establish and disestablished water boards and water services committees.

3. IMPACT OF THE ACT ON DEEDS REGISTRIES AND REGISTRATION PROCEDURES

3.1 Water Boards

3.1.1 In terms of section 28(1) of the Act, the Minister may by notice in the Government Gazette

(a) establishawaterboard; (b) giveitanameorapproveachangeofitsname; (c) determineorchangeitsservicearea;or (d) disestablish it.

3.1.2 A water board is a body corporate (section 31(1)), and must be described in a deed or document as “....... Water Board (established in terms of section 28(1)(a) of Act No 108 of 1997)”

3.1.3 If the Minister approves the change of name of a water board, the provisions of section 93 of the Deeds Registries Act, 1937 (Act 47 of 1937), must be complied with.

3.1.4 If the Minister has notified a water board that he or she intends to change its service area or to disestablish it, the Minister may direct such water board to transfer some or all of its assets and liabilities to another water board or water services authority - (section 46(1)).

A water services authority is a municipality, including a district council or rural council as defined in the Local Government Transitional Act No 209 of 1993, responsible for ensuring access to water services - (section 1).

A transfer contemplated by section 46(1) must be in the prescribed form E to the Deeds Registries Act.

3.1.5 Upon the disestablishment of a water board and if its assets and liabilities are not transferred to another water board or a services authority, its assets and liabilities vest in the Minister - (section 46(3)). Notwithstanding the wording of the said section,

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registration of assets must be in favour of the Republic of South Africa. The provisions of section 16, 31 and 32 of the Deeds Registries Act shall apply to assets that vest in the Minister.

3.2 Water services committee

3.2.1 In terms of section 51(1) of the Act, the Minister may by notice in the Government Gazette:

(a) establishawaterservicescommittee; (b) giveitanameorapproveachangeofitsname; (c) determineorchangeitsservicearea; (d)determineitspowers;or (e) disestablish it.

3.2.2 A water services committee is a body corporate, (section 53(1)), and must be described in a deed or document as, “.... Water Services Committee (established in terms of section 51(1)(a) of Act No 108 of 1997).”

3.2.3 If the Minister approves the change of name of a water services committee, the provisions of section 93 of the Deeds Registries Act must be complied with.

3.2.4 Upon the disestablishment of a water services committee, its assets and liabilities vest in the Minister, (section 60(1)), and the provisions of section 16, 31 and 32 of the Deeds Registries Act shall apply to such assets. Registration must notwithstanding the wording of section 60(1), be in favour of the Republic of South Africa.

3.3 Transferability of servitudes

The rights and obligations of any water services institution in terms of a personal servitude are transferable to another water services institution (section 77(1)). The transfer of a personal servitude is effected by the registration of a notarial deed (section 77(2)). Although section 77(1) provides for the cession of a registered or unregistered personal servitude, a notarial cession can only be registered in respect of registered personal servitudes.

3.4 Expropriation

Property may be expropriated by the Minister or by any water board or water services committee acting with the written approval of the Minister, and the Expropriation Act, 1975 (Act No 63 of 1975), applies to all such expropriations.

The Ministers’ consent must accompany all expropriation notices by a water board or water services committee.

4. TRANSFER DUTY, OTHER TAXES AND DUTIES (INCLUDING REGISTRATION FEES)

4.1 Re item 3.1

All the acts of registration referred to in item 3.1 are subject to the payment of transfer duty, other taxes and duties. However, the Minister of Finance may in terms of section 46(5), exempt the transfer of any assets from the payment thereof, if such transfer is -

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(a) fromtheMinistertoawaterboardorawaterservicesauthority; (b) fromawaterboardtotheMinister;or (c) from a water board to another water board or to a water services authority.

The registration of deeds pertaining to the vesting of assets, (see item 3.1.5 supra), cannot be exempted from the payment of the above.

4.2 Re item 3.2

All the acts of registration referred to in item 3.2 are subject to the payment of transfer duty, other taxes and duties. However, the Minister of Finance may, in terms of section 60(3), exempt the transfer of any assets from the payment thereof, if such transfer is -

(a) fromwaterservicescommitteetotheMinister;or (b) from the Minister to a water services authority or to a water board.

The registration of deeds pertaining to the vesting of assets, (see item 3.2.4 supra), cannot be exempted from the payment of the above.

4.3 Re item 3.3 and 3.4

Acts of registration referred to in item 3.3 and 3.4 are subject to the payment of registration fees.


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SOUTH AFRICAN MARITIME SAFETY AUTHORITY ACT NO 5 OF 1998


This Act shall come into operation on a date to be fixed by the President by Proclamation in the Gazette (section 58(1)).


The purpose of this Act is inter alia, to establish a juristic person to be known as The South African Maritime Authority, and to vest/transfer certain assets and liabilities of the State in/to it (sections 2(1), 32 and 33).


3.1 The authority shall be described in deeds and documents as follows,

“The South African Maritime Safety Authority (established by section 2(1) of Act 5/1998)”

The authority may acquire, hold and dispose of assets and may also invest money in any manner that is consistent with sound commercial practice (section 9).

3.2 The Minister may cause an asset that was held or used by the Department of Transport in connection with the performance of certain functions or certain other assets to be transferred to the Authority (section 31). Assets are defined as property of any description, and include both movable and immovable property (section 1).

3.3 Transfer of land

3.3.1 Land as determined and described by the Minister by notice in the Gazette is transferred to the Authority on the date specified in the notice (section 32(1)).

3.3.2 A Registrar must on submission of a certificate by the Minister that State land has been transferred to the Authority, make such entries and endorsements, free of charge, as he or she considers necessary in or on any appropriate register, title deed or other document in his or her office or laid before him or her, in order to register the transfer (section 32(2)). The wording of this sub-section is incorrect in view of the fact that transfer of land is effected by operation of law and not by registration.

3.3.3 The relevant title deeds must be lodged.

3.3.4 Seeing that no application is required, the Ministers’ certificate must be allocated a T ........ code.

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3.3.5 Title deeds must be endorsed on the following lines:

“Endorsement in terms of section 32(2) of Act 5 of 1998 In terms of section 32(1) of the above mentioned Act, the within mentioned property/ies has/have been transferred to the South African Maritime Authority (established by section 2(1) of Act No 5 of 1998.

Minister’s certificate filed with T......................... ________________________ _______________________________ Date Registrar of Deeds”

3.3.6 A situation whereby different persons hold different properties under the same title is unacceptable. Therefore, if all properties held under a title deed are not to be transferred to the Authority, a certificate of registered title must first be obtained.

3.4 Transfer (cession) of servitudes, other real rights or leases

3.4.1 Although section 32(3) provides for a procedure of transferring servitudes, other real rights and leases, such procedure can not be invoked in view of the fact that section 32(1) only refers to land and not to assets. The transfer (cession) of servitudes, other real rights and leases must therefore be affected in terms of the provisions of the Deeds Registries Act 1937, (Act 47 of 1937).


4.1 No registration fee is payable in respect of an act of registration referred to in paragraph 3.3 (section 32(2)).

4.2 In view of the fact that the provision of section 32(3) can not be invoked, a registration fee is payable in respect of the cession of a servitude, other real rights and leases.


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DEEDS BUSINESS ACCOUNT : SCHEDULE OF FEES OF OFFICE

1. FEE FOR RATEABLE RETURNS SUPPLIED TO LOCAL AUTHORITIES

Due to disparities in the interpretation of Item 4(a) of the Schedule of Fees of Office prescribed by Regulation 84 of the Deeds Registries Act, (Item 4(a)(i) of the revised Schedule which came into operation on 23 June 1998), the matter was tabled for discussion at the Management Meeting of Registrars of Deeds held at Hunter’s Rest recently. It was resolved that the fee for rateable return must be R5-00 per item.

Local Authorities must pay the above fee or, alternatively, register as Aktex users and obtain the rateable returns through the Aktex Information System. In last mentioned case the cost will be levied in accordance with Item 6(b) of the Schedule of Fees.

2. APPLICATIONS FOR CERTIFIED COPIES - REGULATION 68(1)

With the implementation of the new Deeds Database Software system, it was noted that in some Deeds Offices single applications for the issue of more than one certified copies in terms of Regulation 68(1) were being accepted. Originally the new software was unable to accommodate the recordal of such an application as it barred the repeated capture of the VA number for the different deeds. The software has since been modified to handle the registration of these applications. However, this is a short term solution only and the practice in Deeds Offices needs to be revised for the following reasons: -

• Whereasregulation67referstomorethanonedeed,i.e.“copiesofdeeds.....”,thewordingof Regulation68(1),ontheotherhand,referstoasingledeed,ie.“anydeed.......”,whichconfirms that each application should be in respect of a single deed only;

• Registrationofsingleapplicationsformorethanonecertifiedcopycreatesthepossibilityof incorrect fees being levied e.g. R20-00 per application in stead of R20-00 per copy; and

• In instanceswhereasingleVAnumber isrecordedagainstmultipledeedsappearing inan application, the danger exists that it will later be purged in respect of all the deeds when it is to be purged partially only.

Registrars of Deeds must therefore, as from 1 August 1998, only accept applications for certified copies in terms of Regulation 68(1) if such applications are in respect of a single deed.


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33. CHIEF REGISTRAR’S CIRCULAR NO. 18 OF 1998

DEEDS REGISTRIES ACT, 1937 (ACT 47 OF 1937): AMENDMENT OF REGULATIONS

1. COMMENCEMENT OF AMENDED REGULATIONS

The amended regulations, published under Proclamation No R762 dated 5 June 1998 in Government Gazette No 18939, shall come into operation on 6 July 1998.

2. NATURE AND/OR IMPACT OF THE AMENDMENTS

2.1 Amendment of regulation 4 In view of the repeal of the Constitution of the Republic of South Africa, 1993 (Act 200 of 1993) by the Constitution of South Africa, 1996 (Act 108 of 1996), paragraph (a) of regulation 4 had to be amended.

2.2 Substitution of regulation 30 The term “share” must also be used when an undivided share in mineral rights, right of leasehold, initial ownership, a registered lease of land and a registered mineral lease is being dealtwith.Itwasthereforenecessarytosubstitutethewords“immovableproperty”forthe word“land”inthisregulation.

2.3 Amendment of regulation 32 Due to the implementation of a digital imaging system by the office of the Surveyor-general, it is necessary to prescribe the manner of registration of general plans.

To give effect to the above, regulation 32 has been amended by the insertion of regulation 32ter which reads as follows:

“32ter Simultaneously with the opening of a register pertaining to land represented on a general plan, the Registrar of Deeds shall register the plan by endorsing the relevant particulars thereofonthetitledeed.”

When registering general plans, the following particulars must be endorsed against the relevant title deeds:

(a) General plans in respect of townships: (i) the number of the general plan; (ii) the name of the township; (iii) the erf number series; and (iv) reference to where the application for the registration of the general plan is filed.

(b) General plans in respect of subdivisions: (i) the number of the general plan; (ii) the number of the subdivided portions; and (iii) reference to where the application for the registration of the general plan is filed.

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2.4 Amendment of regulation 41 A waiver of preference of a real right can only be in favour of a bond and not in favour of the holder thereof. It was therefore necessary to amend sub-regulation (7) of regulation 41 accordingly.

2.5 Amendment of regulation 44A

(a) Paragraph (c) It was necessary to amend paragraph (c) of this regulation in order to ensure that the provisions thereof apply to any person acting in a capacity as a principal or representative appointed or recognised as such under or in terms of any act or court order, and not only to an executor, trustee, tutor, curator, liquidator or judicial manager.

(b) Paragraph (d)(ii)(aa) It was necessary to amend this paragraph in order to ensure that this provision does not apply to persons appointed as agents under general powers of attorney and therefore does not override regulation 65.

This paragraph was further amended to make the provision applicable to all institutions whether created by statute or otherwise.

(c) Paragraph (d)(ii)(bb) This paragraph was amended to make the provision applicable to all institutions whether created by statute or otherwise.

2.6 Amendment of regulation 54 Itwasnecessary to amend this regulationby substituting theword “immovable property” for theword“land”, seeing that theActalsoprovides for the issueofcertificatesof title in respect of mineral rights.

2.7 Amendment of regulation 65 Documents executed in Namibia must also comply with the rules of authentication, and it was therefore necessary to delete reference to the Territory of South-West Africa in sub-regulation (2).

2.8 Amendment of regulation 73 Sub-regulation (2) has been amended to also provide for a diagram to be annexed to a notarial deed of cession of a lease or sub-lease of land.

2.9 Substitution of regulation 82bis The Sectional Titles Act of 1971 has been repealed by the Sectional Titles Act of 1986, and therefore the above regulation has to be amended.

2.10 Form E The nature of ownership must be reflected in the property clause and not in the recital of the deed. It was therefore necessary to amend the form accordingly.

In view of the provision of regulation 82 of the Act, deeds must not unnecessary be rejected.

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2.11 Form SS This form now refers to the relevant sections of the Sectional Titles Act of 1986, and not the repealed Sectional Titles Act of 1971.

2.12 Form EEE and FFF Section 64(2)bis and 64(2)ter require forms to be prescribed. It was therefore necessary to give effect to the provisions of the said sections.


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THE PHARMACY ACT NO 53 OF 1974, AS AMENDED BY THE PHARMACY AMENDMENT ACT NO 88 OF 1997


The Act came into operation on 21 February 1975 and the amending Act came into operation on 1 March 1998, vide Proclamation No R 19 of 1998 dated 27 February 1998.


The purpose of the Act is to establish the South African Pharmacy Council and to provide for matters related thereto.

3. IMPACT OF ACT ON LAND REGISTRATION PROCESSES

3.1 A juristic person known as the South African Pharmacy Council is established and such person shall be deemed the successor-in-title of the Interim Pharmacy Council of South Africa. In any deed, document or Act reference to the Interim Pharmacy Council of South Africa shall be deemed to be reference to the South African Pharmacy Council (section 2 of the Act).

A Registrar of Deeds must on application by the Registrar of the South African Pharmacy Council or a person lawfully acting in that capacity, accompanied by the relevant title deeds, amend his or her records and endorse the title deeds concerned in order to give effect to the provisions of section 2 of the Act.

The deeds concerned must be endorsed on the following lines:

“Endorsement in terms of section 2(3) of Act 53 of 1974 The South African Pharmacy Council is, in terms of section 2(1) of the above Act, deemed to be the successor-in-title of the Interim Pharmacy Council of South Africa. Vide application filed with*

________________________ _______________________ Date Registrar of Deeds” .... * Insert the applicable code.

4. TRANSFER DUTY, STAMP DUTY AND REGISTRATION FEES

No transfer duty, stamp duty or registration fee is payable in respect of acts of registration effected in terms of section 2(3) of the Act.


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NATIONAL FOREST ACT NO 84 OF 1998


All sections, with the exception of inter alia section 7, which effect this circular, came into operation on 1 April 1999.


The purpose of this Act, inter alia, is to promote the sustainable management and development of forests for the benefit of all and to provide special measures for the protection of certain forests and trees.


3.1 In terms of section 16(1) of the Act, the Minister may request the Registrar of Deeds to appropriately endorse the title deed of land to the effect that:

(1) a forest on such land has been declared a natural forest under section 7(2); or

(2) a particular tree or group of trees or woodland are protected under section 12(1) of the Act.

On receiving of such a request it must, in terms of section 16(2), be noted as an interdict under the code I........./.........I Whenever the title deed is lodged it must appropriately be endorsed and the interdict removed from the records.

The noting of interdicts and endorsing of title deeds in terms of this Act, does not prohibit the owner of the land from disposing or otherwise dealing with the land.


No registration fee is payable in respect of the performance of an act in terms of Section 3(1)(w) of the Deeds Registries Act.


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PREVENTION OF ORGANISED CRIME ACT NO 121 OF 1998, AS AMENDED


The purpose of the Act is, amongst other things, to provide for the recovery of the proceeds of unlawful activity and the forfeiture of assets that have been used to commit an offence, in order to prevent persons from benefiting from the fruits of organised crime (preamble of the Act).

2. IMPACT OF CERTAIN PROVISIONS OF THE ACT ON DEEDS OFFICES

2.1 General Various High Court orders, some of which impose duties on a Registrar of Deeds, may be issued under the provisions of this Act. It is therefore important that, apart from examiners, all officials at the interdict section, information section, etc. be informed about the provisions of this Act.

Court orders issued under this Act and submitted to Registrars, must be filed under the code “I........../..........I”. Such interdicts must be noted against the name of the person on the data records and, in the event of restraint orders, preservation of property orders and orders for the forfeiture of property, also against the properties concerned.

2.2 Restraint orders In terms of section 26(1) read with section 26(8) the High Court may make restraint orders prohibiting any person from dealing in any manner with any property to which a restraint order relates and later to make orders ancillary to restraint orders for the proper and effective execution of restraint orders.

In terms of section 29(1) of the Act, a High Court which has made a restraint order contemplated in section 26 may order the relevant Registrar of Deeds to note, on the relevant title deed of the property to which a restraint order relates, any of the following restrictions namely: that, without the consent of the High Court, the immovable property shall not:

(a) be mortgaged or otherwise be encumbered; (b) be attached or sold in execution; (c) vest in the Master of the High Court or the trustee or the liquidator, on insolvency or liquidation of the owner, as the case may be.

However, in view of the provisions of section 35(1) and 36(1), property will vest in the Master of the High Court if the estate of a person who holds realisable property is sequestrated before the restraint order has been made or where an order has been made for the winding-up of a company or other juristic person which holds realisable property or where resolution for the voluntary winding-up of such company or juristic person has been noted before the restraint order has been made.

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In giving effect to a High Court order issued in terms of the sections mentioned supra a Registrar of Deeds must endorse the office copy of the title deed concerned re the order and note a caveat against the property involved to the effect that the clients copy must be so endorsed whenever it is lodged for whatever reason, (section 29(3) of the Act).

Although section 29(2) does not provide for the endorsement on the title deed re a restriction prohibiting a registered owner from alienating property to which a restraint order relates a Registrar of Deeds must endorse the relevant title deed re the said restriction should the High Court so order.

Where a High Court orders, in terms of section 26(8), that no person may deal in any manner with property to which a restraint order relates without ordering the endorsement of the relevant title deed, the said court order must be recorded as a caveat, in terms of section 3(1)(w) of the Deeds Registries Act, against the property concerned.

The effect of the sections mentioned above is that once the terms of the order of Court have been endorsed against the title deed concerned or a caveat recorded as aforesaid no dealings in respect of the property concerned, without the consent of the Court, by the registered owner or a Sheriff or a trustee or a liquidator shall be registrable. It must, however, be noted that, in terms of section 29(3)(a), the prohibitions referred to above exclude a sale by the Sheriff at the instance of a mortgagee or a holder of a charge if such bond or charge was registered prior to the endorsement of the restriction on the title deed.

The office copy of the title deed concerned must be endorsed along the following lines:

“Endorsement in terms of section 29(3) of Act No 121 of 1998, as amended In terms of order of court filed as I.........../.........I, the within mentioned property shall not, without the consent of the High Court, be *alienated/mortgaged or otherwise encumbered/ attached or sold in execution/vest in the Master of the High Court or trustee concerned/vest in the liquidator concerned. ________________________ _______________________ Date Registrar of Deeds” . * Omit whichever is not applicable.

In terms of section 29(7)(a) read with section 29(7)(b) the High Court may rescind an order made in terms of section 26 or 29 and order a Registrar of Deeds to cancel the endorsement effected in terms of section 29(3). The endorsement on the office copy of the title must appropriately be cancelled and, if necessary, a caveat recorded to ensure the cancellation of the endorsement on the client’s copy of the title. 2.3 Preservation of property orders In terms of section 38(1) read with section 38(3) the High Court may make preservation of property orders prohibiting any person from dealing in any manner with any property to which a preservation of property order relates and later to make orders ancillary to the said orders for the proper and effective execution of such orders.

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In terms of section 43(1) read with 43(2) of the Act, a High Court which has made a preservation of property order contemplated in section 38 may order the relevant Registrar of Deeds to note, on the office copy of the relevant title deed of the property to which the said order relates, any of the following restrictions namely: that, without the consent of the High Court, the immovable property shall not:

(a) be mortgaged or otherwise be encumbered; (b) be attached or sold in execution; (c) vest in the Master of the High Court or the trustee or the liquidator, on insolvency or liquidation of the owner, as the case may be.

In giving effect to a High Court order issued in terms of the sections mentioned supra a Registrar of Deeds must endorse the office copy of the title deed concerned re the order and note a caveat against the property involved to the effect that the clients copy must be so endorsed whenever it is lodged for whatever reason, (section 43(3) of the Act).

Although section 43(2) does not provide for the endorsement on the title deed re a restriction prohibiting a registered owner from alienating property to which a preservation of property order relates a Registrar of Deeds must endorse the relevant title deed re the said restriction should the High Court so order.

Where a High Court orders, in terms of section 38(3), that no person may deal in any manner with property to which a restraint order relates without ordering the endorsement of the relevant title deed, the said court order must be recorded as a caveat, in terms of section 3(1)(w) of the Deeds Registries Act, against the property concerned.

The effect of the sections mentioned above is that once the terms of the order of Court have been endorsed against the title deed concerned or a caveat recorded as aforesaid no dealings in respect of the property concerned, without the consent of the Court, by the registered owner or a Sheriff or a trustee or a liquidator shall be registrable. It must, however, be noted that, in terms of section 43(3)(a), the prohibitions referred to above exclude a sale by the Sheriff at the instance of a mortgagee or a holder of a charge if such bond or charge was registered prior to the endorsement of the restriction on the title deed.

The office copy of the title deed concerned must be endorsed along the following lines: “Endorsement in terms of section 43(3) of Act No 121 of 1998, as amended In terms of order of court filed as I........../.......I, the within mentioned property shall not, without the consent of the High Court, be *alienated/ mortgaged or otherwise encumbered/attached or sold in execution/vest in the Master of the High Court or trustee concerned/vest in the liquidator concerned. ________________________ _______________________ Date Registrar of Deeds” .

* Omit whichever is not applicable.

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In terms of section 47(1) read with 47(3) the High Court may rescind an order made in terms of section 38 or 43 and order a Registrar of Deeds to cancel the endorsements effected in terms of section 43(3). The endorsement on the office copy of the title must appropriately be cancelled and, if necessary, a caveat recorded to ensure the cancellation of the endorsement on the client’s copy of the title deed.

2.4 Forfeiture of property In terms of sections 48(1), 50(1) and 50(2) read together, a High Court may, if a preservation order is in force, make an order for the forfeiture to the State of all or any of the property to which a preservation order relates and, later, make an ancillary order facilitating the transfer to the State of the property affected by the said forfeiture order.

Section 52 and 54 provide for the exclusion, on application by third parties, of the rights and interests of such third parties in the property to which a forfeiture order relates, from the operation of a forfeiture order.

Property to which a forfeiture order relates vests, in terms of section 56(2), in the State on the day such order takes effect. In effecting registration of the said property in the name of the State the procedure contained in section 31 of the Deeds Registries Act must be followed.

In terms of section 57(2) all rights and interest of third parties in property to which a forfeiture order relates which are not excluded as contemplated in sections 52 and 54 shall expire on the forfeiture of the property concerned to the State. The registration implication of this section is that where the forfeiture order does not provide for the exclusion of the rights and interest of third parties then the State shall receive clean title. This, in other words, means that in the deed of transfer contemplated in section 31 of the Deeds Registries Act conditions relating to rights and interest of third parties must be omitted. Lastly it must be noted that where the rights and interest of third parties are subjects of separate title deeds such title deeds must be lodged failing which the curator bonis referred to in section 57(1) must lodge an affidavit stating that he has been unable to obtain possession of the said deeds. The Registrar of deeds must endorse he said deeds or the Deeds Office copies thereof in the event of client copies not obtainable, along the following lines: “Endorsement in terms of section 3(1)(v) of Act 47 of 1937 The within mentioned right has, in terms of section 57(2) of Act 121 of 1998, as amended, expired as the property to which it relates has been forfeited to the State and transferred by deed of transfer T.................... ________________________ _______________________ Date Registrar of Deeds” .....

Where the office copy has been endorsed a caveat must be noted against the clients copy for a similar endorsement thereon should it be lodged for whatever reason. It must be noted, however, that praedial servitudes cannot expire as contemplated in section 57(2) and must, therefore be included in the deed of transfer in favour of the State.


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CHANGES AND AMENDMENTS COMPANY AND CLOSE CORPORATION NUMBERS GOVERNMENT NOTICE NO 1762 OF 1999

1. PUBLICATION OF NOTICE

Government Notice No 1762 of 1999 was published on 6 August 1999 and came into operation on 1 January 2000.

2. PURPOSE OF THE NOTICE

The purpose of the notice by the Registrar of Companies and of Close Corporations was to inform the public of the introduction of a year 2000 compatible convention for company and close corporation registration numbers.

3. EFFECT OF THE NOTICE

NB: Notice 1762 of 1999 must be studied and this circular must be read in conjunction therewith.

3.1 Conveyancing Requirements: Deeds Lodged after 1 January 2000 As company and close corporation numbers changed on 1 January 2000 in accordance with Notice No 1762, preparers must ensure that all deeds or documents lodged in a Deeds Office from 1 January 2000 contain the correct name and number of the company or close corporation - see regulations 44A(d)(i)(aa) and 24 of the Deeds Registries Act, 1937 (Act 47 of 1937).

3.2 Data Capture As the capture of slashes appearing between groups of characters will result in the 13 character capacity of the relevant field on the Deeds Registration System being exceeded, the System software has been programmed to accept only numerical characters in this field. The System will therefore refuse input of slashes or spaces when capturing a company or close corporation number.

3.3 Display of Numbers on Printouts Although the company and close corporation number in deeds and documents will contain slashes, the number will be captured by the data typist without any slashes (/) or spaces. (See paragraph 3.2 above). The Deeds Registration System software has however been programmed to ensure that these numbers will be reproduced on printouts with slashes in place. 3.4 Endorsement of Registered Deeds Deeds and documents executed prior to 1 January 2000 will be accepted with numbers in the previous format. However, deeds executed prior to 1 January 2000, and remaining alive after an act of registration, must be endorsed, free of charge, to reflect the change of the registration number of any company or close corporation.

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4. FUTURE USE OF REGISTRATION NUMBERS

With regard to the future use of company and close corporation numbers, your attention is invited to the contents of paragraph 5 of Notice No 1762 of 1999. Also note that the concession granted in the aforesaid paragraph applies only to the Registrar of Companies and of Close Corporations and not to the Registrar of Deeds.


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ABOLITION OF CERTAIN TITLE CONDITIONS ACT, 1999 (ACT NO 43 OF 1999)


This Act came into operation on 24 November 1999.


The purpose of the Act is to provide for the abolition of certain conditions in terms of which the consent or permission is required for the alienation or transfer of immovable property.


3.1 Abolition of conditions Section 1(1) of the Act provides for the abolition of certain title conditions registered against title deeds before the commencement of this Act whereby the consent or permission of the holder of an office under the Republic, the former Union of South Africa or any dominium, colony or republic which preceded the former Union of South Africa is required for the alienation or transfer of immovable property.

3.2 Exclusions from application of Act

The provisions of section 1(1) does not apply to any condition registered against a title deed if such condition -

(a) is imposed under any town planning scheme; (b) is imposed under a land use control mechanism having the effect of a town planning scheme; (c) affects rights to minerals; (d) determines a period during which a piece of land may not be alienated or transferred, if such period has not expired; (e) determines that the ownership of a piece of land will revert to the State if that condition is breached; (f) determines that the State may resume ownership of a piece of land for public purposes; (g) establishes a right of pre-emption in favour of the State; (h) was imposed as a condition of a permit or authorisation issued in terms of the Water Act, 1956 (Act No 54 of 1956), before the repeal of that Act by the National Water Act, 1998 (Act No 36 of 1998); (i) relates to land owned by the State; or (j) relates to land of which the holder of the office in question is the nominal owner, holding it in a fiduciary capacity.

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3.3 Endorsement in terms of section 1(2) of Act No 43 of 1999

In terms of section 1(2) of the Act the Registrar of Deeds must effect such endorsements on the title deed/s and such entries in his/her registers as are necessary in order to cancel the conditions as referred to in par 3.1 above.

No application is required for the abolition of the title conditions referred to in section 1(1) of the Act.

Title deeds lodged containing such condition/s must be endorsed along the following lines:

“Endorsement in terms of section 1(2) of Act No 43 of 1999 Condition/s ............. on page/s .......... hereof has/have been abolished in terms of section 1(1) of Act No 43 of 1999. ________________________ _______________________ Date Registrar of Deeds” .


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WORLD HERITAGE CONVENTION ACT, 1999 (ACT NO 49 OF 1999)


The Act will come into operation on a date to be fixed by the President by proclamation in the Gazette (section 45 of the Act).


The purpose of the Act is, amongst other things, to provide for -

• theincorporationoftheWorldHeritageConventionintoSouthAfricanlaw; • therecognitionandestablishmentofWorldHeritageSites;and • the declaration and granting of additional powers to existing organs of State and the establishment and disestablishment of Authorities (long title).

3. IMPACT OF THE ACT ON THE REGISTRATION PROCESSES

3.1 Declaration of existing organ of state as authority The Minister may, by notice in the Gazette, declare an existing organ of State as an Authority with a separate juristic personality and grant to such organ additional powers in relation to a World Heritage Site (section 8 of the Act).

3.2 Establishment of new authorities The Minister may, by notice in the Gazette, establish an Authority with a separate juristic personality.

In deeds and documents the Authority referred to above must be described as follows: “ABC (an Authority established in terms of section 9 of Act 49 of 1999)”.

3.3 Disestablishment of authority An Authority established in terms of section 9 may be disestablished in terms of a resolution by Parliament to that effect (section 12 of the Act).

3.4 Transfer and registration of immovable property of the state in the name of an authority In terms of section 31(1) of the Act the Minister may transfer movable or immovable property of the State to an authority. In registering property transferred in terms of section 31(1) to an Authority, the Registrar of Deeds must, on lodgement of a certificate by the Minister to the effect that the property mentioned therein has been transferred to an authority mentioned therein, make such entries and endorsements in his/her registers or other documents (section 31(5)(a) of the Act). The said certificate must be endorsed with the relevant code and the office copy of the relevant title deed must be endorsed with the endorsement below and a caveat noted against the property in question to the effect that the clients copy must be duly endorsed whenever it is lodged for whatever reason. It must be noted, however, that the above procedure cannot be followed if not all property held under a title deed is not transferred to an Authority in which event a normal deed of transfer must be lodged.

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“Endorsement in terms of section 31(5)(a) of Act 49 of 1999 The within mentioned property vests, with effect from ...................., in “ABC (an Authority established in terms of section 9 of Act 49 of 1999)”. Vide application filed with *T/BC/K....................... as the case may be. ________________________ _______________________ Date Registrar of Deeds” ....

* Delete whichever is not applicable

3.5 Reversion of property to the state upon disestablishment of an authority On the disestablishment of an Authority in terms of section 12, the Registrar of Deeds must, on lodgement of a certificate by the Minister to the effect that property mentioned therein has been transferred to the State, make such entries and endorsements in his/her registers or other documents in order to register the said property in the name of the State (section 31(6) of the Act). The said certificate must be endorsed with the relevant code and the office copy of the relevant title deed must be endorsed with the endorsement below and a caveat noted against the property in question to the effect that the clients copy must be duly endorsed whenever it is lodged for whatever reason. It must be noted, however, that the above procedure cannot be followed if not all property held under a title deed is not transferred to the State in which event a normal deed of transfer must be lodged.

“Endorsement in terms of section 31(6)(a) of Act 49 of 1999 The within mentioned property vests, with effect from ......................., in the State. Vide application filed with T/BC/K*..................... as the case may be. ________________________ _______________________ Date Registrar of Deeds” .

* Delete whichever is not applicable


No registration fee is payable in respect of the transaction referred to in paragraphs 3.4 and 3.5 above (sections 31(5)(b) and 31(6)(b)) respectively.


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NUCLEAR ENERGY ACT 1999 (ACT NO 46 OF 1999)


The Nuclear Energy Act, 1999 (Act No 46 of 1999), with the exception of section 4 which section came into operation 23 December 1999, herein after referred to as the Act, came into operation on 24 February 2000 as determined in Proclamation No R.5 of 2000. The said Proclamation is contained in Government Gazette number 20912, dated 21 February 2000.


The purpose of the Act is, inter alia, to provide for the incorporation of a public company, wholly owned by the State, known as the South African Nuclear Energy Corporation Limited, herein after referred to as the Corporation (preamble of the Act).


3.1 Description of the Corporation in deeds and documents The Corporation shall, in deeds and documents, be described as the “South African Nuclear Energy Corporation Limited, Registration Number 2000/003735/06”.

3.2 Corporation successor to property, assets and liabilities of Atomic Energy Corporation

3.2.1 In terms of section 8(2) of the Act, on 24 February 2000, the following passed to and vested in the Corporation: -

(a) All immovable property registered in the name of the Atomic Energy Corporation, Ltd contemplated in section 4(1) of the Nuclear Energy Act, 1993 (Act No 131 of 1993), herein after referred to as the Atomic Energy Corporation, and consisting of land, and any servitudes or other real rights with regard to land;

(b) land and any servitudes or other real rights with regard to land (including any right to use land temporarily) acquired by the Atomic Energy Corporation in terms of Act No 131 of 1993 for the purposes of or in connection with the functions, business or operations of the Atomic Energy Corporation;

(c) any other assets of which the Atomic Energy Corporation is the owner, immediately before 24 February 2000, for the purposes of Act No 131 of 1993, and

(d) any liabilities which were incurred by the Atomic Energy Corporation in terms of Act No 131 of 1993 or pursuant to its operations and activities there under, which are still outstanding immediately before 24 February 2000.

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3.2.2 Although section 8(3) of the Act is silent on the lodgement of an application and makes the lodgement of the relevant deed/s optional, the passing and vesting of assets and liabilities referred to in section 8(2) must be given effect to only when an application and the relevant title deed/s have been lodged. The relevant deed/s must be endorsed along the following lines:

“Endorsement in terms of section 8(3) of Act No 46 of 1999 The within-mentioned asset/liability* has, with effect from 24 February 2000, passed and vested, in terms of section 8(2) of Act No 47 of 1999, in the South African Nuclear Energy Corporation Limited, Registration Number 2000/003735/06.

Application filed with T/K/BC* ________________________ _______________________ Date Registrar of Deeds” . * Omit whichever is inapplicable

3.2.3 Examiners should take note that no act of registration shall be permissible unless and until the relevant deed/s is/are endorsed regarding the passing and vesting mentioned in paragraph 3.2.1.


No transfer duty, stamp duty or office fees shall be payable in respect of any transaction referred to in paragraph 3 above (section 8(3) of the Act).


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NATIONAL NUCLEAR REGULATOR ACT, 1999 (ACT NO 47 OF 1999)


The National Nuclear Regulator Act, 1999, (Act No 47 of 1999), hereinafter referred to as the Act, came into operation on 24 February 2000 as determined in Proclamation No R.5 of 2000. The said Proclamation is contained in Government Gazette number 20912 of 2000, dated 21 February 2000.


The purpose of the Act is, inter alia, to establish a juristic person known as the National Nuclear Regulator, hereinafter referred to as the Regulator, to regulate nuclear activities and to provide for matters connected therewith, (preamble of the Act).


3.1 Description of the Regulator in deeds and documents

The Regulator shall, in deeds and documents, be described as the

“National Nuclear Regulator established by section 3 of Act 47 of 1999”.

3.2 Passing of assets and liabilities to the Regulator

3.2.1 All assets and liabilities of the Council for Nuclear Safety as contemplated in section 33 of the Nuclear Energy Act, 1993 (Act No 131 of 1993) passed, with effect from 24 February 2000, to the Regulator (section 4(1) of the Act).

3.2.2 Although section 4(2) of the Act is silent on the lodgement of an application and makes the lodgement of the relevant deed/s optional, the passing of assets and liabilities referred to in section 4(1) must be given effect to only when an application and the relevant title deed/s have been lodged. The relevant deed/s must be endorsed along the following lines:

“Endorsement in terms of section 4(2) of Act No 47 of 1999 The within-mentioned asset/liability* has, with effect from 24/02/2000, passed, in terms of section 4(1) of Act No 47 of 1999, to the National Nuclear Regulator established by section 3 of Act 47 of 1999.

Application filed with T/K/BC* ________________________ _______________________ Date Registrar of Deeds” .

* Omit whichever is inapplicable.

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3.2.3 Examiners should take note that, no act of registration shall be permissible unless and until the relevant deed/s is/are endorsed regarding the passing mentioned in paragraph 3.2.1.


No transfer duty, or stamp duty or office fees shall be payable in respect of any transaction referred to in paragraph 3 above (section 4(3) of the Act).


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ARREAR DEBTS: DEEDS REGISTRATION TRADING ACCOUNT DETERMINATION OF TIME PERIOD AFTER WHICH OUTSTANDING DEBTS WILL BE IN ARREARS - REGULATIONS 4A AND 45(8) OF THE DEEDS REGISTRIES ACT, 1937 (ACT 47 OF 1937) AND MATTERS INCIDENTAL THERETO

1. LEGISLATIVE MEASURES TO AID DEBTOR CONTROL

1.1 The reluctance over the past couple of years of many of the Deeds Registration Trading Account’s debtors to settle their outstanding accounts timeously has left this office no alternative but to attempt to address the problem by legislative means.

1.2 Consequently, at a meeting of the Deeds Registries Regulations Board (the Board) held on the 22nd of October 1999, concerns were tabled regarding the lack of suitable legislative measures currently available to a Registrar of Deeds for the effective control of errant debtors.

1.3 The Board took note of the fact that the conveyancing fraternity, who make up the bulk of the Deeds Registration Trading Account’s clients, were largely responsible for debts outstanding for periods of 60 days and longer (hereinafter referred to as “arrears”).

1.4 Taking into account the serious effect that overdue debts are having on the Trading Account’s cash flow situation, and the fact that current measures for the collection of arrears were having limited effect, the Board resolved that a Registrar of Deeds should be provided with the necessary legislative means in order to address the issue.

1.5 A recommendation by the Board for appropriate amendments to the regulations framed under the Deeds Registries Act, 1937 (Act 47 of 1937) (hereinafter referred to as “the regulations” and “the Act” respectively), were approved by the Minister of Land Affairs, published as Government Notice No R395 in Government Gazette No 21096 dated 20 April 1999, and came into operation on 20 May 2000.

1.6 The amendments are as follows: -

1.6.1 The following regulation is inserted after regulation 4: -

“4A The expression ‘in arrear’ shall, for the purpose of regulation 45(8), mean unpaid on expiry of a period as determined by the Chief Registrar of Deeds, which period shall not be less than 30 days from the date of statement: Provided that, if the correctness of specific items on the statement is disputed by the relevant conveyancer, notary, firm or institution, such conveyancer, notary, firm or institution must, within a period of 21 days from the date of statement, bring such dispute to the attention of the registrar in writing and payment in respect of such disputed items shall, for the duration of the dispute, not be deemed to be in arrear.”

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1.6.2 Regulation 45 : The following sub-regulation is inserted after sub-regulation (7): -

“(8) Notwithstanding any other provisions of this regulation, a registrar may, while the deeds office account of a conveyancer, notary, firm or institution is in arrear, refuse to accept lodgement of deeds, bonds, documents or powers of attorney by or on behalf of such conveyancer, notary, firm or institution.”

1.7 The necessary authority for the Board to regulate as above was provided by the substitution of paragraph (b) of subsection (1) of section 10 of the Act in terms of section 1 of the Land Affairs General Amendment Act, 2000 (Act 11 of 2000), published in Government Gazette No 21028 dated 24 March 2000.

The amendments to section 10(1)(b) are as below - [words in bold type in square brackets] indicate omissions, and words underlined with a solid line indicate insertions: -

“(b) the fees of office (if any) to be charged in respect of any act, matter or thing required or permitted to be done in or in relation to a deeds registry, including any report made to the court by the registrar [in connection with any application or action to which he is not a party] in terms of this Act and the manner in which the payment of the fees may be enforced, which may include the suspension of lodgement or lodgement facilities for deeds or any other document by any person in default of payment of such fees.”

2. EFFECT OF NEW REGULATIONS

2.1 In terms of the above legislation, a Registrar of Deeds may, as from 20 May 2000, refuse to accept lodgement of deeds and documents by a debtor whose Deeds Office account is in arrears as defined in the regulations, read with the period determined in paragraph 7 of this directive.

2.2 In addition, the debtor’s credit facilities in respect of fees for registration of deeds and documents, purchase of information and copies, and any other Deeds Office service, will be suspended. All the debtor’s transactions with the Deeds Office will therefore have to take place on a cash-only basis. Procedures currently in place for the suspension of credit facilities will continue to apply.

3. PROCEDURES AND NOTIFICATION

3.1 Proper procedures are in place for a Registrar of Deeds to give effect to the regulations. Debtors who are in arrears will be notified, in writing, of the measures to be imposed against them.

3.2 The letter of notification will either be posted by registered mail to the debtor’s last known address, or personally handed to a partner or a senior representative of such debtor. In last mentioned case the recipient of the letter will be required to acknowledge receipt thereof by means of his/her signature on the copy to be filed of record in the office of the Registrar of Deeds.

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3.3 In addition, copies of the letter of notification will be submitted to both the Chief Registrar of Deeds and the relevant Law Society for their information and possible action.

3.4 The letter of notification will include the following: -

3.4.1 A detailed statement reflecting the amounts constituting the debtor’s arrears, (which includes interest on those amounts outstanding for more than 60 days);

3.4.2 Demand for payment of the arrears;

3.4.3 Notification of the fact that, unless full payment of the arrears is received within 21 days from date of statement, the debtor’s lodgement and credit facilities will be suspended as from a date specified;

3.4.4 A request for a written notification to be directed to the relevant Registrar of Deeds within 21 days from the date of the statement, setting out full details of transactions disputed by the debtor;

3.4.5 A reminder that: -

3.4.5.1 Disputed items shall, for the duration of the dispute, not be deemed to be arrears;

3.4.5.2 The remaining balance of the amounts outstanding for more than 60 days on the debtor’s account (see paragraph 7) will, after notification of disputed amounts, continue to constitute arrears and are payable immediately;

3.4.5.3 In the absence of a notification of dispute, it will be assumed that the debtor accepts the statement and its contents as correct; and

3.4.5.4 Apart from the suspension of lodgement and credit facilities, failure to pay the arrears by the required date will further result in the debtor being handed over to the State Attorney for legal action.

4. DEEDS LODGED PRIOR TO IMPOSITION OF MEASURES AGAINST DEBTOR

4.1 Where a debtor whose account is in arrears lodged deeds and/or documents prior to the date mentioned in paragraph 3.4.3, and those deeds and/or documents are not yet executed/ registered by such date, the following procedures will apply: -

4.1.1 The debtor will be required to pay the relevant registration fee, in cash, before execution/registration can take place;

4.1.2 The pre-payment of registration fees must take place when the deeds or documents are at “fees” or “prep” or “counter”, as the case may be, and not at lodgement of such deeds or documents; and

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4.1.3 The debtor will be required to produce proof of payment of registration fees at execution.

5. RE-INSTATEMENT OF LODGEMENT FACILITIES

5.1 When a debtor whose lodgement facilities had been suspended subsequently effects full payment of its arrears, the Registrar of Deeds concerned will notify such debtor, in writing, that its lodgement facilities have been re-instated from a given date.

5.2 The notification of re-instatement of lodgement facilities will be posted by registered mail to the debtor’s last known address or personally handed to a partner or a senior representative of such debtor. In last-mentioned case the recipient of the letter must acknowledge receipt thereof by means of his/her signature on the copy to be filed of record in the office of the Registrar of Deeds.

5.3 In addition, copies of the notification will be submitted to both the Chief Registrar of Deeds and the local Law Society for their information.

6. RE-INSTATEMENT OF CREDIT AND OTHER FACILITIES

6.1 The notification of re-instatement of lodgement facilities mentioned in the preceding paragraph will include notification to the debtor that its credit facilities have been re-instated or that the Registrar of Deeds has decided to extend the suspension. It is important to note that a Registrar of Deeds is under no obligation to grand credit facilities to any debtor or member of the public contracting business with the Deeds Office. Also note the following: -

6.1.1 The Deeds Registration Trading Account was granted special permission by the Department of State Expenditure to grant credit facilities to its debtors in respect of fees for registration of deeds and documents, purchase of information and copies, and any other Deeds Office service. This is an exception to the general rules pertaining to transactions concluded with the State. This concession was made for practical reasons to accommodate the unique administrative and accounting procedures which apply to a Trading Account, it is not obligatory in terms of any law; and

6.1.2 In terms of section 7 of the Act, a Registrar of Deeds is obliged to furnish registration- and related information, provided that the prescribed fees are paid. A Registrar may therefore insist on pre-payment of the prescribed fee before supplying information and copies.

6.2 Therefore, even where a debtor pays its arrears in full, the Registrar concerned may, at his or her sole discretion, refuse to re-instate that debtor’s credit facilities. Such a debtor will then be obliged to transact all its business with the Deeds Office on a cash-only basis. This will include: -

6.2.1 Cash payment of fees for the purchase of information and copies, and any other Deeds Office service; and

6.2.2 Pre-payment of registration fees for deeds and documents - existing procedures in this regard will apply (see paragraph 4).

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7. DETERMINATION OF PERIOD AFTER WHICH DEBTS SHALL BE DEEMED TO BE IN ARREAR

In accordance with the discretion afforded the Chief Registrar of Deeds in the definition of the expression “in arrears”, contained in regulation 4A of the Act, the period, referred to in the aforementioned definition, and after which outstanding debts due to the Deeds Registration Trading Account shall, for the purpose of regulation 45(8) of the Act, be deemed to be in arrears, is hereby determined to be 60 days from date of statement.


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ARREAR DEBTS: DEEDS REGISTRATION TRADING ACCOUNT PROCEDURES FOR THE CONTROL OF DEBTORS PURSUANT TO THE COMING INTO OPERATION OF REGULATIONS 4A AND 45(8) OF THE DEEDS REGISTRIES ACT, 1937 (ACT 47 OF 1937)

1. DEFINITIONS

In this directive, unless the context otherwise indicates: -

1.1 “Arrears” shall mean debts outstanding for a period in excess of that determined Chief Registrar’s Circular No 7 of 2000 - (paragraph 3 refers), and shall include interest charged on amounts outstanding for more than 60 days;

1.2 “Arrears list” shall mean the list printed by the cashier and described in paragraph 4 hereof;

1.3 “Arrear debtor” shall mean a debtor: -

1.3.1 Identified by a Registrar of Deeds as having debts outstanding for longer than the period determined by the Chief Registrar of Deeds in Chief Registrar’s Circular No 7 of 2000 - (paragraph 3 refers); and

1.3.2 To whom a Registrar of Deeds, in terms of the discretion afforded him or her in regulation 45(8), has decided to apply the measures contained in this directive.

And “arrear firm” shall have a corresponding meaning.

1.4 “Act” shall mean the Deeds Registries Act, 1937 (Act 47 of 1937);

1.5 “Commencement date” shall mean the date upon which regulations 4A and 45(8) cane unto operation - (i.e. 20 May 2000) - see date of publication mentioned in paragraph 2.2 below, read with section 9(9) of the Act;

1.6 “Effective date” shall mean the date, contemplated in paragraph 7.5 hereof, from which the measures prescribed in this directive are determined by a Registrar of Deeds to be applicable to an arrear debtor;

1.7 “In arrears” shall have the meaning assigned thereto by regulation 4A i.e. unpaid on expiration of the period determined in paragraph 3 hereof.

1.8 “Statement” shall mean the monthly statement produced by the Deeds Office cashier in respect of an arrear firm’s account; and

1.9 “Date of Statement” shall mean the date upon which a debtor’s statement is produced by the Deeds Office cashier.

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2. APPLICABLE LEGISLATION

This directive, and the procedures contained herein, is a direct consequence of the following: -

2.1 Substitution of paragraph (b) of subsection (1) of section 10 of the Act in terms of section 1 of the Land Affairs General Amendment Act, 2000 (Act 11 of 2000), published in Government Gazette No 21028 dated 24 March 2000.

The amendments to section 10(1)(b) are as below - [words in bold type in square brackets] indicate omissions, and words underlined with a solid line indicate insertions: -

“(b) the fees of office (if any) to be charged in respect of any act, matter or thing required or permitted to be done in or in relation to a deeds registry, including any report made to the court by the registrar [in connection with any application or action to which he is not a party] in terms of this Act and the manner in which the payment of the fees may be enforced, which may include the suspension of lodgement or lodgement facilities for deeds or any other document by any person in default of payment of such fees.”

2.2 Amendment to the regulations by virtue of Government Notice No R395, dated 20 April 2000, published in Government Gazette No 21096 dated 20 April 2000, (date of coming into operation : 20 May 2000 - section 9(9) of the Act refers), by: -

2.2.1 Inserting sub-regulation 8 of regulation 45, reading as follows: -

“8) Notwithstanding any other provisions of this regulation, a registrar may, while the deeds office account of a conveyancer, notary, firm or institution is in arrear, refuse to accept lodgement of deeds, bonds, documents or powers of attorney by or on behalf of such conveyancer, notary, firm or institution.”

2.2.2 Defining the expression “in arrears”, by the insertion of regulation 4A, reading as follows: -

“4A) The expression ‘in arrear’ shall, for the purpose of regulation 45(8), mean unpaid on expiry of a period as determined by the Chief Registrar of Deeds, which period shall not be less than 30 days from the date of statement: Provided that, if the correctness of specific items on the statement is disputed by the relevant conveyancer, notary, firm or institution, such conveyancer, notary, firm or institution must, within a period of 21 days from the date of statement, bring such dispute to the attention of the registrar in writing and payment in respect of such disputed items shall, for the duration of the dispute, not be deemed to be in arrear.”

3. DETERMINATION OF TIME PERIOD AFTER WHICH DEBTS WILL BE IN ARREARS - (REGULATIONS 4A AND 45(8) REFER)

The period in the definition of the expression “in arrears”, referred to in regulation 4A, after which outstanding debts of the Deeds Registration Trading Account shall, for the purpose of regulation 45(8), be deemed to be in arrears, has been determined to be 60 days from date of statement. Chief Registrar’s Circular No 7 of 2000 refers.

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4. IDENTIFICATION OF DEBTORS FOR THE PURPOSE OF REGULATION 45(8)

4.1 In order to identify arrear debtors for the purposes of regulation 45(8), facility is available in the cashier’s software programme for printing an alphabetical arrears list at each Deeds Office. This list will contain only those debtors whose accounts reflect amounts outstanding for more than 60 days.

4.2 Although the printing of the arrears list will be possible at any time, it is suggested that printing takes place at the end of the month.

4.3 The arrears list will, in addition to the name of the arrear firm and its account number, also reflect the amounts outstanding in respect of each arrear firm under the headings “current”, “30+ days”, “60+ days”, “90+ days” and “Total”. These amounts are important for the purpose of notifying arrears debtors - see paragraph 11.

4.4 The amounts reflected on the arrears list represent registration fees captured by the data section during a particular month up to and including the last Friday of the month, i.e. the day upon which the financial staff performs the Trading Account’s “month-end” and the “closure of the books” for that month.

4.5 All payments made by debtors up to the date upon which the arrears list is produced, are taken into account and all balances are therefore reduced accordingly.

4.6 NB: The computer software which produces the arrears list deducts any payments made by debtors firstly from the amount in the “total” column, and thereafter from the amount in the “90+ days” column. If the payment exceeds the amount in the “90+ days” column, such excess is deducted from the amount in the “60+ days” column, the “30+ days” column, and so on.

5. INSTRUCTION AND TRAINING OF DEEDS PERSONNEL

5.1 A Registrar of Deeds shall ensure that the relevant personnel are adequately informed and sufficiently trained to give effect to the regulations and the procedures prescribed in this directive.

5.2 The following personnel, i.e.: - • ChiefDataTypist; • Cashier; • Lodgementpersonnel; • Informationpersonnel; • Allrelevantsupervisors;and • All officers responsible for the daily execution of deeds, must each be given a copy of this circular and instructed to refer all queries regarding the suspension of lodgement- and credit facilities to the Registrar of Deeds.

6. COMBINED APPLICATION OF MEASURES

In addition to suspend ding their lodgement facilities, the following measures must be applied to encourage arrear debtors to settle their arrears: -

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6.1 Credit facilities in respect of fees for registration of deeds and documents, purchase of information and copies, and any other Deeds Office service, must be suspended; and

6.2 Pre-payment procedures must be enforced in respect of deeds previously accepted for lodgement but not yet executed.

7. REFUSAL OF LODGEMENT AND IMPOSITION OF OTHER MEASURES DUTIES OF REGISTRAR OF DEEDS

With effect from 20 May 2000, a Registrar of Deeds will be entitled (at his sole discretion) to give effect to the provisions of regulation 45(8), which will entail the following functions: -

7.1 The cashier must be instructed to print the monthly arrears list - see paragraph 4.1;

7.2 The arrears list, together with the printed statements of the arrears firms appearing thereon, must be submitted to the Registrar of Deeds;

7.3 The Registrar of Deeds must determine which of the arrear firms appearing on the arrears list warrants the application of the measures prescribed in this directive. After considering all relevant factors, the Registrar must delete the names of those arrear firms to whom the measures aforesaid are not to be applied, and thereafter sign and date such deletion; and

7.4 The Registrar of Deeds must then affix the following authorisation to the arrears list and sign and date same: -

“Ihavedeterminedthattheaccountsofthearrearfirmswhosenamesappearinthis/theattached list, (excluding those deleted under my signature), are at present in arrears for the purposes of regulation 45(8) of the Deeds Registries Act, 1937 (Act 47 of 1937) and have, in terms of the discretion afforded me in the said sub-regulation, decided not to accept lodgement of deeds or documents by these arrear firms with effect from ..........(*)(†)

In addition, all credit facilities in respect of fees for registration of deeds and documents, purchase of information and copies, and any other Deeds Office service, are hereby suspended in respect of the arrear firms whose names appear on the attached list with effect from the date mentioned above.” ________________________ _______________________ Date Registrar of Deeds” .

7.5 (*) The date upon which the refusal of lodgements referred to in the preceding paragraph is to take effect (“the effective date”) must be calculated by the Registrar of Deeds and shall not be less than 21 days from the date of the statements which accompany the arrears list.

7.6 (†) In instances where the Registrar of Deeds determines different effective dates for different arrear firms, the relevant dates must be inserted on the arrears list against the names of the various arrear firms.

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8. DISTRIBUTION OF DOCUMENTATION

To ensure uniform and effective application of measures, the arrears list and authorisation referred to in paragraph 7.4 must be made available to the personnel mentioned in paragraph 5.2. The availability of this documentation is of specific importance to the following personnel: -

8.1 The Cashier - (for the purposes of paragraph 12.1.1);

8.2 Officers responsible for the daily execution of deeds (for the purposes of paragraph 10.2);

8.3 Personnel who are responsible for furnishing information and supplying copies of deeds and documents (for the purposes of paragraph 9.2); and

8.4 Personnel responsible for receiving lodgement of deeds and documents for the purpose of refusing lodgements tendered by arrear firms.

9. SUSPENSION OF CREDIT FACILITIES

9.1 Credit facilities in respect of all arrear firms must be suspended as from the effective date - see paragraph 7.5 supra; and

9.2 The sale of information, copies of deeds and documents and any other services provided by the Deeds Office to arrear firms must, from the effective date, be conducted on a cash basis only (see paragraph 7.5 supra).

10. PRE-PAYMENT IN RESPECT OF DEEDS ALREADY LODGED BUT NOT EXECUTED

In respect of all deeds and documents, lodged prior to the effective date mentioned in paragraph 7.5 by a arrear firm, but which deeds or documents have not yet executed/registered by such date, the following procedures will apply: -

10.1 The arrear firm will be required to pay the relevant registration fee, in cash, to the cashier before execution/registration of deeds or documents lodged by it can take place;

10.2 The Registrar of Deeds, Deputy Registrar(s) of Deeds, and all officials responsible for the daily execution of deeds will each ensure that deeds lodged by arrear firms are not executed unless proof of pre-payment of registration fees is produced;

10.3 The pre-payment of registration fees to the Deeds Office cashier must take place while the relevant deeds are at “fees” or “prep” or “counter”, as the case may be, and not at lodgement of such deeds or documents;

10.4 The pre-payment must be credited by the cashier against the account of the lodging firm and not against account no 888;

10.5 The fees endorsement on the deed or document must reflect the prescribed fee in the usual manner. No indication of pre-payment must appear in the fees endorsement;

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10.6 An endorsement evidencing pre-payment, and reflecting the relevant receipt number, must be affixed to the deed or document. Such endorsement must not encroach upon the fees endorsement; and

10.7 Data typists must be instructed to ignore all evidence of the pre-payment of the registration fee for all data capturing and invoicing purposes. The prescribed fee (as reflected in the fees endorsement), must be debited against the account of the lodging firm in the usual manner and not against account no 888.

11. NOTIFICATION - PROCEDURES

All arrear firms must be notified, in writing, of the steps to be taken against them as a result of their arrear debts. The following procedures shall apply: -

11.1 The notification must be in the form of the letter prescribed in Annexure A hereto and must be signed by the Registrar of Deeds;

11.2 The notification must set out all amounts outstanding in respect of the arrear firm’s account as reflected on the arrears list - see paragraph 4.3;

11.3 The letter of notification must be posted or handed to the arrear firm as soon as possible after production of its statement;

11.4 The notification must either be posted by registered mail to the arrear firm’s last known address, or personally handed to a partner or a senior representative of such arrear firm. In last mentioned case the recipient of the letter must acknowledge receipt thereof by means of his/her signature on the copy to be filed of record in the office of the Registrar of Deeds;

11.5 The letter must in all cases be accompanied by the relevant monthly statement;

11.6 Copies of the letter and the statement must be forwarded to the Chief Registrar of Deeds for control purposes; and

11.7 Copies of the letter and the statement must be forwarded to the relevant Law Society for its information and possible action.

12. EFFECT OF PAYMENT OF ARREARS

12.1 Where an arrear firm, notified in terms of paragraph 11, subsequently effects any payment against its account: -

12.1.1 The cashier must immediately advise the Registrar of Deeds of the payment;

12.1.2 The cashier must furnish the Registrar of Deeds with an updated arrears list for the purpose of determining whether the payment in question has eliminated the arrears;

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12.1.3 If the Registrar of Deeds has determined that the firm is no longer in arrears, the firm’s lodgement facilities must be re-instated as soon as is practically possible; and

12.1.4 The firm’s credit facilities, (in respect of fees for registration of deeds and documents, purchase of information and copies, and any other Deeds Office service), may be re-instated. This is optional at the discretion of the Registrar of Deeds. (See paragraph 4 and footnote to Annexure B).

12.2 Upon receipt of notification of such payment, the Registrar of Deeds must:-

12.2.1 Compare the payment made by the firm with the figures reflected on an up-to-date arrears list to confirm that full payment of arrears in respect of the firm’s account has taken place;

12.2.2 Inform the firm in writing of the re-instatement of its lodgement (and where deemed advisable, its credit facilities as well), by means of a letter in the form of Annexure B hereto;

12.2.3 Furnish the personnel mentioned in paragraph 5.2 with a copy of the letter;

12.2.4 Forward a copy of the letter to the Chief Registrar of Deeds; and

12.2.5 Forward a copy of the letter to the relevant Law Society.

12.3 The notification of re-instatement of facilities must be posted by registered mail to the firm’s last known address or personally handed to a partner or a senior representative of such firm. In last mentioned case, the recipient of the letter must acknowledge receipt thereof by means of his/her signature on the copy to be filed of record in the office of the Registrar of Deeds.

13. PRIOR DIRECTIVES RELATING TO DEBTOR CONTROL

The procedures contained in my memorandum A6/8/3 dated 30 April 1999, relating to undertakings being required from arrear debtors for the down-payment of their outstanding debts, must still be applied at the discretion of the Registrar of Deeds.


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ANNEXURE “A”

OUTSTANDING DEBTS: DEEDS REGISTRATION TRADING ACCOUNT: ACCOUNT NO PTA0027

1. According to the records of this office, the outstanding balance of your account No ............... amounts to R{Total of (a)+(b)+(c)+(d)+(e)}, which includes interest on those amounts outstanding for more than 60 days. This figure is made up as follows:

Current 30+ days 60+ days 90+ days

R..(a).... R..(b).... R..(c).... R..(d)....

The relevant statement, dated ......... has already been submitted to you. A further copy thereof is however attached for your information.

2. The amount of R..(c)+(d)...., outstanding for more than 60 days in (hereinafter referred to as “arrears”) for the purpose of regulation 45(8) of the Deeds Registries Act, 1937 (Act 47 of 1937), read with Chief Registrar’s Circular No 7 of 2000.

3. This office therefore demands immediate payment from your firm of the aforesaid arrears of R..(c)+(d).... Note however the following: -

3.1 If the correctness of any specific transaction(s) included in the arrears reflected on the accompanying statement is disputed by yourselves, you may notify this office, in writing, and within a period of 21 days from the date of the accompanying statement, of such dispute. The notification must contain the necessary information to positively identify the transactions concerned and must set out full reasons for dispute in respect of each separate transaction;

3.2 Disputed items shall, for the duration of the dispute, not be deemed to be arrears;

3.3 The remaining balance of the arrears will, after notification of disputed amounts, continue to constitute arrears and is payable immediately; and

3.4 In the absence of a notification of dispute, it will be assumed that you accept the statement and its contents as correct.

4. Should payment of the arrears, (subject to written notification of disputed items mentioned above), not be received by this office within 21 days from date of statement mentioned in paragraph 1 supra, the following measures will be introduced in my office in respect of your firm with effect from .....................: -

4.1 The lodgement of deeds and documents by your firm will be refused in accordance with the discretion afforded me by regulation 45(8) aforesaid; and

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4.2 All credit facilities previously available to your firm in respect of fees for registration of deeds and documents, purchase of information and copies, and any other Deeds Office service, will be suspended. All business with your firm in this regard will therefore be conducted on a cash basis only.

5. In respect of all deeds and documents lodged by your firm prior to the date mentioned in paragraph 4, but not yet executed/registered by such date, the following procedures will apply: -

5.1 You will be required to pay the relevant registration fee, in cash, before execution/registration can take place;

5.2 The pre-payment of registration fees must take place while the deeds or documents are at “fees” or “prep” or “counter”, as the case may be, and not at lodgement thereof; and

5.3 You will be required to produce proof of payment of registration fees at execution.

6. Please bear in mind that, apart from the above measures to be instituted against your firm, refusal to pay the arrears in respect of your account by the date given above will further result in your firm being handed over to the State Attorney for legal action.

7. The timeous payment of the arrears in respect of your account would therefore be appreciated.

SignedREGISTRAR OF DEEDS

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ANNEXURE “B”

LODGEMENT AND CREDIT FACILITIES : ACCOUNT NO PTA0027

1. My evenly numbered letter dated ............. refers.

2. According to the records of this office the amount outstanding for more than 60 days in respect of the above account, and representing arrears for the purpose of regulation 45(8) of the Deeds Registries Act, 1937 (Act 47 of 1937), have been paid in full.

3. You are hereby notified that your lodgement facilities, suspended in terms of the above regulation, have been re-instated with effect from ......................

4. *In addition, your firm’s credit facilities in respect of fees for registration of deeds and documents, purchase of information and copies, and any other Deeds Office service, will be re-instated with effect from last-mentioned date.

5. *However, your firm’s credit facilities will remain suspended. You will therefore continue to conduct all your business with this office on a cash-only basis. This will entail the pre-payment in cash of all fees for registration of deeds and documents, purchase of information and copies, and any other Deeds Office service. This suspension may be reviewed in future, depending on your payment record.

6. Your cooperation in effecting payment of the aforementioned arrears is appreciated and we trust that you will in future ensure that your account is paid timeously.

SignedREGISTRAR OF DEEDS

* Use appropriate paragraph 4 only. The Registrar of Deeds is not obliged to re-instate credit facilities and may elect to reconsider this at a future date.

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INDEPENDENT COMMUNICATIONS AUTHORITY OF SOUTH AFRICA ACT 2000 (ACT NO 13 OF 2000)


The Independent Communications Authority of South Africa Act 2000 (Act No 13 of 2000), herein after referred to as the Act, shall, with the exception of section 18(2), come into operation on a date to be fixed by the President by proclamation in the Gazette. Section 18(2) must be regarded as having come into operation on 30 March 2000 (section 25).


The purpose of the Act, inter alia, is to provide for the establishment of the Independent Communications Authority of South Africa, the dissolution of the Independent Broadcasting Authority and the South African Telecommunications Regulatory Authority and to pass all the assets, rights, liabilities and obligations of the former authorities to the Independent Communications Authority of South Africa.

3. IMPACT OF CERTAIN PROVISIONS OF THE ACT ON DEEDS REGISTRIES AND REGISTRATION PROCEDURES

3.1 Description of the Authority in deeds and documents

The Independent Communications Authority of South Africa, herein after referred to as the Authority, shall in deeds and documents be described as the

“IndependentCommunicationsAuthorityofSouthAfricaestablishedbysection3(1)ofActNo13of2000”.

3.2 Passing of assets and liabilities to the Authority

All the assets, rights, liabilities and obligations which vest, immediately before a date to be determined by the Minister of Communications by notice in the Gazette, in the former Independent Broadcasting Authority, established by section 3 of the Independent Broadcasting Act, 1993 (Act No 153 of 1993) and the South African Telecommunications Regulatory Authority, established by section 5 of the Telecommunications Act, 1996 (Act No 103 of 1996), shall pass to the Authority on the said date (section 20(1)).

4. ENDORSEMENT OF TITLE DEEDS

Although section 20(2) of the Act is silent on the lodgement of an application and the relevant title deed/s, the passing of assets and liabilities referred to in section 20(1) must be given effect to only when an application and the relevant title deed/s have been lodged. The relevant title deed/s must be endorsed along the following lines:

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“Endorsement in terms of section 20(2) of Act No 13 of 2000 The within-mentioned asset/liability* has, with effect from ......................., passed, in terms of section 20(2)ofActNo13of2000,totheIndependentCommunicationsAuthorityofSouthAfrica. Application filed with T/K/BC*

________________________ _______________________ Date Registrar of Deeds” . * Omit whichever is inapplicable

Examiners should take note that no act of registration shall be permissible unless and until the relevant title deed/s is/are endorsed regarding the passing mentioned in paragraph 3.2.


No transfer duty, stamp duty or office fees shall be payable in respect of any transaction referred to in paragraph 3 above (section 20(2) of the Act).


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TRANSFER DUTY ACT, 1949 (ACT NO 40 OF 1949)

1. In terms of section 92 of the Deeds Registries Act, 1937, (Act No 47 of 1937) a deed of grant or deed of transfer of land is registrable only if it is accompanied by a receipt or certificate from a competent public revenue officer to the effect that taxes, duties and fees, on the property concerned, payable to the Government or any provincial administration have been paid.

2. The Commissioner of the South African Revenue Services (SARS), in a minute dated 18 October 2000, gave a ruling to the effect that, with effect from 1 November 2000, the transactions below may be registered without the need to lodge a receipt or an exemption certificate from SARS. These transactions are as follows:

1. Special exemptions provided for in other legislation.

2. Exemptions provided for in subsections (1)(a), (1)(b), (1)(bB) and (1)(e)(i) of section 9 of the Transfer Duty Act, 1949, (Act No 40 of 1949).

3. The exemption provided for in section 9 (1)(e)(i) is, however, not applicable where the transfer is in terms of a joint will where massing has taken place or where the transfer is in terms of a single will and VAT is payable.

4. A Registrar of Deeds is not in a position to determine whether VAT is payable or not. At a meeting held on 2 November 2000 with officials of SARS and representatives of the conveyancing fraternity, it was resolved that, in respect of transfers in terms of a single will, a certificate/affidavit to the effect that VAT is not payable, prepared by the executor and approved by SARS, will have to be lodged as proof that no VAT is payable, or an exemption certificate issued by the Receiver of Revenue must be lodged.

5. As the above mentioned practice enjoys the support of all the interested parties, it must, therefore, be implemented with immediate effect in all the Deeds Registries.


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THE REGISTRATION OF IMMOVABLE PROPERTY IN FAVOUR OF TRUSTEES FOR THE TIME BEING OF TRUSTS: RE JOUBERT AND OTHERS v VAN RENSBURG AND OTHERS

1. In Joubert and Others v Van Rensburg and Others 2001 (1) SA 753, Flemming DJP held that, the registration in the name of the trustees from time to time is a mere practice for which no sanction is found in the Deeds Registries Act and which is not tolerated by that statute. The Judge further held that, as a consequence of the provisions of section 16 of the Deeds Registries Act, which caters only for the conveyance of title to another “person”, transfer could not be passed to a trust, as a trust is not a “person”.

2. Admittedly, the views referred to above are, in deed, correct but only in so far as the question of section 16 of the Deeds Registries Act not providing for a mechanism of transferring land to a trust is concerned. The said lack of a mechanism to transfer land to a trust is, in deed, a lacuna in the Deeds Registries Act which needs to be urgently and suitably addressed. However, this lacuna is not only restricted to trusts, but also applies to all associations of persons without legal persona. It must, however, be noted that the said section 16 is only a procedural provision and not an enabling provision as well. In other words, the said section does not endow persons with the capacity to be registered owners of land, but merely provides for a procedure that must be followed when land is being transferred. On the other hand, section 11 of the Trust Property Control Act, 1988, (Act No 57 of 1988), hereinafter referred to as “the TPCA”, subject to the provisions of the relevant trust instrument, is an enabling provision which endows a trust with the capacity of being a registered owner of land. Section 16 of the Deeds Registries Act, being a procedural provision, can, therefore, not override the provisions of the relevant trust instrument and section 11 of the TCPA which is, as stated above, an enabling provision.

3. As an interim measure, it has been decided to retain the practice pertaining to trusts and associations as it existed prior to the aforesaid referred to case, pending an amendment to the Deeds Registries Act, 1937 (Act No 47 of 1937).

4. The rationale behind the decision to continue with the current practice is, in addition to what has been stated in paragraph 2 supra, inter alia,

• the necessity of complying with section 6 of the TPCA, which provides that any person appointed as trustee can act in that capacity only if authorised thereto in writing by the Master. This section makes it clear that a trustee, when dealing with trust property, can act in no other capacity other than a representative capacity; • thenecessityofcomplyingwithsection11(b)oftheTPCAwhichprovidesthattrustproperty must be registered in such a manner as to make it clear from the registration that it is trust property and;

• thenecessitytoavoidcompromisingthelegalityofalreadyregistereddeeds.

5. A Circular prescribing a procedure to be followed in future will be issued once the amendments referred to above have been effected.


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DONATIONS TAX / PART VI OF ACT 43 OF 1955

1. Chief Registrar’s Circular No 3/1955 provides for the notification of the Commissioner of Inland Revenue with regard to details of donations where no transfer duty has been paid. This procedure was necessitated by the provisions of part VI of the Income Tax Act, 1955 (Act No 43 of 1955). The donations tax provisions of the 1955 Act were, however, repealed by section 111(1) of the Income Tax Act, 1962 (Act No 58 of 1962). Donations tax is currently regulated by part V of chapter II of the 1962 Act. The 1962 Act, however, does not require the Registrar of Deeds to notify the Commissioner with regard to details of donations.

2. Section 12(1)(a) of the Transfer Duty Act, 1949 (Act No 40 of 1949) debars the Registrar of Deeds from recording an acquisition of property unless proof is produced Athat any duty payable under this Act or any other law has been paid in respect of the acquisition in question. It is clear from the abovementioned section that the requisite proof is not limited to duty payable in terms of the Transfer Duty Act but extends to duties payable in terms of other Acts as well. It is logical that the said duties include duties payable in terms of the Income Tax Act. It also follows, as a matter of logic, that the source of the referred to proof can be non other than the Commissioner.

3. The transactions that are registrable without the need for production of the proof referred to above are listed in Chief Registrar’s Circular No 14/2000 and need not be repeated here.

4. In the light of the provisions of part V of chapter II of the Income Tax Act, 1962 and the provisions of section 12 of the Transfer Duty Act, 1949 the procedure mentioned in Chief Registrar’s Circular No 3/1955 is redundant and serves no practical purpose.

5. Chief Registrar’s Circular No 3/1955 is, therefore, hereby repealed.


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SOUTH AFRICAN WEATHER SERVICE ACT, 2001 (ACT NO 8 OF 2001)


The South African Weather Service Act, 2001 (Act No 8 of 2001), herein after referred to as the Act, came into operation on 15 July 2001 (Proclamation No R 37 of 2001 contained in Government Gazette number 22448, dated 13 July 2001).


The purpose of the Act, inter alia, is to provide for the establishment of a juristic person to be known as the South African Weather Service, and to provide for matters connected therewith.


3.1 Description of the South African Weather Service in deeds and documents The South African Weather Service, herein after referred to as the “Weather Service”, shall in deeds and documents be described as the

“SouthAfricanWeatherServiceestablishedbysection2(1)ofActNo8of2001”.

3.2 Transfer of certain assets and liabilities to Weather Service All the assets, rights, liabilities and obligations determined by the Minister responsible for the administration of the Act, shall pass to the Weather Service (section 19(1)). In terms of section 19(2) of the Act, these assets shall include buildings and land allocated to the Chief Directorate : Weather Bureau, as well as the remainder of part 264 Garsfontein 374, Registration Division JR, Gauteng.

3.3 Endorsement of Title Deeds In terms of section 19(3) of the Act the Registrar of Deeds must upon application and submission of the relevant title deed/s by the Board of the Weather Service, effect such endorsements on the title deeds as are necessary in order to register the vesting referred to in paragraph 3.2.

The application must be filed under a T/K/BC code, as the case may be, and the title deed/s must be endorsed along the following lines:

“Endorsement in terms of section 19(3) of Act No 8 of 2001 The within-mentioned asset/right/liability* has, with effect from 15 July 2001, passed to the SouthAfricanWeatherService,intermsofsection19(1)ofActNo8of2001. Application filed with T/K/BC*

________________________ _______________________ Date Registrar of Deeds” . * Omit whichever is inapplicable.

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Examiners should take note that no act of registration shall be permissible unless and until the relevant title deed/s is/are endorsed regarding the passing mentioned in paragraph 3.2


No office fees shall be payable in respect of any transaction referred to in paragraph 3 above (section 19(4) of the Act).


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COMMONAGE SERVITUDES OVER PROPERTIES OWNED BY MUNICIPALITIES

1. BACKGROUND

The Department of Land Affairs has embarked on a commonages programme and shall make funds available to municipalities for the purposes of pursuing such a programme. In order to make certain that such a programme achieves the desired effect, a policy of registering notarial deeds of commonage servitudes has been adopted.

2. REGISTRATION OF NOTARIAL DEEDS

Notarial deeds must be registered in accordance with the copy annexed hereto, and the title deeds be endorsed as follows:

“BynotarialdeedNo.K..........................Sdated.......................................,thewithinpropertyis subject to the following conditions, namely:

The property may not be encumbered or alienated and transferred without the written consent of the PremieroftheProvince;

The property may only be used as a commonage, as set out in the Land Use Management Plan referred to in the said notarial deed, for the benefit of the residents within the jurisdiction ofthemunicipalityof..........................;and

Certain ancillary rights as will more fully appear from the said notarial deed.

________________________ _______________________ Date Registrar of Deeds” ....

Examiners must ensure that no transactions regarding the affected properties are registered without the Premier’s consent.


The usual registration fee is payable.

3. REPEAL OF CHIEF REGISTRAR’S CIRCULAR 12 OF 1998

Chief Registrar’s Circular No 12 of 1998 is hereby repealed.

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Protocol No .................

NOTARIAL DEED OF COMMONAGE SERVITUDE K.

BE IT HEREBY MADE KNOWN:

THAT on this the ...................................day of ...........................(year)

before

me .................................................................................................................

Notary Public, by lawful authority duly admitted and practising at ..........................

Province of .......................................... and in the presence of the subscribing witnesses, personally came and appeared ........................................................................................... ................................................................. in his/her capacity as duly authorised agent by virtue of a Special Power of Attorney signed at .................................... on ........................... and granted by the

1. MUNICIPALITY

represented by ...................................................................................................... ..................................................................... in his/her capacity as Municipal Manager / Chief Executive Officer for the time being duly authorised by virtue of a Resolution of its Council passed at ......................................... on ...........................

(hereinafter called the OWNER)

and ..................................................................................................................

in his/her capacity as duly authorised agent by virtue of a Special Power of Attorney signed at ............................................................ on ............................................... and granted by the

2. PREMIER OF THE PROVINCE

represented by .........................................................

(hereinafter called the PREMIER)

which said Special Powers of Attorney and certified copy of which Resolution have this day been exhibited to me and now remain filed in my Protocol.

AND THE SAID APPEARER DECLARED THAT:

WHEREAS the owner is the registered owner of

(hereinafter called the PROPERTY)

AND WHEREAS the owner acquired the property through funds obtained from the National Department of Land Affairs but subject to the express condition that the property shall be used as a commonage.

AND WHEREAS the owner accepted the funds subject to the aforesaid restrictive condition, and subject to the further condition that the property shall vest in the Province in which the property is situated, in the event of non compliance by the owner of the condition requiring the use of the property as a commonage by the residents within the jurisdiction of the owner with special emphasis on the poor and less privileged and the conditions ancillary thereto as set out hereinafter;

NOW THEREFORE THESE PRESENTS WITNESS:

1. The land may not be encumbered, alienated or transferred without the written permission of the Premier.

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2. The owner must ensure the use of the property as a commonage for the benefit of the residents within the jurisdiction of the owner with special emphasis on the poor and less privileged (hereinafter referred to as the beneficiary group) and must hold and administer it in terms of the provisions of this Deed.

3. The owner must establish a representative management body comprising at least 1 (one) member but not more than 2 (two) members of the Owner, 2 (two) members of the beneficiary group and not more than 2 (two) other persons )e.g. experts or members of relevant bodies or authorities such as the Department of Agriculture) agreed to by the owner and the beneficiary group members. The Management body must formulate a Land Use Management Plan (hereinafter referred to as the PLAN) which will set out conditions of use and how these shall be monitored and enforced.

4. The owner acknowledges that failure on its part to ensure the use of the property as a commonage in terms of the plan and to administer it as such, will entitle the Premier to demand that the property be transferred to the Province in order to enable the Province to enforce the conditions in favour of the beneficiary.

5. The Premier must only exercise the prerogative to demand that the property vests in the Province by way of transfer from the owner to the Province on the basis of satisfactory evidence that the owner failed in its duty to ensure the use of and to administer the property as a commonage for the benefit of the beneficiary group in terms of the plan and/or this Deed.

6. Should the owner dispute that it failed in its duty to ensure the use of and to administer the property as a commonage as contemplated herein the parties to the dispute must in the first instance endeavour to resolve the dispute by negotiation. This entails that any party invites the other(s) in writing to meet and to attempt to resolve the dispute within 7 (seven) days from the date of receipt of the written invitation. If the dispute has not been resolved bu such negotiation, the parties must submit the dispute to mediation to be conducted on such terms as may be mutually agreed on by the parties and failing such agreement, to be administered by the Arbitration Foundation of South Africa (AFSA), upon the terms set by the AFSA National Mediation Panel Secretariat, or its successors in title.

7. Failing such a resolution, the dispute, if arbitrable by law, must be finally resolved in accordance with the Rules of AFSA by an arbitrator(s) appointed by AFSA and approved by the parties. The determination of the arbitrator(s) shall be final and binding on the parties and may be made an order of any court of competent jurisdiction.

8. No compensation is payable for the granting of this servitude.

9. The costs of and incidental to the preparation and registration of this notarial deed must be paid by the owner.

THUS DONE AND EXECUTED at .............................................................. on the day, month and year first aforewritten in the presence of the undersigned witnesses.

AS WITNESSES:1. ...................................... FOR THE MUNICIPALITY2. ......................................

AS WITNESSES:1. ...................................... FOR THE PREMIER2. ...................................... QUOD ATTESTOR

___________________ NOTARY

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THE SOUTH AFRICAN NATIONAL ROADS AGENCY LIMITED AND NATIONAL ROADS ACT, 1998 (ACT NO 7 OF 1998)

1. PURPOSE OF THIS CIRCULAR

Certain registration issues relating to the endorsement of deeds and the payment of office fees in terms of the provisions of The South African National Roads Agency Limited and National Roads Act, 1998 (Act No 7 of 1998) (herein after referred to as the Act) have not been addressed in Circular No 1 of 1999. The said issues are explained in this Circular which replaces Circular No 1 of 1999.


The Act came into operation on 1 April 1998 (section 63(1) of the Act).


The purpose of the Act is, inter alia, to establish a juristic person to be known as the South African National Roads Agency Limited, herein after referred to as the Agency (section 2(1) of the Act). The said juristic person will be established upon incorporation as a company in accordance with the provisions of section 3 (section 2(2) of the Act).

4. IMPACT OF ACT ON THE REGISTRATION PROCEDURES

4.1 Description of Agency in deeds and documents:

The Agency shall, in deeds and documents, be described as

“TheSouthAfricanNationalRoadsAgencyLimitedRegistrationNumber1998/009584/06”.

4.2 Passing to and vesting, in the Agency of assets:

4.2.1 On the date of the incorporation of the Agency, in terms of section 7(2) of the Act, the following immovable property passed to and vested in the Agency:

(a) The immovable property of the South African Roads Board consisting of land and any servitudes on or over the land on which national roads are situated;

(b) land and any servitudes on or real rights with regard to land (including any right to use land temporarily), acquired by the South African Roads Board or the State in terms of the National Roads Act, 1971 (Act No 54 of 1971)(herein after referred to as the previous Act) for the purpose of or in connection with the national roads;

(c) any other immovable property of the South African Roads Board acquired in terms of the previous Act;

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(d) any State land on which a national road is situated, or any servitude or other real right with regard to land held by the State for the purposes of or in connection with a national road situated on the latter land. For the purposes of the Act land includes a real right in or over any land (section 1(x) of the Act). Registration of land which vests in the Agency in terms of section 7(2) shall, in terms of section 7(5) of the Act, be by means of a deed of transfer in terms of section 31 of the Deeds Registries Act, 1937 (Act No 47 of 1937) whilst servitudes so vested will be registered by means of a deed of cession in terms of section 32 of Act 47 of 1937.

4.2.2 The Minister of Transport may, by Notice in the Gazette, declare that immovable property belonging to the State, except any immovable property mentioned in sub- paragraphs 4.2.1 (b) and (d), which is specified in the notice, will pass and vest in the Agency on a date specified in the notice (section 7(4)(a) of the Act). The Registrar of Deeds shall, upon being furnished with the notice, make the necessary entries in his or her registries and effect the necessary endorsements on the relevant title deeds (section 7(6) of the Act).

Notwithstanding the provisions of section 7(6), the notice must be accompanied by the relevant title deeds, since endorsing office copies would be more onerous, and an application which must be endorsed with a T-code. An endorsement along the following lines must be effected on the relevant title deeds:

“Endorsement in terms of section 7(6) of Act No 7 of 1998 The within mentioned property vests, in terms of section 7(4)(a) of Act No 7 of 1998, in the SouthAfricanNational RoadsAgency LimitedRegistrationNumber 1998/009584/06asfrom............ Notice filed with T ________________________ _______________________ Date Registrar of Deeds” . Where, however, not all the land held under the title vests in the Agency, in order to prevent the holding of different properties by different persons under one title deed, the above procedure cannot be applied. In such an instance the vesting must be registered in terms of section 31 or 32 of Act 47 of 1937.

4.3 Declaration of National Roads

The Minister of Transport may, by notice in the Government Gazette, declare any road to be a national road and amend or withdraw any declaration so made (section 40(1) of the Act).

The Registrar of Deeds shall, upon being requested by the Agency, endorse the fact of such declaration, amendment or withdrawal on the title deed/s of the land effected (section 40(4) of the Act).

The said application must be filed under a BC-code and the relevant title deed/s must be endorsed along the following lines:

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“Endorsement in terms of section 40(4) of Act No 7 of 1998 TheMinisterofTransporthas,*intermsofsection40(1)(a)declaredtheroad............................... to be a national road / in terms of section 40(1)(b) amended / withdrawn the declaration of the road ..................... as a national road. Application filed with BC ...............................................

________________________ _______________________ Date Registrar of Deeds” .

* Omit whichever is not applicable.

4.4 Prohibition of construction of structures on National Roads

No person may, without the Agency’s written permission or contrary to that permission, construct or establish any structure on, over or below the surface of a national road, or construct any structure on land in a building restriction area, or make structural alterations to a structure referred to above, or give permission for the performance of the acts referred to above (section 48(1) of the Act).

When given the permission referred to above, the Agency may prescribe obligations to be fulfilled by the owner of the land in question (section 48(3)(a)(iii) of the Act).

Where the Agency imposes conditions prescribing the removal of a structure or other thing from the land in question, the Registrar of Deeds shall, upon being requested by the Agency, note the obligation, as a condition, on the title deed/s of the land effected (section 48(4)(a)).

The application referred to above must be filed under a BC-code and the relevant title deed must be endorsed along the following lines:

“Endorsement in terms of section 48(4)(a) of Act No 7 of 1998 TheSouthAfricanNationalRoadsAgencyLimitedRegistrationNumber1998/009584/06 has in terms of section 48(3)(a)(iii) imposed the condition that the registered owner of the within mentioned property must ............

Application filed with BC ...........................................


The above mentioned noting shall be cancelled in accordance with the procedure outlined in paragraph 4.5 below.

4.5 Subdivision and consolidation of certain land

Land in a building restriction area may only be subdivided with the approval of the Agency (section 49(1) of the Act). A document evidencing such approval need not be lodged as it shall be lodged with the Surveyor-General.

The Agency may grant permission to subdivide subject to conditions (section 49(3)).

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Where land, on which conditions imposed in terms of section 49(3) apply, is transferred, then such conditions must be inserted in such deed of transfer (section 49(5)(a)(i)).

Where conditions referred to in section 49(3) apply to the remainder on subdivision, the Registrar of Deeds must endorse such conditions on the title deed of the remainder (section 49(5)(a)(ii)).

Where land, to which conditions in terms of section 49(3) apply, is consolidated with other land, the Agency may stipulate that such conditions shall apply to the land so consolidated and a certificate of such consolidation must contain such conditions (section 49(3)(b) read with section 49(5)(a)(iii)).

The Registrar of Deeds may, upon the written application by the owner, accompanied by the Agency’s consent, cancel conditions imposed in terms of section 48(3) or 49(3) (section 49(6) (a) and (b)).

Proof that mortgagees have been notified about a proposed application for the cancellation must be lodged (section 49(6)(b)).

The application referred to above must be filed under a BC-code.

It must be noted that section 49(5) does not make provision for the insertion of conditions in certificates of registered title and therefore such conditions shall be created by means of notarial deeds in those instances.


No transfer duty, stamp duty or office fees shall be payable in respect of acquisition by the Agency of land, or real rights in land or immovable property (section 55).

Examiners must note that an endorsement in terms of section 40(4) of the Act (see paragraph 4.3 above) is merely a factual endorsement. No transfer of ownership of immovable property or real rights in immovable property is effected in terms of section 40(4) and therefore office fees are payable in this respect.

The cancellation of conditions imposed in terms of section 49(3) is exempt from office fees (section 49(6)(c)), but the cancellation of conditions imposed in terms of section 48(3) is not (section 48(4)(a)).


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TELECOMMUNICATIONS ACT, 1996 (ACT NO 103 OF 1996) AS AMENDED BY THE TELECOMMUNICATIONS AMENDMENT ACT, 2001 (ACT NO 64 OF 2001)


The Telecommunications Act, 1996 (Act No 103 of 1996), herein after referred to as the Act, came into operation on 15 November 1996.


The purpose of the Act is, amongst others, to provide for the regulation of telecommunication activities other than broadcasting, and to provide for matters connected therewith.

3. NATURE AND IMPACT OF AMENDMENTS EFFECTED BY ACT NO 64 OF 2001 ON THE REGISTRATION PROCEDURES

3.1 Section 6 of Act No 64 of 2001 provides for the insertion of section 32A, 32B and 32C in the Act.

3.1.1 For the purposes of section 32B(5)(a) the word “servitude” means any servitude, lease, right or use or other real right (whether registered or not) in or over land in favour of Eskom (as referred to in section 2(1) of the Eskom Act No 40 of 1987), Transnet Limited (a company contemplated in section 2(1) of the Legal Succession to the African Transport Services Act No 9 of 1989) and the South African Rail Commuter Corporation Limited established in terms of Act No 9 of 1989, which existed immediately prior to the commencement of Act No 64 of 2001, for the conveyance or provision of electricity, telecommunications, pipelines, railways, transport or electrical substations (section 32B(a) of Act No 64 of 2001).

3.1.2 In terms of section 32B(5)(b) of the Act, every servitude, as referred to in section 32B(5)(a), shall be extended to include the additional right to use the land to which such servitude relates, for purposes of providing a public switched telecommunication service or network by means of telecommunication facilities.

3.1.3 Eskom may, in terms of section 32B(5)(c) of the Act, allow any of its subsidiaries, in respect of Eskom servitudes, to -

(a) utilise a servitude in respect of the additional right referred to in section 32B(5)(b) on such terms and conditions as may be agreed upon between Eskom and the subsidiary; (b) allow any third party in which Eskom has an equity interest to utilise the servitude in respect of that additional right on such terms and conditions as may be agreed upon between the parties; or

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(c) utilise a servitude in respect of that additional right in order to provide public switched telecommunication services to any third party on such terms and conditions as may be agreed upon between the parties.

The abovementioned provision applies with the necessary changes to Transnet and its subsidiaries licensed in terms of the Act, and the South African Rail Commuter Corporation Limited.

3.2 Endorsement of Title Deeds

3.2.1 In terms of section 32B(5)(g) the Registrar of Deeds must effect the necessary entries or endorsements in or on any relevant title deed or other document in his/her registry, as may be necessary for the purposes of section 32B(5)(c) of the Act.

3.2.2 Due to the extensive manner of examination of the documentation that need to be lodged in order to effect registration in terms of section 32B(5)(g) of the Act, this office held a meeting with the Department of Telecommunications to discuss alternative methods of registration. The Department of Telecommunications was informed of the burden laid upon the Registrar of Deeds in terms of section 32B(5)(g), in other words, the examination of an application for the endorsement of the title deed, the relevant agreement (as referred to in section 32B(5)(c)), proof of the payment of compensation to the owner of the land (as referred to in section 32B(5)(d)), as well as a notice of the exercise or use of the right in terms of section 32B(5)(c). The above mentioned documentation must refer to the provisions of the Expropriation Act, 1975 (Act No 63 of 1975), the Eskom Act, 1987, or the Legal Succession to the African Transport services Act, 1989, where applicable, and must be examined. Powers of attorney must also be registered by the Registrar of Deeds in order to identify the persons that are authorised to act on behalf of the relevant parties (i.e. Eskom, Transnet, and/or the South African Rail Commuter Corporation Limited).

In view of the above, this office and the Department of Tele- communications agreed upon the registration of a notarial deed of amendment of servitude in order to reflect the extension of the rights referred to in section 32B(5)(c) of the Act. This procedure results in the shifting of the responsibility, to the notary public, for the facts contained in a notarial deed of amendment of servitude. The abovementioned procedure is also in line with the existing practice that relates to the amendment of a registered notarial deed of servitude by the registration of another notarial deed of (amendment of) servitude.

The following procedures, as agreed upon with the Department of Telecommunications, must be followed in all deeds registries:

3.2.2.1 The Registrar of Deeds must register a notarial deed of amendment of servitude in order to effect the extension of rights to which a notarial deed of servitude has already been registered. The notarial deed of amendment of servitude must be entered into by the owner of the land and the party concerned (i.e. Eskom, Transnet and/or the South African Rail Commuter

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Corporation Limited). The notarial deed of amendment of servitude, bond/s and the bondholder’s consent (if applicable). The deed examiner must endorse the existing notarial deed of servitude and bond/s (if applicable) to reflect the extension of the rights as referred to in section 32B(5)(b) of the Act.

3.2.2.2 The Registrar of Deeds must register a notarial deed of servitude in instances where the right to use the land has not been registered. The notarial deed of servitude must be entered into by the owner of the land and the party concerned (i.e. Eskom, Transnet and/or the South African Rail Commuter Corporation Limited). The notarial deed of servitude must be accompanied by the title deed of the land, bond/s and the bondholder’s consent (if applicable). The deed examiner must endorse the title deed and bond/s (if applicable) to reflect the existence of the servitude.

4. OFFICE FEES

4.1 An office fee is payable with the registration of a notarial deed of amendment of servitude and notarial deed of servitude, as referred to in paragraph 3.2.2.1 and 3.2.2.2 above.

4.2 Transfer duty is payable with the registration of a notarial deed of servitude, as referred to in paragraph 3.2.2.2 above.


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CONSENTS IN TERMS OF ACT 70 OF 1970

1. The introduction of municipalities covering the entire Country has made it impossible to identify land that is agricultural land as defined in section 1 of Act 70 of 1970.

2. The definition of agricultural land in section 1 of Act 70 of 1970 has been amended by Proclamation R 100 of 1995. The effect of such amendment is that all land which was agricultural land prior the establishment of transitional councils remains classified as such.

3. The Department of Agriculture has raised concerns that certain subdivisions of agricultural land have been registered only on the basis of consents granted by local authorities and without the requisite consent of the Minister of Agriculture in terms of Act 70 of 1970. The Department of Agriculture is of the view that this practice can have serious economic implications, especially when prime agricultural land is involved.

4. In view of the concerns of the Department of Agriculture and the State Law Advisors’ opinions 553/2000 and 408/2001 dated 21 December 2000 and 25 October 2001 respectively, all farm property must, in future, until proof to the contrary has been furnished, be regarded as agricultural land as defined in Act 70 of 1970.

5. The following documents must be lodged with all deeds in which subdivision of farm land is being given effect to:

5.1 A consent by the Minister of Agriculture in terms of Act 70 of 1970; or

5.2 A letter by the Department of Agriculture to the effect that the land in question is not agricultural land as defined in Act 70 of 1970 and a consent by the local authority in whose area of jurisdiction the land is situated, as required by the relevant Provincial legislation, if any.

6. With regard to transactions having the effect of increasing the number of registered owners of farm land in undivided shares, the consent of the Minister of Agriculture must be lodged or a letter referred to in paragraph 5.2 must be lodged. No consent by the local authority is necessary in this instance.


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SOUTH AFRICAN SCHOOLS ACT NO 84 OF 1996

1. BACKGROUND

The above mentioned Act (“the Act”) came into operation on 1 January 1997. In order to assist the Deeds Offices with regard to the deeds registration aspects of the Act, Chief Registrar’s Circular No 29 of 1998 was issued on 13 November 1998. It is common cause that, in the past, land vesting in the State was registered in the name of the Republic of South Africa. The endorsement in paragraph 5 of the above mentioned circular refers to “the Republic of South Africa”. The Department of Education has indicated that “education” is listed in schedule 6 of the Constitution of the Republic of South Africa Act, 1996 (Act No 108 of 1996) and therefore a matter of Provincial competence. In view of the above, the Department of Education has indicated that schools can only vest in the name of a Provincial Government and not in the name of the National Government. It has, also, indicated that reference to “the Republic of South Africa” in the endorsement above is incorrect and that this matter should be rectified.

2. PURPOSE OF THE CIRCULAR

The purpose of this circular is to amend Chief Registrar’s Circular No 29 of 1998 in order to address the Department of Education’s observations and to spell out a procedure that has to be followed in rectifying the position with regard to the deeds that have already been endorsed in terms of section 55(11) of the Act.

3. AMENDMENT OF CHIEF REGISTRAR’S CIRCULAR NO 29 OF 1998

Chief Registrar’s Circular No 29 of 1998 is hereby amended by the substitution for the endorsement contained in paragraph 5.1 thereof of the following endorsement:

“Endorsement in terms of section 55(11) of the South African Schools Act No 84 of 1996, as amended The within mentioned property vests in terms of section 55(1) of the above Act, in the Government of the ........................................ Province.

Application filed with T............................


4. RECTIFICATION OF DEEDS ALREADY ENDORSED IN TERMS OF SECTION 55(11) OF THE ACT

Deeds that have already been endorsed in terms of section 55(11) of the Act must be rectified, free of any office fees, by means of the endorsement mentioned below, in terms of section 3(1)(v) of the Deeds Registries Act, 1937 (Act No 47 of 1937).

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“Endorsement in terms of section 3(1)(v) of the Deeds Registries Act 47 of 1937 The within mentioned property vests, in terms of section 55(1) of the South African Schools Act No 84 of 1996, in the Government of the ....................... Province.

Application filed with BC....................................


5. APPLICATION OF THIS CIRCULAR

This circular must be read in conjunction with Chief Registrar’s Circular No 29 of 1998.


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ESKOM CONVERSION ACT, 2001 (ACT NO 13 OF 2002)


The Eskom Conversion Act, 2001 (Act No 13 of 2001), herein after referred to as the Act, came into operation on 1 July 2002 (see notice number 56 of 2002 in Government Gazette number 23561, dated 28 June 2002). Section 8 of the Act, however, must be regarded as having come into operation on 1 January 2000, (section 12(2) of the Act).


The purpose of the Act is to provide for the conversion of Eskom into a public company having a share capital incorporated in terms of the Companies Act, 1973 (Act No 61 of 1973); and to provide for matters connected therewith (preamble of the Act).

3. CONVERSION INTO PUBLIC COMPANY AND CHANGE OF NAME

The Minister of Public Enterprises has, in accordance with section 3(1) of the Act, determined 1 July 2002 as the date upon which Eskom is deemed to be a public company to be known as “Eskom Holdings Limited, registration number 2002/015527/06.”

In terms of section 4(3)(b) of the Act, this conversion shall no6t affect any rights, liabilities or obligations acquired or incurred by Eskom, or on Eskom’s behalf, at any time before its conversion.


4.1 Powers and duties of Eskom

In terms of section 5(c) of the Act, Eskom may cede any servitude or other similar right in terms of which Eskom may effect improvements on or over the land concerned to its subsidiary companies. This cession shall be by means of a notarial deed of cession and shall be registrable without the co-operation of the registered owner of the land concerned.

In terms of section 5(c)(i) of the Act, the Registrar of Deeds must effect such endorsements on the title deed/s and such entries in his/her registers as are necessary in order to give effect to the above mentioned cession.

4.2 Transitional Provisions

In terms of section 11(2) of the Act, any reference to the name Eskom in deeds and documents must, with effect from the date of the conversion, be regarded as a reference to Eskom Holdings Limited.

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In terms of section 11(3) of the Act, the Registrar of Deeds must effect such endorsements on the title deed/s and such entries in his/her registers as are necessary in order to register the conversion and change of name. In giving effect to the said provision the Registrar of Deeds must endorse the deeds whenever lodged in the deeds registry for whatever reason. Powers of attorney, consents and applications signed, and deeds to be registered on or after the date of the conversion must reflect the new situation, whilst those signed and registered prior to this date must be accepted unaltered.

Rubber stamps, for the purposes of the endorsing of the title deeds, will be issued to all offices. The endorsement will be on the following lines:

Examiners should take note that no act of registration shall be permissible unless and until the relevant title deed/s is/are endorsed regarding the conversion and change of name.

5. OFFICE FEES

It is clear from section 5(c)(ii) of the Act that the intention is to exempt the registration of cessions from the payment of fees or other levies. Office fees are also not payable in respect of an entry or endorsement referred to in paragraph 4.2 (section 11(4) of the Act).


ENDORSSEMENT IN TERME VAN ARTIKEL 11(3) VAN DIE WET OP DIE OMSKEPPING VAN ESKOM, 2001 (WET NO 13 VAN 2001)

ENDORSEMENT BY VIRTUE OF SECTION 11(3) OF THE ESKOM CONVERSION ACT, 2001 (ACT NO 13 OF 2001)

DIE BINNEGEMELDE

TRANSPORTNEMER/ VERBANDHOUER/SESSIONARIS

IS MET DIE INGANG VAN 1 JULIE 2002

OMSKEP IN ‘N PUBLIEKE MAATSKAPPY WAT BEKEND STAAN AS ESKOM BEHEREND BEPERK NO 2002/015527/06

THE WITHIN MENTIONED

TRANSFEREE/ MORTGAGEE/CESSIONARY

HAS WITH EFFECT FROM 1 JULY 2002

BEEN CONVERTED INTO A PUBLIC COMPANY KNOWN AS ESKOM HOLDINGS LIMITED NR 2002/015527/06

DATUMDATE

REGISTRATEUR/ REGISTRAR

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DISESTABLISHMENT OF SOUTH AFRICAN HOUSING TRUST LIMITED ACT, 2002 (ACT NO 26 OF 2002)


The Disestablishment of South African Housing Trust Limited Act, 2002 (Act No 26 of 2002), herein after referred to as the Act, came into operation on 5 December 2002 (see notice number 1528 in Government Gazette number 24146, dated 5 December 2002).


The purpose of the Act is to disestablish the South African Housing Trust Limited (the “Company”); to transfer the rights and assets of the Company to the National Housing Finance Corporation; to vest the obligations and liabilities of the Company in the Government of the Republic of South Africa; and to provide for matters in connection therewith (preamble of the Act).

3. IMPACT OF THE ACT ON THE REGISTRATION PROCESS

3.1 Disestablishment of Company and consequences of disestablishment

3.1.1 In terms of section 2(1) of the Act the Company ceases to exist as a company in terms of the Companies act, 1973 (Act No 61 of 1973), with effect from 1 September 2002.

3.1.2 As from the date of the disestablishment-

3.1.2.1 all rights and assets of the Company vest in the National Housing Finance Corporation referred to in section 3(6)(b) of the Housing Act, 1997 (Act No 107 of 1997) (section 3(a) of the Act);

3.1.2.2 all obligations and liabilities of the Company vest in the Government of the Republic of South Africa (section 3(b) of the Act).

3.1.3 The Act is silent on the updating of the deeds office records and the endorsing of title deeds in order to reflect the vesting as referred to in section 3 of the Act. The endorsing of title deeds must, however, only be given effect to when the relevant title deed/s is/are lodged together with an application for endorsement in terms of section 3(1)(v) of the Act No 47 of 1937.

3.1.4 The relevant deed/s must be endorsed along the following lines:

“Endorsement in terms of section 3(1)(v) of Act No 47 of 1937 The within-mentioned right/asset/obligation/liability* has, with effect from 1 September 2002, vested, in terms of section 3(a)/3(b)* of Act No

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26 of 2002, in the National Housing Finance Corporation referred to in section 3(6)(b) of Act No 107 of 1997 / Government of the Republic of South Africa*.

Application filed with T/K/BC* ________________________ _______________________ Date Registrar of Deeds” .

* Omit whatever is not applicable

3.1.5 Examiners should take note that no act of registration shall be permissible unless and until the relevant title deed/s is/are endorsed regarding the vesting referred to in paragraph 3.1.2.

4. OFFICE FEES

Office fees are payable in respect of a registration referred to in paragraph 3.1.3 above.


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BLACK ADMINISTRATION ACT, 1927 (ACT NO 38 OF 1927)

1. AMENDMENT OF REGULATIONS

Government Notice No R 1501, dated 3 December 2002, provide for the amendment of the Regulations promulgated by Government Notice No R200, dated 6 February 1987, of the Black Administration Act, 1927 (Act No 38 of 1927), herein after referred to as “the Regulations” (see Government Gazette Number 24120 dated 3 December 2002 in this regard).

2. IMPACT OF THE AMENDMENT OF REGULATIONS 3 AND 4 ON THE REGISTRATION PROCESS:

2.1 Amendment of Regulation 3:

2.1.1 Regulation 3 of the Regulations is amended by the substitution for sub-regulation (1) of the following sub-regulation:

“All the property in any estate falling within the purview of regulation 2(e) shall be administered in terms of the principles of customary law and the provisions of these regulations, and all other property shall be administered under the jurisdiction of the Master of the High Court in terms of the provisions of the Administration of Estates Act, 1965 (Act No 66 of 1965).”

2.1.2 The effect of the amendment of Regulation 3 is that the magistrate shall no longer give transfer of immovable property in estates referred to in sub-regulations (b), (c) and (d) of Regulation 2. Transfer of immovable property in the abovementioned estates shall be given by the Master of the High Court, who shall administer such estates in terms of the provisions of the Administration of Estates Act, 1965 (Act No 66 of 1965).


2.2.1 Regulation 4 of the Regulations is amended by the substitution in sub-regulation (1) for the expression “regulation 2”, of the expression “regulation 2(e)”.

2.2.2 The effect of the amendment of Regulation 4 is that the provisions of Regulation 4(1) are made applicable only to estates referred to in Regulation 2(e). The administration of Regulation 2(e) estates remain under the jurisdiction of the magistrate and deeds registries must, therefore, continue to call for a Regulation 4(2) certificate with the transfer of immovable property in this regard.

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3. COMMENCEMENT

3.1 The amendment of the Regulations came into operation on 5 December 2002 (see paragraph 7 of Government Notice No R 1501).

3.2 In order to allow for the registration of transfer of immovable property, in estates of which the administration have already been commenced with, Deeds registries must follow a similar procedure as that which has been followed with regard to the administration of estates in terms of section 23(11) of the Black Administration Act, 1927. This means that any estate referred to in Regulation 2, which has, prior to the coming into operation of the amendment to the Regulations, been reported to the magistrate, shall be administered as if Government Notice No R 1501 had not been passed. The provisions of Government Notice No R 1501 shall apply in respect of any estate, which has not been so reported.


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NEW PROCESSES IN OFFICE OF THE REGISTRAR OF COMPANIES AND CLOSE CORPORATIONS

1. New processes were implemented in the Office of the Registrar of Companies and Close Corporations whereby certain certificates, that have been registered in the said Office, can be verified on the web site of the Companies and Intellectual Property Registration Office (www.cipro.gov.za). Due to the abovementioned facility the Office of the Registrar of Companies and Close Corporations has discontinued the practice of issuing certified documentation that relate, amongst others, to the change of name and the conversion of companies and close corporations.

2. To accommodate the process of the verification of Cipro-certificates in the deeds registration system, deeds registries are to call for a conveyancer’s certificate upon the lodgement of a Cipro- certificate for registration purposes. A conveyancer’s certificate in the abovementioned regard must be along the following lines:

“Verification of Certificate of *........................ I, **................. hereby certify that the Certificate of *................. has been duly verified by myself on the Cipro-website †................ on ††................... DATE CONVEYANCER

* Insert nature of certificate

** Insert full name of conveyancer

† Insert address of website

†† Insert date of verification of certificate

3. Documentation relating to a change of name or a conversion of a company or close corporation, already issued by the Office of the Registrar of Companies and Close Corporation prior to the implementation of the process of the verification of Cipro-certificates, that is 1 August 2002, must be accepted for registration purposes and must not be rejected by the deeds registries


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LAND AND AGRICULTURAL DEVELOPMENT BANK ACT, 2002 (ACT NO 15 OF 2002)


The Land and Agricultural Development Bank Act, 2002 (Act No 15 of 2002), herein after referred to as the Act, came into operation on 10 June 2002 (see notice number 807 in Government Gazette number 23506, dated 28 June 2002).


The purpose of the Act is to provide for a juristic person known as the Land and Agricultural Development Bank of South Africa (herein after referred to as “the Bank”) and to provide for matters connected therewith.

3. CONTINUED EXISTENCE AND LEGAL PERSONALITY OF THE BANK

The Bank, established under section 3 of the Land Bank Act, 1912 (Act No 18 of 1912) and which continued to exist in terms of section 3 of Act No 13 of 1944, continues to exist under the name of the Land and Agricultural Development Bank of South Africa (section 2(1) of the Act).

4. IMPACT OF CERTAIN PROVISIONS OF THE ACT ON REGISTRATION PROCEDURES

4.1 Substitution of debtor in respect of a bond

4.1.1 In terms of section 29 of the Act any person who acquires the whole of any land which is hypothecated to the Bank under a registered mortgage bond may, with the consent of the Bank, take over all the obligations of the debtor under that bond and be substituted as debtor in respect of that bond.

4.1.2 The provisions of section 57 of the Deeds Registries Act No 47 of 1937 shall apply with regard to the registration of a substitution as provided for in section 29 of the Act.

4.2 Charge loans

4.2.1 Section 31(1) of the Act provides for the advancing of charge loans (also referred to as “advances”) by the Bank.

4.2.2 It must be noted that the Act makes provision for the advancing of charge loans in respect of land, and not immovable property as defined in Section 102 of Act No 47 of 1937.

4.2.3 In order to effect the noting of an advance against a title deed of property, the Registrar of Deeds must be provided with a document that includes the information as set out in section 31(2) of the Act. This information includes the following:

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(a) the date and amount of the advance made in terms of section 31(1) and, if the advance is made in respect of more than one property, the amount which each owner is liable to pay;

(b) the person to whom the advance has been made; and

(c) the property description in respect of which the advance is made.

4.2.4 Although it is recognised that a charge is analogous to a servitude, since it attaches to land and the debt it secures becomes the responsibility of the successors in title to the owner who incurred it, it is for practical and statistical purposes necessary that a charge be noted against the title deed of property.

4.2.5 Even though section 31(2) is silent with regard to the lodgement of the title deed of the property concerned, an endorsement in terms of this section shall not be effected unless the document, referred to in this section, is accompanied by the title deed of the property.

4.2.6 The document referred to section 31(2) must be endorsed with a Fee/Stamp Duty endorsement as well as a B.....CH code. The title deed of the property must be endorsed with the endorsement currently used in the deeds registries for the purposes of noting charges. This endorsement must be altered to reflect a B.....CH code. The endorsement must read as follows:

* Insert the B......CH code † P.R. Books are no longer in use and reference thereto must be deleted

4.2.7 An endorsement in the abovementioned regard serves as proof of the noting of the charge on the title deed of the property concerned, and the Bank has agreed that the Registrar of Deeds shall not be obliged to transmit to it a certified copy confirming the noting of the charge on the title deed as required by section 31(2) of the Act.

4.2.8 In terms of section 31(4) of the Act the Registrar of Deeds must note the cancellation of the charge on receipt of the written consent from the Bank that the amount of charge, together with interest and costs, have been paid. The consent by the Bank must follow Form MM to the Regulations of Act No 47 of 1937 and must be endorsed with a Fee/Stamp Duty endorsement as well as a BC......CH code. The charge, endorsed upon the title deed of the property, must be endorsed with a small cancellation endorsement. The code of this endorsement must be altered to read BC......CH. The charge must be

ONDERWORPE AAN LAS NR.SUBJECT TO CHARGE NO *B...........CH VIR DIE BEDRAG VANFOR THE AMOUNT OF R................. + P.R. BOEK † P.R. BOOK.................. FOLIO ................ PRETORIA _________________ DATE: REGISTRAR OF DEEDS

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lodged and endorsed with a big cancellation endorsement. The code of this endorsement must also be altered to reflect a BC......CH Code.

4.2.9 Although section 31(4) is silent with regard to the lodgement of the title deed of the property, a cancellation in terms of this section shall not be effected unless the consent received is accompanied by the title deed of the property.

4.2.10 It must be noted that a further mortgage bond may be registered in respect of a property to which an advance has been made. A further mortgage bond must, in its raking clause, be made subject to the advance.

4.3 Registration of a deed of transfer and a deed of partition transfer in terms of section 31(6) of the act

4.3.1 In terms of section 31(6) of the Act the Registrar of Deeds may not register the transfer of a property or a deed of partition transfer in respect of property subject to a charge, unless the Registrar of Deeds has been furnished with a certificate by the Bank that indicates:

(a) that all instalments and interest up to then due to the Bank in respect of the advance have been paid (section 31(6)(a)); or

(b) the amount still owing in respect of the advance and, if the property is being partitioned or any portion thereof is being transferred, the amount of the advance still owing which attaches to each separate portion of the property so transferred (section 31(6)(b)).

4.3.2 In terms of section 37(7) of the Act the Registrar of Deeds must note, upon the deed of transfer or deed of partition transfer, the amount of any liability that attaches in respect of the property concerned.

4.3.3 To effect the noting of charge on a deed of transfer or deed of partition transfer, the certificate referred to in section 31(6), must be lodged together with the charge and a consent by the Bank in the format of Form W to the Regulations of Act No 47 of 1937. The words “substituted” must be written across the charge endorsement that has been noted against the title deed of the property concerned. The charge must be endorsed with a section 57 endorsement. This endorsement reads as follows:

* Alter the wording of the endorsement to reflect the true situation

ENDOSSEMENT KRAGTENS ARTIKEL 57 VAN WET 47 VAN 1937

ENDORSEMENT BY VIRTUE OF SECTION 57 OF ACT 47 OF 1937

.............................................IS NOU DIE GEREGISTREERDE EIENAAR VAN DIE GROND HIERONDER *BELAS EN WORD HY/SY AS SKULDENAAR ONDER HIERDIE *LAS VERVANG. SIEN ONDERVERMELDE TRANSPORTAKTE EN TOESTEMMING

............................................IS NOW THE REGISTERED OWNER OF THE LAND *CHARGED HEREUNDER AND HE/SHE IS SUBSTITUTED AS DEBTOR UNDER THIS *CHARGE. SEE UNDER-MENTIONED DEED OF TRANSFER AND CONSENT.

T REGISTRATEUR VAN AKTES REGISTRAR OF DEEDSB CH

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4.3.4 The deed of transfer or deed of partition transfer must be endorsed with one of the endorsements shown below. These endorsements, currently used in the deeds registries, must be suitably altered to reflect the B....CH number that has been allocated to the charge, as well as the amount still owing in respect of the charge. The endorsement read as follows:

* Insert the applicable section

** Alter the wording of the endorsement to reflect Act No 15 of 2002

*** Alter the wording of the endorsement to reflect the true situation

† Insert the B.....CH code

†† Insert the relevant amount

OR

* Insert the applicable section

** Alter the wording of the endorsement to reflect Act No 15 of 2002

Artikel *31 (6)(b) **Wet 15 van 2002 Section Act 15 of 2002

Subject to *** Charge

Onderhewig aan Las †B /20 CH

Gedateer vir dated ........... for ††R.......................................

Deeds Registry Akteskantoor Registrar of Deeds/ Registrateur van Aktes

ARTIKEL *31(6)(b) ** WET 15 VAN 2002

SECTION ACT 15 OF 2002

SUBJECT TO *** CHARGE/ ONDERHEWIG AAN LAS†B.................................................CHVIR††FOR R...................

REGISTRATEUR/ REGISTRAR

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*** Alter the wording of the endorsement to reflect the true situation

† Insert the B.....CH code

†† Insert the relevant amount

4.3.5 Examiners must note that the practice, followed with regard to the endorsing of mortgage bonds on title deeds in cases where land has been subdivided or partitioned, must be followed with regard to the endorsing of charges on title deeds of land subdivided or partitioned.

4.3.6 Although the Act is silent with regard to the lodgement of the title deed of the property, the registration of a deed of transfer or deed of partition transfer shall not be effected unless the certificate, referred to in section 31(6), is accompanied by the title deed of the property.

4.4 Remedies in case of default

4.4.1 In terms of section 33(8) of the Act the Registrar of Deeds must, upon the production of a certified copy of the court order contemplated in section 33(4), effect the necessary entries and endorsements upon a title deed to reflect the transfer of the property. Notwithstanding the provision of section 33(8), the transfer of property must be given effect to only by means of the registration of a deed of transfer. The deed of transfer must follow Form E to the Regulations of Act No 47 of 1937 and reference must be made, in the causa, to the provisions of section 33(8).

4.4.2 Although the Act is silent in this regard, the Bank has agreed to notify the Registrar of Deeds of the attachment of properties in terms of section 33(4). Such notification shall be done simultaneously with the lodgement of the court order as provided for in section 33(8).

4.4.3 In view of what have been said in paragraphs 4.4.1 and 4.4.2 above, it is important to note that an attachment interdict noted against the property by the Bank, has the effect that the Sheriff or the Bank must transfer the said property. The attachment interdict, noted against a property is given by the Sheriff or the Bank. This will be the case even if sequestration orders are noted against the name of the owner of the property.

4.4.4 Mortgage bonds registered in favour of the Bank now fall within the ambit of the provisions of section 56 of Act No 47 of 1937 and do not have to be lodged for cancellation with the transfer of property in terms of section 33 of the Act. The position is the same in instances where the property is transferred by the trustee or liquidator in the event of the owner’s sequestration or liquidation. Although mortgage bonds registered in favour of the Bank doe not deed to be lodged for cancellation with the transfer of a property in terms of section 33 of the Act, the consent of the Bank to the transfer of a property, or an affidavit by the person giving

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transfer of such property, must be lodged (see paragraph 4.4.7). Examiners must note that the abovementioned does not apply to voluntarily liquidations in which case all mortgage bonds must be lodged unless a certificate to the effect that a company/close corporation can not pay its debts, has been lodged.

4.4.5 Where a property, subjected to a charge, is transferred by the sheriff, trustee or liquidator, the charge must, however, be lodged for disposal.

4.4.6 The sequestration or liquidation of a debtor’s estate does not limit the Bank’s right to deal with the property in terms of section 34 of the Act (section 33(10)). It must, however, be noted that the Registrar of Deeds cannot be held accountable in instances where the trustee or liquidator has transferred a property to which a notification of attachment, as referred to in paragraph 4.4.2 above, has not been received by the Registrar of Deeds.

4.4.7 A sheriff, the trustee of an insolvent estate, the assignee of an assigned estate, the executor of the estate of a deceased person or a liquidator or judicial manager of an insolvent company, close corporation or co-operative may not sell property mortgaged to the Bank to secure advances by the Bank, unless the Bank agrees in writing to that sale or has failed to sell that mortgaged property within three months after receipt of a written notice from that person requesting the Bank to sell that property (section 33(11)). This means that the Registrar of Deeds must only register the transfer of land, mortgaged in favour of the Bank, if the Bank’s consent to the sale of the land is lodged or where the seller lodges an affidavit to the effect that the Bank has failed to sell the property within three months after having been requested to do so.

5. PREPARATION AND EXECUTION OF DOCUMENTS

5.1 Any employee of the Bank who has been specially appointed by the Bank for that purpose may, in terms of section 41(1) of the Act, prepare and execute any deed of transfer, mortgage bond, notarial bond or document relating to any other security acquired or disposed of by the Bank within the course and scope of its business.

5.2 An employee, referred to in section 4(1) of the act, may, with respect to the preparation and execution of documentation, perform the function of a conveyancer or notary public even if he or she is not admitted as such.

6. TRANSITIONAL MATTERS

6.1 Anything validly done in terms of Act No 13 of 1944 continues to be valid and of full force and effect despite the repeal of that Act (section 52(1)). The regulations made in terms of Act no 13 of 1944 remain in full force until repealed in terms of the provisions of section 49 of the Act.

6.2 The Registrar of Deeds must, in terms of section 52(6) of the Act, make the necessary entries and endorsements upon deeds and documents to reflect the Bank’s continued existence under the name of the Land and Agricultural Development Bank of South Africa. No office fee shall be payable in respect of an endorsement in this regard (section 52(6)).

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6.3 In giving effect to the provisions of section 52(6), the Registrar of Deeds must endorse the deeds whenever lodged in a deeds registry for whatever reason. Bonds lodged for cancellation do not have to be endorsed in the abovementioned manner. Rubber stamps, for the purposes of the endorsing of the title deeds, will be issued to all deeds registries. The endorsement will be along the following lines:

Examiners should take note that no act of registration shall be permissible unless and until the relevant title deed/s is/are endorsed regarding the endorsement in terms of section 52(6) of the Act.

7. OFFICE FEES

7.1 In terms of section 41(1)(c) of the Act no stamp duty or transfer duty shall be payable in respect of any transfer of property to the Bank, and no charge or office fee shall be payable in respect of the cancellation of any such note (this includes the noting / cancellation of charges).

7.2 Section 41(1)(c) does not provide for an exemption from office fees and other duties in respect of the registration of the transfer of property by the Bank. The Act is also silent with regard to the payment of office fees and other duties in respect of the registration / cancellation of mortgage bonds registered in favour of the Bank. The abovementioned transactions shall, therefore, be subject to the payment of the office fees, and other duties where applicable.

7.3 The Bank is, in terms of section 41(1)(d), exempt from the payment of fees in respect of any search or inspection fee in any deeds registry.

Signed byACTING CHIEF REGISTRAR OF DEEDS

ENDOSSEMENT KRAGTENS ARTIKEL 52(5) VAN DIE WET OP DIE LAND-EN LANDBOU-ONTWIKKELINGSBANK WET, 2002 (WET NO 15 VAN 2002)

ENDORSEMENT BY VIRTUE OF SECTION 52(6) OF THE LAND AND AGRICULTURAL DEVELOPMENT BANK ACT, 2002 (ACT NO 15 OF 2002)

KRAGTENS ARTIKEL 2(1) VAN DIE LAND- EN LANDBOU-ONTWIKKELINGSBANK WET, 2002 (WET NO 15 VAN 2002) GAAN DIE BINNEGEMELDE TRANSPORTNEMER / VERBANDHOUER / SESSIONARIS VOORT OM TE BESTAAN ONDER DIE NAAM LAND- EN LANDBOU-ONTWIKKELINGS BANK VAN SUID AFRIKA

IN TERMS OF SECTION 2(1) OF THE LAND AND AGRICULTURAL DEVELOPMENT BANK ACT, 2002 (ACT NO 15 OF 2002) THE WITHINMENTIONED TRANSFEREE / MORTGAGEE / CESSIONARY CONTINUES TO EXIST UNDER THE NAME OF THE LAND AND AGRICULTURAL DEVELOPMENT BANK OF SOUTH AFRICA

BC 9/2003

DATUM DATE REGISTRATEUR VAN AKTES / REGISTRAR OF DEEDS

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COLLECTIVE INVESTMENT SCHEMES CONTROL ACT, 2002 (ACT NO 45 OF 2002)


The Collective Investment Schemes Control Act, 2002 (Act No 45 of 2002), herein after referred to as the Act, came into operation on 3 March 2003 (see notice number R 18, 2003 in Government Gazette Number 25007, dated 3 March 2003).

2. PURPOSE OF THE ACT’

The purpose of the Act is to regulate and control the establishment and administration of collective investment schemes; to amend or repeal certain laws; and to provide for incidental matters (preamble of the Act)


3.1 Amalgamation of business of collective investment schemes or portfolios and cession, transfer or take-over of rights of investors

3.1.1 The registrar of collective investment schemes may grant the business of two or more collective investment schemes or two or more registrar of collective investment schemes may also grant the rights of the investors in a portfolio to be ceded or transferred to or be taken over by any other portfolio or collective investment scheme (section 99(1)).

3.1.2 In terms of section 99(5) of the Act the Registrar of Deeds must, upon the production of the relevant title deed or other documentation in question, together with a certificate by the registrar of collective investment schemes stating that consent has been granted in terms of section 99(1)(b) of the Act and that the amalgamation, cession, transfer, or take-over has been properly carried out, effect such endorsements and entries on the relevant title deed or other document as are necessary to effect the transfer, amalgamation, cession, or take-over as contemplated in section 99(1) of the Act. Although the Act is silent in this regard the relevant title deed must further be accompanied by an application for an endorsement in terms of section 99(5) of the Act.


“Endorsement in terms of section 99(5) of Act No 45 of 2002: In terms of section 99(4)(b) of Act No 45 of 2002, the within-mentioned asset / liability* has, with effect from .............**, passed to and became vested in ....................**. Application filed with T/K/BC*


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* Omit whichever is inapplicable ** Insert applicable information

4. OFFICE FEES

4.1 No transfer or stamp duty is payable in respect of an endorsement referred to in paragraph 3.3 (section 99(7) of the Act).

Signed byACTING CHIEF REGISTRAR OF DEEDS

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BROADCASTING ACT, 1999 (ACT NO 4 OF 1999) AS AMENDED BY THE BROADCASTING AMENDMENT ACT, 2002 (ACT NO 64 OF 2002)

1. DATE OF COMMENCEMENT

The Broadcasting Act, 1999 (Act No 4 of 1999), herein after referred to as the Act, came into operation on 30 June 1999. The Act has been amended by the Independent Communications Authority of South Africa Act, 2002 (Act No 13 of 2000), which came into operation on 11 May 2000, as well as the Broadcasting Amendment Act, 2002 (Act No 64 of 2002). Act No 64 of 2002 came into operation on 7 March 2003 (see Proclamation number R 20, 2003 in Government Gazette number 25021 dated 7 March 2003).


The purpose of the Act, as amended by Act No 64 of 2002, is, amongst others, to provide for the conversion of the South African Broadcasting Corporation into a public company in terms of the provisions of the Companies Act, 1973 (Act No 61 of 1973), to provide for the continued existence of the South African Broadcasting Corporation during the transitional period, and to provide for matters connected therewith.

3. IMPACT OF CERTAIN PROVISIONS OF THE ACT ON THE REGISTRATION PROCEDURES

3.1 CONVERSION INTO PUBLIC COMPANY

3.1.1 The South African Broadcasting Corporation, established in terms of the Broadcasting Act, 1976 (Act No 73 of 1976), shall with effect from a date to be determined by the Minister of Communications by notice in the Gazette, deemed to be a public company incorporated in terms of Act No 61 of 1973. The public company shall, upon the date of the conversion, be known as the South African Broadcasting Corporation Limited, herein after referred to as the Corporation (section 8A(1) of the Act, inserted by section 9 of Act No 64 of 2002).

3.1.2 The repeal of Act No 73 of 1976, by section 41 of the Act, as well as the conversion of the Corporation shall not affect any rights, assets, liabilities or obligations acquired or incurred by or on behalf of the South African Broadcasting Corporation, at any time before its conversion (section 8A(8)(b) of the Act).

3.2 ENDORSEMENT OF TITLE DEEDS

3.2.1 Any reference to the South African Broadcasting Corporation in deeds and documents must, with effect from the date of the conversion, be regarded as a reference to the Corporation (section 8A(9)(b)(i) of the Act).

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3.2.2 In terms of section 8A(9)(b)(ii) of the Act the Registrar of Deeds must effect such entries or endorsements on the title deed/s and in his/her registers as are necessary to reflect the conversion of the Corporation. The endorsing of title deeds in the abovementioned regard must, however, only be given effect to when the relevant title deed/s is/are lodged together with an application for an endorsement in terms of section 8A(9)(b)(ii) of the Act.


“Endorsement in terms of section 8A(9)(b)(ii) of Act No 4 of 1999 The within-mentioned transferee / cessionary / mortgagee* corporation has, with effect from ...................**, been converted into a public company in terms of the Companies Act, 1973 (Act No 61 of 1973), and is now known as the South African Broadcasting Corporation Limited, Registration Number ..................***.

Application filed with T/K.BC*


* Omit whichever is inapplicable ** Insert date of conversion *** Insert registration number of company

3.2.4 Examiners should take note that no act of registration shall be permissible unless and until the relevant title deed/s is/are endorsed regarding the conversion mentioned in paragraph 3.2.2.

4. OFFICE FEES

No office fee or other levies are payable in respect of an entry or endorsement referred to in paragraph 3.2.2 (section 8A(9)(b)(iii) of the Act).


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LODGEMENT OF RATES CLEARANCE CERTIFICATES IN TERMS OF THE AMENDED LOCAL GOVERNMENT: MUNICIPAL SYSTEMS ACT, 2000 (ACT NO 32 OF 2000)


The Local Government: Municipal Systems Act, 2000 (Act No 32 of 2000), herein after referred to as the Act, has been amended by the Local Government Laws Amendment Act, 2002 (Act No 51 of 2002), with effect from 5 December 2002 (see Government Gazette No 24149 dated 5 December 2002 in this regard.)

2. IMPACT OF AMENDMENTS EFFECTED BY ACT 51 OF 2002 ON THE REGISTRATION PROCEDURES

2.1 Definition of property

2.1.1 Section 35 of Act No 51 of 2002 provides for the amendment of section 1 of the Act by the insertion of the definition of property. In terms of section 1 property means-

“(a) immovable property registered in the name of a person, and includes a unit as defined in section 1 of the Sectional Titles Act, 1986 (Act No 95 of 1986); or

(b) a right registered against immovable property in the name of a person.”

2.1.2 The implication of the insertion of sectional title units in the definition of property, in applying section 118 of the Act, is to require the lodgement of a rates clearance certificate whenever transfer of a sectional title unit is to be registered.

2.1.3 The lodgement of rates clearance certificates with the transfer of sectional title units can, however, only be insisted upon with the promulgation of legislation that provides for the separate rating of sectional title units. In view of the provision of section 51(3) of the Sectional Titles Act, 1986 it would be anomalous to request the lodgement of rates clearance certificates whilst there is no legislation in place that empowers Local Authorities to separately rate sectional title units.

2.1.4 Pending the enactment of the Property Rates Bill, or until such time as otherwise informed by the Department of Provincial and Local Government, deeds registries are advised to continue with the practice of requiring section 15B(3) certificates with the transfer of sectional title units. 2.1.5 The Department of Provincial and Local Government has been informed with regard to the uncertainty that exists in the implementation of section 118 on the registration of a transfer of a registered right, as referred to in paragraph (b) of the definition of property. Due to the wide interpretation of a registered right, as referred to in the

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said paragraph, deeds registries are advised to maintain the status quo by calling for rates clearance certificates with the transfer of immovable property. A Chief Registrar’s Circular will be issued as soon as clarity in the abovementioned regard has been obtained from the Department of Provincial and Local Government.

2.2 Exemptions under Section 118

2.2.1 Section 118(4) provides for the exemption of certain transactions from the lodgement of rates clearance certificates, as referred to in section 118(1) of the Act. A certificate by the Local Authority, to the effect that the property concerned qualifies under the exemption as referred to in section 118(4) of the Act, must accompany the documentation lodged for the transfer of the property concerned.


3.1 Section 118(4) of the Act provides for an exemption relating to the lodgement of rates clearance certificates, and not an exemption of certain transactions from the payment of fees and duties, as referred to in paragraph 2.2 of Chief Registrar’s Circular No 9 of 2003. The abovementioned issue is now correctly addressed in paragraph 2.2 of this Circular.

3.2 Chief Registrar’s Circular No 9 of 2003 is, therefore, hereby repealed.


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GEOSCIENCE ACT, 1993 (ACT NO 100 OF 1993) AS AMENDED BY THE GEOSCIENCE AMENDMENT ACT, 2003 (ACT NO 11 OF 2003)


The Geoscience Act, 1993 (Act No 100 of 1993), herein after referred to as the Act, came into operation on 1 November 1993. The Act has been amended by the Geoscience Amendment Act, 2003 (Act No 11 of 2003), which Act is deemed to have come into operation on 1 November 1993 (see Government Gazette Number 25068, dated 9 June 2003).


The purpose of the Act is, amongst others, to make provision for the establishment of a Council for Geoscience; to provide for the transfer of certain designated movable and immovable property from the Department of Minerals and Energy to the Council for Geoscience; and to provide for matters connected therewith.


3.1 Description of the Council in deeds and documents:

The Council for Geoscience, herein after referred to as the “Council”, shall in deeds and documents be described as the “Council for Geoscience established by section 2 of the Act No 100 of 1993”.

3.2 Transfer of certain assets and obligations to the Council

3.2.1 In terms of section 26(1) of the Act the following movable and immovable property shall be deemed to have devolved upon the Council as from the date of the commencement of the Act:

1. movable and immovable property belonging to the State and

2. movable and immovable property which immediately prior to the commencement of Act No 11 of 2003 was being utilised by the Geoscience Survey Branch of the Department Mineral and Energy Affairs; and

3. movable and immovable property which the Minister of Mineral and Energy Affairs, with the concurrence of the Minister of State Expenditure and, where applicable, the Minister of Public Works, may designate. 3.2.2 In terms of section 26(4) of the Act all the rights and obligations of the State in respect of the Geological Survey Branch shall, subject to the provisions of the Act, be deemed to have passed to the Council as from the date of the commencement of the Act.

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3.3 Endorsement of title deeds

3.3.1 The Registrar of Deeds must, upon the lodgement of a request by the Council and on submission of a certificate by the Minister that immovable property has passed to the Council in terms of the provisions of the Act, effect the necessary endorsement on the relevant title deed/s as are necessary in order to register the devolving of the property, as contemplated in section 26(1) of the Act. The endorsing of title deeds must, however, only be given effect to when the relevant title deed/s is/are lodged together with an application for an endorsement in this regard.

3.3.2 The Act is silent regarding the endorsing of title deeds in instances where rights and obligations have passed in terms of the provision of section 26(4) of the Act. The procedure described in paragraph 3.3.1 must, therefore, be followed in this regard.

3.3.3 The application must be filed under a T/K/BC code, as the case may be, and the title deed/s must be endorsed along the following lines:

“Endorsement in terms of section 3(1)(v) of Act No 47 of 1937 The within mentioned asset/right/liability* has, in terms of section 26(1)/26(4)* of Act No 100 of 1993, with effect from 1 November 1993, passed to the Council for Geoscience established by section 2 of Act No 100 of 1993.

Application filed with T/K/BC*


*Omit whichever is inapplicable

Examiners should take note that no act of registration shall be permissible unless and until the relevant title deed/s is/are endorsed regarding the devolving or passing referred to in paragraph 3.3.1 and 3.3.2 above.


No transfer duties, stamp duty, office fees or other fees shall be payable in respect of a registration referred to in paragraph 3.3.1 above (section 26(3) of the Act.)


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COLLECTIVE INVESTMENT SCHEMES CONTROL ACT, 2002 (ACT NO 45 OF 2002)


The Collective Investment Schemes Control Act, 2002 (Act No 45 of 2002). Herein after referred to as the Act, came into operation on 3 March 2003 (see notice number R 18, 2003 in Government Gazette Number 25007, dated 3 March 2003).


The purpose of the Act is to regulate and control the establishment and administration of collective investment schemes; to amend or repeal certain laws; and to provide for incidental matters (preamble to the Act).

3. GENERAL

The legislation which has been repealed by the act and which is of concern to the Deeds Office is the Participation Bonds Act, 1981 (Act No 55 of 1981). In this regard see section 117 of the Act read with schedule 3 thereof.

The Act provides for three kinds of collective investment schemes (CIS’s), namely CIS’s in securities (Part IV), CIS’s in property (Part V) and CIS’s in participation bonds (Part VI). The last two are the only ones that concern the Deeds Office and will, therefore, be the only ones to be discussed in this circular.

It is important to note that CIS’s do not possess legal personality and can, therefore, not have property registered in their names. In terms of section 71 of the Act, the assets of CIS’s are regarded as trust property for the purposes of the Financial

Institutions (Protection of Funds) Act, 2001 (Act No 28 of 2001) and should, in terms of section 104, be separated from the assets of the trustee. It is however important to note that, in terms of section 113 of the Act, the provisions of the Trust Property Control Act, 1988 (Act No 57 of 1988) are not applicable to CIS’s. The provisions of Sections 71 and 113 referred to above raise the all important question of vesting in respect of CIS assets. This question is answered in the paragraphs below.

4. COLLECTIVE INVESTMENT SCHEMES IN PROPERTY

In terms of section 48 of the Act, only a company registered in terms of the Companies Act may administer a CIS. In view of section 71 of the Act, read with section 104, immovable property of a CIS must, therefore, be registered in such a manned that it is identifiable as trust property. Such property will, therefore, always vest as follows:

ABC Limited, registration number yyyy/xxxxxx/06, as trustee for XYZ Collective Investment Scheme

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in property or GEF (Pty) Ltd/Limited registration number yyyy/xxxxxx/nn, as nominee company of ABC Limited, trustee for XYZ Collective Investment Scheme in property.

From the above, it is clear that CIS property will always be registered in the name of a trustee or its nominee company. It must be noted that a trustee will always be a public company whilst a nominee company could either be a public company or a private company.

5. COLLECTIVE INVESTMENT SCHEMES IN PARTICIPATION BONDS

In terms of section 52 of the Act a participation bond means

“a mortgage bond over immovable property -

1. which is described as a participation bond and is registered as such in the name of a nominee company and is included in a collective investment scheme in participation bonds; and

2. which is a first mortgage bond or which ranks equally with another first participation bond and has the same mortgagor”

In terms of paragraph (a) of the definition, it is clear that a notarial bond can never qualify as a participation bond. A participation bond must always be described as such and will always be registered in favour of a nominee company. It must, however, be noted that the fact of inclusion in a scheme or otherwise is not a matter of the Deeds Office’s concern.

In terms of paragraph (b), a bond qualifies as a participation bond only if it is a first mortgage or if it ranks pari passu with another first participation bond registered by the same mortgagor.

6. ILLUSTRATION OF THE APPLICATION OF THE DEFINITION

Participation Bond

“... in favour of ABC Proprietary Limited/Limited registration No… as nominee on behalf of investors in XYZ Collective Investment Scheme in participation bonds.

.... the appearer hereby declared to bind specially as a first bond/as a first bond ranking pari passu with participation bond B 123/2003...”

The above illustration serves as an example and, therefore, the intention is not to have its wording religiously adhered to. It would, therefore, suffice if the general principles contained therein were disclosed in a participation bond.

7. APPLICATION OF THE CIRCULAR

The circular must be read in conjunction with CRC 15/2003.

8. REPEAL OF PRIOR CIRCULARS

Chief Registrar’s Circulars 1/1965, 2/1965 and 4/1973 are hereby repealed.


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DEEDS REGISTRIES ACT, 1937 (ACT NO 47 OF 1937) - AMENDMENT OF REGULATIONS


The amended regulations, published in Government Gazette Number 25370 dated 29 August 2003, shall be effective from 29 September 2003.


2.1 Amendment of Regulation 18(1)(a)

Regulation 18(1)(a) has been amended to further provide for the establishment of the identity of a natural person where the name of such person is incorrectly reflected in the identity document, and where the date of birth of a natural person is not reflected, or incorrectly reflected, in the identity document.

2.2 Amendment of Regulation 68

2.2.1 Regulation 68(1A) provides for publication, in the prescribed form, of a notification of the intention to apply for a certified copy of a deed prior to the issuing of such copy by a Registrar of Deeds. Notification in the abovementioned regard must be published in two consecutive issues of a newspaper circulating in the area in which the land is situate or, in the case of a notarial bond, in the area where the bondholder resides or carries on business. The implication of Regulation 68(1A) is that applications in terms of Regulation 68(1) must be lodged together with certified copies of the two publications as contemplated in Regulation 68(1A).

2.2.2 The provisions of Regulation 68(1A) apply mutatis mutandis to the cancellation of mortgage and notarial bonds in terms of Regulation 68(11). The implication of the amendment of Regulation 68(11) is that applications for the cancellation of mortgage or notarial bonds in terms of Regulation 68(11) must be accompanied by certified copies of the two publications as contemplated in Regulation 68(1A).

2.2.3 The provisions of Regulation 68 shall apply mutatis mutandis to the issuing of a certificate of registered title of undivided shares, as contemplated in section 34(2) of the Act.

2.3 Amendment of Regulation 73

The first provisio in Regulation 73(2) provides for two instances where a servitude can be registered without the necessity of a supporting diagram. The word “or” between the words “uniform width” and the words “servitude feature at a specified distance” created problems

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in the past in so far it was interpreted that only the servitude feature in the second instance of this provisio, had to extend along the entire length of a surveyed line shown on a registered diagram of the property concerned. The insertion of the words “in either instance” between the words “registered diagram” and the words “extending along” in the amended Regulation 73, aim to solve the interpretation problem previously experienced in the abovementioned regard.

2.4 Insertion of Form GGG and Form HHH

The insertion of Form GGG and Form HHH are consequential to the amendment of Regulation 68 as referred to in paragraph 2.2.

3. IMPLEMENTATION OF AMENDED REGULATIONS

The amended regulations must be applied with only in respect of deeds lodged after the date of commencement thereof.


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AMENDMENT OF SECTION 17 OF THE DEEDS REGISTRIES ACT NO 47 OF 1937 BY THE DEEDS REGISTRIES AMENDMENT ACT NO. 9 OF 2003

1. COMMENCEMENT OF ACT

The Deeds Registries Amendment Act, 2003 (Act No 9 of 2003) came into operation on 30 April 2003 (see Government Gazette number 24818 dated 30 April 2003).

2. AMENDMENT OF SECTION 17(4) OF ACT NO 47 OF 1937

Section 17(4) of Act No 47 of 1937 (the “Act”) has been amended by the insertion of paragraph (d), as well as by the insertion of a second proviso in the words of the following paragraph (d). The amendment reads as follows:

“(d) is registered in the name of a person who on the date of the registration was a party to a marriage governed by the Recognition of Customary Marriages Act, 1998 (Act No 120 of 1998). the registrar shall on the written application by the person concerned and on the submission of the deed in question and of the relevant facts, endorse the change in status or make a note to the effect that the said person is a party to a marriage in community of property, as the case may be: Provided that where there are two or more mutually dependent deeds, all such deeds must be submitted for endorsement: Provided further that in the case of an order of the court envisaged in section 7(9) of the Recognition of Customary Marriages Act, 1998 (Act No 120 of 1998), the registrar shall, on submission of the relevant deed and court order and without the necessity for a written application, make the endorsement or note.”

3. EFFECT OF THE AMENDMENT OF SECTION 17(4) ON REGISTRATION PROCEDURES

3.1 The amended section 17(4) provides for the following two new instances in which title deeds may be endorsed in order to reflect the registration of immovable property in the name of a married person:

3.1.1 Endorsement in terms of section 17(4)(d) of the Act:

3.1.1.1 Section 17(4)(d) provides for the endorsement of title deeds in order to reflect the registration of immovable property in the name of a person who is a party to a marriage which is governed by the provisions of Act No 120 of 1998.

3.1.1.2 The registrar of deeds must, in terms of section 17(4), effect the necessary endorsement on title deed/s to reflect the name and status of the parties whose marriage is governed by the provisions of Act No 120 of 1998. An endorsement in the abovementioned regard must, however, only be given effect to upon which an application and proof of the relevant facts (registration certificate).

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3.1.2 Endorsement in terms of the second proviso of section 17(4) of the Act:

3.1.2.1 The purpose for the insertion of the second proviso in section 17(4) is to provide for the endorsement of title deeds in instances where a court order has been granted in terms of section 7(9) of Act No 120 of 1998. It is, in terms of the second proviso of section 17(4), not necessary for the lodgement of an application for purposes of an endorsement in this regard. The reason for the abovementioned is found in section 7(9) of Act No 120 of 1998. Section 7(9) provides the registrar or clerk of the court concerned to cause a copy of the court order, together with other relevant documentation, to be furnished upon each registrar of deeds of the “area in which the court is situated”.

3.1.2.2 A possibility exists, however, that the “registrar or deeds of the area in which the court is situated”, may not be the registrar of deeds of the deeds registry in which the immovable property concerned has been registered. In order to overcome the abovementioned problem, the following procedure must be followed in all deeds registries:

3.1.2.2.1 Where a court order as contemplated in section 7(9) of Act No 120 of 1998 has been furnished to a registrar of deeds, such court order must be recorded as a caveat against the names of the parties concerned. A caveat in the abovementioned regard must remain against the names of the parties concerned and must not be uplifted with the transfer of immovable property concerned. The reason for the abovementioned is to serve as notice, to the examiner and the conveyancer, of the marital status and contractual capacity of the parties for any further transactions that may be registered in the deeds registry.

3.1.2.2.1 A Registrar of Deeds must forward a copy of a court order, as referred to in paragraph 3.1.2.2.1, to all other Registrars of Deeds. Upon receipt of such copy of court order the procedure as prescribed in paragraph 3.1.2.2.1 must be followed in the other deeds registries.

4. APPLICATION OF REGULATION 45 ON THE LODGEMENT OF TITLE DEEDS FOR ENDORSEMENT IN TERMS OF SECTION 17 OF THE ACT: 4.1 The provisions of regulation 45(1) must be adhered to with regard to the endorsement of title deeds in terms of section 17 of the Act. Title deeds and documentation must be lodged by a conveyancer, a person employed by such conveyancer, or by a person in the employ of a Government Department, as referred to in regulation 45(1) of the Act.

5. OFFICE FEES

A registration fee is payable for and endorsement in terms of section 17 of the Act.


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BLACKBOOKING OF HEIRS/LEGATEES INVOLVED IN WAIVER, REPUDIATION OR REDISTRIBUTION AGREEMENTS

1. The deeds registry practice of black booking all heirs and legatees involved in waivers, repudiations or redistribution agreements, was based on the judgement made in Estate Smith v Estate Follet 1942 AD 364.

2. The Supreme Court of Appeal, in Wessels NO v De Jager en ‘n ander 2000(4) SA 924 (SCA), held that an insolvent heir does not acquire a right to accept or reject an inheritance, but merely a competence to accept or reject such inheritance. The Court further held that an insolvent heir acquires a right only if he or she accept an inheritance and that a curator of an insolvent estate accordingly acquires no right in this regard.

3. It is clear from the decision in the Wessels case that a repudiation of an inheritance is merely a refusal to accept a right to an inheritance and that it does not amount to a disposition of such inheritance. It is further clear that, only upon acceptance of an inheritance by an insolvent heir, does a right fall upon a curator of an insolvent estate.

4. In order to give affect to the decision in the Wessels-case the deeds registry practice of black booking insolvent heirs that have repudiated, must be discontinued.

5. Examiners must note that the Wessels-case only relates to repudiation and does not affect the existing practice of black booking in cases of waivers and redistribution agreements.

Signed byCHIEF REGISTRAR OF DEEDS

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THE VESTING WITH REGARD TO ASSETS TO BE REGISTERED IN FAVOUR OF A TRUST

1. Deputy Judge President Flemming in Joubert and Others v Van Rensburg and Others, 2001 (1) SA 753, in an orbiter dictum, casts doubt on the legality of the deeds registries’ practice of registering property in the trustees for the time being of a trust. This decisions presented the deeds office with a serious challenge, that is, a challenge of how to react to it. The decision also elicited serious concerns from the legal fraternity and the banking sector. There were two courses of action that were open to the deeds office. The alternatives for the deeds office were for it to either dip its head in the sand like the proverbial ostrich or to stand up and be counted. The deeds office opted for the latter as the former was seen as being more suicidal than the latter. The deeds office, with the concurrence of the legal fraternity and the banking sector, felt that the situation could be remedied by amending the Deeds Registries Act by the insertion of a definition of the word “person”. In this regard the deeds office was inspired by the fact that the legislature had previously defined, for taxation purposes, “person” as including a Trust. In this regard see the definition of “person” in sections 1 of the Transfer Duty Act, 1949 (Act No 40 of 1949) and the Income Tax Act, 1962 (Act No 58 of 1962). The idea behind amending the Act was to enable the Legislator to regulate the matter and thereby remove it from the realm of the Judiciary. Chief Registrar’s Circular No 3 of 2001 was issued for the purposes of laying down a procedure that would be followed pending the amendment of the Act.

2. The Legislator, after numerous debates in the Agriculture and Land Affairs Portfolio Committee, ultimately passed the Deeds Registries Amendment Act, 2003 (Act No 9 of 2003). In this regard see Government Gazette No 24818 dated 30 April 2003. Act No 9 of 2003 amends the Deeds Registries Act by inserting a definition of the word “person” in section 102 thereof. The said definition reads as follows:

“ person’, for the purpose of the registration of immovable trust property only, includes a trust”.

It must be pointed out from the onset that the original draft read as follows:

“person’ includes a trust”.

The idea was to deal with the doubt relating to the practice referred to above. It is, however, with regret to note that the amendment does not serve the purpose it was originally intended for. The definition causes more confusion than clarity. This definition, on a proper construction relates only to immovable property, thereby excluding movable property such as bonds. The definition further creates interpretation problems, for example, what is it that is referred to as “immovable trust property”?

3. In 2002, however, the Supreme Court of Appeal (SCA), in Mkangeli and Others v Joubert and Others 2002 (4) SA 36, reversed the decision of Judge Flemming. It must, however, be noted that the SCA did not reverse the said decision on the basis that Judge Flemming erred in stating that

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the practice of registering deeds in favour of trustees for the time being of a Trust has no legal validity, but on other grounds stated therein. The question of the legality, or otherwise, of the abovementioned practice was thus left open. In this regard Brand JA, who delivered the Judgement with which the other four Judges concurred, stated, at page 43 paragraph E, as follows:

“In the circumstances the correctness of the findings by the Court a quo regarding the validity of the deeds office practice in question, does not require the consideration of this Court”.

In view of what has been said above, it is clear that the decision in Mkangeli is no authority for the proposition that the said Court confirmed the validity of the relevant deeds office practice. It must be noted that even if the validity of the said practice was confirmed in Mkangeli the deeds office would still not be in a position to block the amendment of the Deeds Registries Act because the amending Bill was already in the legislative process when the decision in Mkangeli was handed down.

4. The question that then arises is, how should the deeds office deal with the vesting in respect of assets to be registered in favour of a Trust in the light of the amendments brought about by Act No 9 of 2003? In trying to find an answer to this question, it is necessary to examine the practical effect of the practice of registering deeds in the names of trustees for the time being of a Trust. It is important to note that the mere fact that vesting is in favour of the trustees for the time being of a Trust does not render an asset belonging to a Trust not to belong to such Trust. In other words an asset belonging to a Trust does not cease to belong to such Trust simply because vesting is in favour of the trustees for the time being of such Trust. There seems to be no practical difference in vesting an asset in the trustees for the time being of a Trust and vesting such asset in the name of a Trust. It must be noted that, despite the fact that the vesting is always in the name of a Trust and never in the name of the trustees for the time being.

5. The envisaged Communal Land Rights Bill contains certain proposed amendments to the Deeds Registries Act that will, in due course, remedy the deficiency contained in Act No 9 of 2003.

6. In view of the fact that vesting, on computer, is always in the name of a Trust, the envisaged amendment of the Deeds Registries Act and the conviction as to the correctness of the proposition that there is no practical difference between the abovementioned vestings, the deeds offices are implored to accept any of such vestings.


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LAWS AMENDED BY SCHEDULE 1 TO THE MINERAL AND PETROLEUM RESOURCES DEVELOPMENT ACT, 2002 (ACT NO. 28 OF 2002) AND THE SCHEDULE TO THE MINING TITLES REGISTRATION AMENDMENT ACT, 2003 (ACT NO. 24 OF 2003)

1. Schedule 1 to the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002), as well as the Schedule to the Mining Titles Registration Amendment Act, 2003 (Act No. 24 of 2003), provide for the amendment of the Deeds Registries Act, 1937 (Act No. 47 of 1937), as far as it relates to the discontinuing of the registration of mineral and prospecting rights in deeds registries.

2. The purpose of the amendment of Act No. 47 of 1937, by the Schedule to Act No. 24 of 2003, was to amend the erroneous amendment of Act No. 47 of 1937 in Schedule 1 to Act No. 28 of 2002. The legislature never intended Schedule 1 to Act No. 28 of 2002, as far as it relates to the amendment of Act No. 47 of 1937, to come into operation. This intention, however, has not been given effect to with the promulgation of Act No. 28 of 2002 in terms of Proclamation No. R25 of 2004.

3. The Department of Minerals and Energy is currently engaged in the amendment of Schedule 1 to Act No. 28 of 2002. Registrars of Deeds are, until such time as the abovementioned amendment is effected, requested to regard the amendment of Act No. 47 of 1937 by Schedule 1 to Act No. 28 of 2002 as pro non scripto, and regard the Schedule to Act No. 24 of 2003 as being applicable.

4. This Circular must be read in conjunction with Chief Registrar’s Circular No. 7 of 2004.


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LODGEMENT OF RATES CLEARANCE CERTIFICATES IN TERMS OF THE LOCAL GOVERNMENT: MUNICIPAL SYSTEMS ACT, 2000 (ACT NO. 32 OF 2000)

1. Section 118(1) of the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000), places a restriction on the registration of a transfer of property without the production, to a registrar of deeds, of a prescribed certificate.

2. A prescribed certificate shall, in terms of section 118(1A) of Act No. 32 of 2000, be valid for a period of 120 days from date of issue.

3. The prescribed certificate required by section 118(1A) of Act No. 32 of 2000 was published in Government Notice No. 686, dated 23 May 2003. This certificate provides for a validity date (expiry date) that must, naturally, conform to the provisions of section 118(1A) of the Act. The expiry date referred to in a certificate must, in other words, be calculated to a date 120 days after the date of issue.

4. Although the prescribed certificate provides for the completion of an expiry date, certificates of which the expiry date is not completed must also be accepted for registration purposes, save where the 120 days has already expired.

5. It is clear from the abovementioned that an obligation is placed on a registrar of deeds to see that the expiry date on a certificate complies with the provisions of section 118(1A) of Act No. 32 of 2000. The provisions of section 4 of the Interpretation Act, 1957 (Act No. 33 of 1957) finds application in this regard. The said section reads as follows:

“When any particular number of days is prescribed for the doing of any act, or for any other purpose, the same shall be reckoned exclusively of the first and inclusively of the last day, unless the last day happens to fall on a Sunday or on any public holiday, in which case the time shall be reckoned exclusively of the first day and exclusively also of every such Sunday or public holiday”.

6. In order to comply with the provisions of section 118(1A) of Act No. 32 of 2000, it is advisable that registrars of deeds regard certificates as valid for a period of 120 days from the date of issue regardless of the disclosure of an expiry date that does not comply with the provision of Act No. 32 of 2000.

7. The Department of Provincial and Local Government has been requested to advise local authorities with regard to the correct application of section 118(1A) of Act No. 32 of 2000. Paragraph 6 of this Circular must therefore be implemented with effect from 1 August 2004.


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MINING TITLES REGISTRATION ACT, 1967 (ACT NO.16 OF 1967), AS AMENDED BY THE MINING TITLES REGISTRATION AMENDMENT ACT, 2003 (ACT NO. 24 OF 2003)

1. DATE OF COMMENCEMENT

The Mining Titles Registration Act, 1967 (Act No. 16 of 1967), herein after referred to as the Act, came into operation on 1 October 1967. The Act has been amended by the Mining Titles Registration Amendment Act, 2003 (Act No. 24 of 2003), which Act came into operation, together with the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002), on 1 May 2004 (see Proclamation No. R25 of 2004).


The purpose of the Act is, inter alia, to re-regulate the registration of mineral and petroleum titles and other rights connected therewith; to effect certain amendments that are necessary to ensure consistency with the Mineral and Petroleum Resources Development Act, 2002; and to amend the Deeds Registries Act, 1937 (Act No. 47 of 1937) so as to remove the functions relating to the registration of rights to minerals from the ambit of the said Act.

3. APPLICATION OF THIS CIRCULAR AND REPEAL OF PREVIOUS CIRCULAR

This Circular sets out the procedure in deeds registries for the de-registration of mineral rights and other rights connected therewith. This Circular further provides for the discontinuance of any further acts of registration with regard to the abovementioned rights in deeds registries (The registrars of deeds have already been informed to discontinue the registration of the abovementioned rights, as from 16 July 2004). Chief Registrar’s Circular No. 7 of 2004 is therefore hereby repealed and substituted with this Circular.

4. IMPACT OF CERTAIN PROVISIONS OF ACT NO. 24 OF 2003 AND ACT NO. 28 OF 2002 ON REGISTRATION PROCEDURES IN THE DEEDS REGISTRY

4.1. Discontinuation of acts of registration pertaining to mineral rights and other rights connected therewith in deeds registries

4.1.1. Section 53 of Act No. 24 of 2003 provides for the removal, from Act No. 47 of 1937, of all the functions and procedures relating to the registration of mineral rights and other rights connected therewith (herein after referred to as mineral rights) (also see section 110 of Act No. 28 of 2002 that provides for the amendment of Act No. 47 of 1937 to the same extent).

4.1.2. Section 53 of Act No. 24 of 2003 and section 110 of Act No. 28 of 2002 further provide for the amendment of Act No. 47 of 1937, subject to the provisions of Schedule II of Act No. 28 of 2002 (herein after referred to as “Schedule II”). Schedule II provides

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for the de-registration of mineral rights in deeds registries. The registrars of deeds must therefore only allow for the de-registration of mineral rights, as discussed in paragraphs 4.2, 4.3, and 4.4 hereof.

4.2. De-registration of mineral rights:

4.2.1. Schedule II provides for the conversion, by the Minister of Minerals and Energy, of all old order rights (“rights”) including OP26 rights (see definition of rights in Item 1 of Schedule II). Schedule II provides for different time frames during which the rights, as referred to in the said Schedule, need to be converted. Failure to convert the abovementioned rights within the prescribed time will have the effect that such rights lapse by law and will automatically be de-registered.

4.2.2. Upon conversion of a right by the Minister of Minerals and Energy, the holder of such right must lodge the notice of the conversion of the right, together with the title deed of the converted right, for registration in the Mineral and Petroleum Titles Registration Office.

4.2.3. In order to provide for the de-registration in a deeds registry of a right to minerals that has been registered in the Mineral and Petroleum Titles Registration Office, the notice of the conversion, together with the title deed of the mineral rights as referred to in paragraph 4.2.2, must be lodged by a conveyancer in the deeds registry concerned. The abovementioned documentation must be accompanied by an application for the endorsement of the title deed in order to reflect the de-registration of the rights held there under. An application in the abovementioned regard must read along the following lines:

Application for the de-registration of rights converted and registered in terms of the provisions of the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002)

I, *......................., hereby apply for the de-registration of **................., held under*** ................. over **** ............. The abovementioned right has on †††.................. been converted and registered in terms of the provisions of the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002), to a †††........................ right,registered under number ‡‡..................... in the Mineral and Petroleum Titles Registration Office.

Date: Holder * Insert full name of holder of rights ** Insert type of right as referred to in the title deed *** Insert description and number of title deed **** Insert immovable property description ††† Insert date of the registration †††† Insert name of right ‡‡ Insert registration number of right

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4.2.4. Upon receipt of an application, as referred to in paragraph 4.2.3, the registrar of deeds must cause the title deed of the relevant mineral rights to be endorsed with regard to the de-registration of the mineral rights in the deeds registry. The title deed must be endorsed along the following lines:

“Endorsement in terms of section 3(1)(v) of the Deeds Registries Act, 1937 (Act No. 47 of 1937): The within-mentioned right has on *..................... been converted and registered in terms of the provisions of the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002), to a ††........................ right registered under number ‡‡.................. in the Mineral and Petroleum Titles Registration Office.


* Insert date of the conversion †† Insert name of right ‡‡ Insert registration number of right

4.2.5. Where it is evident from the title deed of the mineral rights that the rights held there under are mortgaged by a mortgage bond, the office copy of such mortgage bond must be endorsed to reflect the conversion of the mineral rights. The office copy of the mortgage bond must be endorsed along the following lines:

“Endorsement in terms of section 3(1)(v) of the Deeds Registries Act, 1937 (Act No. 47 of 1937): The within-mentioned mortgaged right has on *......................... been converted and registered in terms of the provisions of the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002), to a ††.............. right registered under number ‡‡............ in the Mineral and Petroleum Titles Registration Office.


* Insert date of the conversion †† Insert name of right ‡‡ Insert registration number of right

4.2.6. No transactions with regard to a mortgage bond that is registered over mineral rights must be registered in a deeds registry. The reason for the abovementioned is the removal, from the Deeds Registries Act, 1937, of all references to mineral rights. Furthermore, a registrar of deeds is not in the position to determine whether a mineral right that has been mortgaged by a mortgage bond, has been converted or whether such right has lapsed. Transactions pertaining to such mortgage bonds must, therefore, be registered in the Mineral and Petroleum Titles Registration Office.

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4.3. Conditions relating to minerals rights in title deeds of immovable property:

4.3.1. Schedule II of Act No. 28 of 2002 provides for different time frames during which the rights, as referred to in the said Schedule, need to be converted. OP26 mining leases must, for example, be converted within a period of 5 years from the date of the operation of the Act (that is 1 May 2004). Old order prospecting rights, on the other hand, need to be converted within a period of 2 years from 1 May 2004, and unused old order rights within 1 year from 1 May 2004. The deeds registration procedure is not familiar with the Schedule II, and a registrar of deeds is therefore not in the position to identify the time period during which a mineral right needs to be converted.

4.3.2. Where a title deed to immovable property contains a condition with regard to the reservation of mineral rights, such condition must remain in the title deed to that immovable property. If conditions relating to mineral rights are removed at this stage, the possibility exists that the Department of Minerals and Energy may regard the new owner of the immovable property as the holder of the mineral rights held there under.

4.3.3. Condition relating to the reservation of mineral rights in title deeds to immovable property must, in view of what has been said in paragraph 4.3.2. remain in such titles deeds until a further directive has been issued in this regard.

4.4 The provisions of regulation 41(1) of act no. 47 of 1937

4.4.1. In future mortgage bonds will not have to be made subject to the reservation of mineral rights. However, where a bond has been made subject to the reservation of mineral rights, the reference to the mineral rights should be treated as pro non scripto.

5. ISSUING OF COPIES OF TITLE DEEDS TO MINERALS:

5.1. A copy in lieu of original deeds to minerals may not be issued in instances where such title deed has been endorsed with regard to the de-registration of the mineral rights in the deeds registry. A copy of the title deed relating to the said mineral rights must then be applied for at the Mineral and Petroleum Titles Registration Office. However, copies of deeds to minerals for information (regulation 66 of Act No. 47 of 1937) and judicial purposes (regulation 67 of Act No. 47 of 1937) may still be issued after the de-registration of the mineral rights in the deeds registry. 6. OFFICE FEES

6.1. No office fees shall be payable in respect of the noting of a de-registration of a mineral right, as referred to in paragraph 4.2 hereof.


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DEEDS REGISTRIES ACT, 1937 (ACT NO. 47 OF 1937) - AMENDMENT OF REGULATIONS


The amended regulations, published in Government Gazette Number 26800 dated 23 September 2004, shall be effective from 25 October 2004.


2.1 Amendment of regulation 20:

2.1.1. Regulation 20 has been amended by the omission of sub-regulation (3) thereof. The reason for the abovementioned omission is that regulation 20(1) endows a registrar of deeds with adequate discretion to ensure that all deeds and documents for filing or recording in a deeds registry, are of satisfactory quality.

2.2. Amendment of regulation 51

2.2.1. Regulation 51(1) has been amended by the omission of the reference to a certified copy of a deed that has been issued to serve as an original. The reason for the abovementioned omission is that a certified copy of a title deed is a title deed (section 98(1) of Act No. 47 of 1937).

The amended regulation 51(1) reads as follows:

“51(1)Where it is sought to deal with immovable property, the title deed of such property shall, save as provided in the Act and in sub-regulation (2) hereof, be produced and be mentioned in the deed dealing with such property. It shall, however, not be necessary, unless the Registrar so requires, to produce any deed by which the property was previously held, whether such deed be the diagram deed or any intermediate deed, nor shall the Registrar be required to endorse thereon any record of subsequent dealings with the property.”.

2.2.2. Reg 51(2) has been amended to provide for a trustee or liquidator to be exempt from producing a title deed, or certified copy of such title deed, in instances where the trustee or liquidator is unable to obtain possession thereof for purposes of transferring the property of an insolvent or company in liquidation.

The amended regulation 51(2) reads as follows:

“51(2)Where immovable property is to be transferred or ceded in execution of the judgment of any competent court by the officer appointed by law, or by such court, or where such immovable property is to be transferred or ceded by an officer appointed

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in terms of a law pertaining to insolvency or by an executor referred to in section 56(1) (b) of the Act, it shall not be necessary to produce the title deed of such property if such officer or executor certifies in writing that he or she has been unable to obtain possession of such title deed: Provided that where the duplicate original of such title deed filed of record in a Deeds Registry has been lost or destroyed it shall be necessary for such officer or executor to obtain a certificate of registered title under the provisions of section thirty eight of the Act, for which purpose such officer or executor shall be regarded as the owner of the immovable property: Provided further that in the case of a transfer of immovable property by virtue of the second proviso of section 16, the above provisions shall not apply.”.

2.2.3. Regulation 51(3) has been repealed due the repeal of Act No. 13 of 1944 by the Land and Agricultural Development Bank Act, No. 15 of 2002. See the Constitutional Court Case CCT 15/00, First National Bank of South Africa Limited v Land and Agricultural Bank of South Africa and others.

2.3. Amendment of Regulation 68:

2.3.1. Regulation 68 has been amended by the insertion of sub-regulations (1B), (1C) and (1D):

2.3.1.1. Sub-regulation (1B) provides for the issuing of a certified copy of a deed, without compliance to sub-regulation (1A) (necessity of publication) and sub-regulation (2) (lodgement of a consent by a mortgagee or lessee), in instances where it can be proved that the registry duplicate of a title deed has been lost, destroyed, defaced or damaged through negligence of the registrar of deeds.

Sub-regulation (1B) reads as follows:

“(1B)If a Registrar is satisfied that any deed referred to in sub-regulation (1) has been inadvertently lost, destroyed, defaced or damaged by him or her, the Registrar shall, notwithstanding the provisions of sub-regulations (1A) and (2), issue a copy thereof upon submission of an application and an affidavit by the relevant conveyancer or person contemplated in section 15A(1) and (2) of the Act.”.

2.3.1.2. Sub-regulation (1C) provides for the issuing of a certified copy of a deed, without compliance to sub-regulation (1A) (necessity of publication) and sub- regulation (2) (lodgement of a consent by a mortgagee or lessee), in instances where a title deed has for any reason become unserviceable.

Sub-regulation (1C) reads as follows:

“(1C)The provisions of sub-regulation (1B)shall apply mutatis mutandis in respect of any deed referred to in sub-regulation (1), which has for any reason become unserviceable.”

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2.3.1.3. Sub-regulation (1D) provides for the exemption of the State from the provisions of sub-regulation (1A).

Sub-regulation (1D) reads as follows:

“(1D)The provisions of sub-regulation (1A) are not applicable to a deed in respect of land which is held by the Minister of Land Affairs

(a) in trust for any person or persons;

(b) for any nominee or nominees;

(c) for or on behalf of any other person or persons, and which is registered in the name of the State, a Minister or any official of the State; or

(d) to land which is administered by the Minister of Land Affairs.”

2.4. Amendment of Regulation 71

Regulation 71 has been amended to limit its ambit and to clearly identify the business which can not be conducted by means of correspondence. The said regulation reads as follows:

“71.No preparation, lodgement or registration of deeds or other documents shall be done in a Deeds Registry by means of correspondence.”


The amended regulations must be applied only to deeds lodged after the date of commencement thereof.


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LODGING OF RATES CLEARANCE CERTIFICATES

1. PURPOSE OF THE CIRCULAR

The purpose of this Circular is to exempt the State from the requirement of lodging rates clearance certificates as prescribed in section 118 of the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000) in instances where property was incorrectly vested in the National Government in terms of section 239 of Act No. 200 of 1993 read with Item 28 of the Constitution of the Republic of South Africa Act, 1996 (Act No. 108 of 1996), but should have been vested in a Provincial Government.

2. BACKGROUND

2.1. A meeting was held with representatives of the National Department of Public Works on 4 October 2004.

2.2 A large number of provincial properties in all Provinces were incorrectly vested in the National Government, but should have vested in their respective Provincial Governments.

2.3. According to the National Department of Public Works, the said Department of Public Works is responsible for the payment of rates and taxes even where the property is registered in the name of the Provincial Government. The vesting / transferring of property to the Provincial Government would not absolve them of their liability to pay rates and taxes.

2.4. The National Department of Public Works is experiencing difficulty in acquiring rates clearance certificates for farm properties. In many areas where properties were incorrectly vested in the National Government instead of the relevant Provincial Government, the municipalities often take up to 8 months to issue such certificates. Many of the properties are required for township establishment, which is a provincial matter, and the delay caused in waiting for rates clearance certificates is negatively impacting on service delivery.

3. In view of the urgency of the matter and the representations made by the National Department of Public Works and the fact that there is no apparent prejudice to any party, it was decided to exempt rectification transfers from the lodging of rates clearance certificates, but only in instances where the property was vested in the National Government in terms of Section 239 of Act No. 200 of 1993 read with Item 28 of Schedule 6 of Act No. 108 of 1996, but should have vested in the relevant Provincial Government.

4. The causa of a Deed of Transfer in the abovementioned regard must set out the facts fully and substantially in the following manner: “Whereas the within mentioned property was incorrectly vested in the National Government of the Republic of South Africa in terms of a Certificate issued by the Minister of Land Affairs under Section

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239 of Act No. 200 of 1993 read with Item 28 of Schedule 6 of Act No. 108 of 1996, and Whereas the property should have vested in the Provincial Government of ........................................ ..............................and

Whereas the said National Government and Provincial Government have agreed to rectify the matter and transfer the Land to the Provincial Government.

NOW THEREFORE ......................”

5. Examiners should not call for a rates clearance certificate whenever a transaction in the abovementioned regard is lodged.


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NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004 (ACT NO. 10 OF 2004)


The National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004) (“the Act”), with the exception of sections 49, 57, 65, 66, 71, 105, Chapter 6 and Chapter 7, came into operation on 1 September 2004. Sections 49, 57, 65, 66, 71 and Chapter 7 will come into operation on 1 April 2005. Section 105 and Chapter 6 will come into operation on 1 January 2006 (see Proclamation No. R.47 of 2004 in Government Gazette No. 26887 dated 8 October 2004).


The purpose of the Act, inter alia, is to provide for the management and conservation of South Africa’s biodiversity within the framework of the National Environmental Management Act, 1998, the establishment and functions of a South African National Biodiversity Institute, the repeal of the Forest Act, 1984 (Act No. 122 of 1984), and for matters connected therewith.

Notwithstanding the repeal of Act No. 122 of 1984, anything done in terms of Act No. 122 of 1984, which may or must be done in terms of the Act, must be regarded as having been done in terms of the Act (section 104(1) of the Act).

3. APPLICATION OF THIS CIRCULAR AND REPEAL OF PREVIOUS CIRCULAR

The Act does not provide for an exemption from the payment of registration and/or other fees (see paragraph 5 hereof). Chief Registrar’s Circular No. 16 of 2004 is therefore hereby repealed and substituted with this Circular.


4.1. South African National Biodiversity Institute

4.1.1. Description of the Institute in deeds and documents

The South African National Biodiversity Institute, herein after referred to as the Institute, shall in deeds and documents be described as the:

“South African National Biodiversity Institute, established by section 10(1) of Act No. 10 of 2004”. 4.1.2. Passing of assets and liabilities to the Institute

All the assets, liabilities, rights and obligations which vest, immediately before the date of the coming into operation of the Act, in the former National Botanical Institute, established by section 57 of Act No. 122 of 1984, shall vest in the Institute (section 104(4)(a) of the Act).

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4.1.3. Endorsement of title deeds

Although the Act is silent on the lodgement of an application and the relevant title deed/s, the vesting of assets, liabilities, rights and obligations, referred to in section 104(4)(a) of the Act, must be given effect to only when an application and the relevant title deed/s is/are lodged for endorsement. The relevant deed/s must be endorsed along the following lines:

“Endorsement in terms of section 3(1)(v) of the Deeds Registries Act, 1937 (Act No. 47 of 1937) The within-mentioned asset/liability/right* has, with effect from 1 September 2004 vested in the South African National Biodiversity Institute, established by section 10(1) of Act No. 10 of 2004.



*Omit whichever is applicable

Examiners should take note that no act of registration shall be permissible unless and until the relevant title deed/s is/are endorsed regarding the passing mentioned in paragraph 4.1.2.

5. OFFICE FEES

An office fee is payable in respect of an endorsement referred to in paragraph 4.1.3 supra.


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MINING TITLES REGISTRATION ACT, 1967 (ACT NO. 16 OF 1967), AS AMENDED BY THE MINING TITLES REGISTRATION AMENDMENT ACT, 2003 (ACT NO. 24 OF 2003)

1. ENDORSING OF TITLE DEEDS OF IMMOVABLE PROPERTY AND TITLE DEEDS OF REAL RIGHTS TO REFLECT THE DE-REGISTRATION OF MINERAL RIGHTS

1.1. The title deed of the relevant mineral rights, together with the relevant title deed of immovable property and relevant title deeds of real rights need to be endorsed in order to reflect the de-registration of rights converted and registered in terms of the provisions of the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002) (the Act) (see paragraph 4.2.4 of Chief Registrar’s Circular No. 11 of 2004 where reference is made to the endorsement of the title deed of the mineral rights only).

1.2. The relevant title deeds must be endorsed along the following lines: “Endorsement in terms of section 3(1)(v) of the Deeds Registries Act, 1937 (Act No. 47 of 1937): The right referred to in paragraph * ................, has on ** ........................... been converted and registered in terms of the provisions of the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002), to a ††.............right registered under number ‡‡............... in the Mineral and Petroleum Titles Registration Office.


* Insert the number of the relevant paragraph

** Insert the date of the conversion

†† Insert the name of the right

‡‡ Insert the registration number of the right

1.3. In instances where the title deed of immovable property / real rights is/are not available, a caveat must be noted to the effect that the client’s copy must be endorsed whenever it is lodged for an act of registration.

1.4. Examiners should take note that no act of registration shall be permissible unless and until the relevant title deed/s is/are endorsed regarding the conversion mentioned in paragraph

2. REGISTRATIONS TO ENSURE CORRECT INFORMATION IN TITLE DEEDS

2.1. The following are the only acts of registration that are permissible with regard to a title deed of mineral rights:

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2.1.1. acts of registration to rectify an error in the name or the description of any person or property mentioned in a title deed to mineral rights, or in the conditions affecting the rights held under such title deed.

2.1.2. acts of registration to update a title deed to mineral rights that relate to a change of name or conversion of the holder/cessionary of the rights held under such title deed.

2.2. Acts of registration on title deeds to mineral rights, referred to in paragraph 2.1.1 and 2.1.2 are permissible until de-registration or lapsing of the right held there under.


3.1. This Circular must be read in conjunction with Chief Registrar’s Circular No. 11 of 2004.


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ARREAR DEBTS: DEEDS REGISTRATION TRADING ACCOUNT DETERMINATION OF TIME PERIOD AFTER WHICH OUTSTANDING DEBTS WILL BE IN ARREARS - REGULATIONS 4A AND 45(8) OF THE DEEDS REGISTRIES ACT, 1937 (ACT 47 OF 1937).

1. In accordance with the discretion afforded the Chief Registrar of Deeds in the definition of the expression “in arrears”, contained in regulation 4A of the Deeds Registries Act, 1937 (Act 47 of 1937) (hereinafter referred to as “the Act”), the period, referred to in the aforementioned definition, and after which outstanding debts due to the Deeds Registration Trading Account shall, for the purpose of regulation 45(8) of the Act, be deemed to be in arrears, is hereby determined to be 30 days from date of statement. (Paragraph 7 of Chief Registrar’s Circular No. 7/2000 refers.)

2. The above amendment will affect the application of Chief Registrar’s Circulars 7/2000 and 8/2000 (last-mentioned not issued to conveyancers). Registrars of Deeds must ensure that the processes and procedures to be followed in terms of these circulars are suitably adapted. The wording of Annexures A and B to Chief Registrar’s Circular No. 8/2000, in particular, must be aligned.

3. Annexure A to Chief Registrar’s Circular No. 8/2000 is amended as follows:-

3.1 The following paragraph is substituted for Paragraph 3.1:-

“If the correctness of any specific transaction(s) included in the arrears has been disputed as provided for in regulation 4A of the Act, such disputed items shall, for the duration of the dispute, not be deemed to be arrears”;

3.2 Paragraph 3.2 is deleted;

3.3 Sub-paragraphs 3.3 and 3.4 are renumbered as 3.2 and 3.3 respectively.

4. The amendment in paragraph 1 hereof to the period within which outstanding debts are deemed to be in arrears will apply only to so-called “DRS Accounts” and debts flowing from the registration of deeds and documents as well as the physical provision of information and copies at Deeds Registries. The corresponding periodin respect of information and copies provided by electronic means, either in bulk format or by means of the DeedsWeb and Document Copy Systems, shall remain 60 days from date of statement.

5. This directive shall be effective from 1 May 2005.


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ELECTRONIC ISSUING AND FILING OF TRANSFER DUTY RECEIPTS

1. IMPLEMENTATION OF ELECTRONIC SYSTEM

The South African Revenue Services (SARS”) has implemented a system whereby conveyancers will be able to submit transfer duty declarations and effect transfer duty payments electronically, via the Internet. This system enables SARS to electronically authorise the issuing of transfer duty receipts or exemption certificates and provide for extraction of such receipts or exemption certificates from the SARS website.

2. COMING INTO OPERATION OF ELECTRONIC SYSTEM

The new system came into operation on 1 April 2005. With effect from 1 April 2005 deeds offices must accept for registration purposes transfer duty receipts and exemption certificates extracted electronically from the SARS website (see examples attached). The ‘old’ transfer duty receipts may, however, still be accepted for purposes of registration during the transitional period (see paragraph 4 below).

3. VERIFICATION OF TRANSFER DUTY RECEIPTS

3.1. In order to verity a transfer duty receipt or an exemption certificate that has been extracted from the SARS website, deeds registries must call for a certificate upon the lodgement of such a receipt or exemption certificate. A certificate in the abovementioned regard must be made on the transfer duty receipt or exemption certificate and must read along the following lines:

“Verification of Transfer Duty Receipt / Exemption Certificate

I, *…………………. hereby certify that this is a true copy of transfer duty receipt number/ exemption certificate number**………………… that has been extracted from the SARS website (e-filing only).

DATE: CONVEYANCER/NOTARY/COMMISSIONER OF OATHS

* Insert full name of Conveyancer/Notary/Commissioner of Oaths ** Insert transfer duty receipt number / exemption certificate number

3.2. SARS has provided the abovementioned wording for conveyancers and attorneys to be completed on the electronic receipts and exemption certificates. It must however be noted that the certificate must be given by a conveyancer, notary or commissioner of oaths.

3.3. It must be noted that SARS will also issue ‘new’ transfer duty receipts manually. A ‘new’ transfer duty receipt that has been issued manually must contain an endorsement from SARS as well as a cash register receipt.

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3.4. ‘New’ transfer duty receipts that have been issued electronically must contain the certificate as referred to in paragraph 3.2 supra.

4. TRANSITIONAL PERIOD

4.1. SARS has provided for a transitional period during which ‘old’ transfer duty receipts will still be issued. SARS, however, will discontinue the issuing of ‘old’ transfer duty receipts in respect of transactions entered into on or after 1 May 2005. This means that ‘old’ transfer duty receipts may not be accepted for registration purposes, in respect of transactions which were entered into on or after 1 May 2005.

5. FORMAT AND INFORMATION IN TRANSFER DUTY RECEIPTS

5.1. Transfer duty receipts drawn off the SARS website will be in the format of a TD2 (Part 2), TD5 (Part 2), or TD6 document (see examples attached hereto). The TD2 relates to a transfer duty receipt/exemption certificate with the purchase of immovable properly. The 105 (Part 2) document relates to a transaction that is subject to VAT and thus exempt from transfer duty. The TD6 document is an annexure (see paragraph 5.6 infra).

5.2. In order to accommodate SARS in the electronic issuing of transfer duty receipts and exemption certificates it was agreed upon between SARS and the Chief Registrar of Deeds that full details of the transferor, transferee and property description do not have to be reflected in TD2, TD4 and TD5 documentation. The information in the TD2, TD4 and TD5 documentation must! however, always be capable of being identifiable with the transaction it relates to- It is not necessary for the marital status of parties to be referred to in a TD2, TD4 and TD5 document. Where parties are married in community of property, the name of both the husband and the wife must be referred to. Based on the current format of the new transfer duty documentation, the details of the husband and wife will appear as separate parties. Abbreviations may also be used in TD2, TD4 and TD5 documentation.

5.3. Where a transaction relates to the registration of a servitude, a short description of the servitude must be referred to in the space provided for the properly description. 5.4. Examiners must note that the provisions of Regulation 34(4) of Act No. 47 of 1937 must be adhered to in that the names of all the members of a firm or partnership must be referred to in respect of transactions in which a firm or partnership is a party.

5.5. Minor errors with regard to the description of a transferor, transferee and property description in TD2, TD4 and TD5 documentation may be rectified by means of a certificate by a conveyancer, or by the person who has signed the relevant certificate (see paragraph 3 above). Where a material amendment to the transfer duty receipt is required, such amendment must be affected and endorsed by SARS. Furthermore, no certificate may be accepted for purposes of any errors relating to the consideration and calculation of transfer duty/VAT in TD2, TD4 and TD5 documentation. Errors with regard to the consideration and calculation of transfer duty/VAT in TD2, TD4 and TD5 documentation must be referred to SARS for amendment and endorsement.

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5.6. Where insufficient space is provided for in the TD2, TD4 and TD5 documentation for the description of the parties or property description, an Annexure (TD6) with the same receipt number as the TD2, TD4 and TD5 document to which it relates, must be attached and duly verified for purposes of registration.


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SECTIONAL TITLES ACT, 1986 (ACT NO. 95 OF 1986): AMENDMENTS OF THE REGULATIONS


The amended regulations, published under Government Notice No. R.438, in Government Gazette No.27561, came into operation on 13 May 2005.



The heading of regulation 17 has been amended to limit it to the transactions prescribed in the said regulation. The amended heading reads as follows: “Alienation and letting of common property”


Regulation 27 has been amended by the insertion of sub-regulation (3). Sub-regulation (3) prescribes the submission of documents that must accompany an application for the registration of a plan of extension of the common property. Sub-regulation (3) reads as follows:

“(3) The application contemplated in sub-regulation (1)(a) must be accompanied by an amended schedule as contemplated in section. 11 (3)(b) of the Act, where the land to be incorporated into the communal scheme concerned is subject to conditions which are different from the conditions registered at the opening of the sectional title register”.

2.3. Amendment of Regulation 28

2.3.1. Regulation 28 has been amended by the insertion of sub-regulations (4) and (5).

Section 27 of Act No. 95 of 1986, as amended by Act No. 29 of 2003, provides for the devolution of an exclusive use area which remains registered in the name of a person who has ceased to be a member of the body corporate and identifies a beneficiary to whom such exclusive use area must be ceded. Sub-regulation (4) prescribes the procedures that must be followed in ceding such exclusive use area to the identified beneficiary.

Sub regulation (4) reads as follows:

“(4)(a) Whenever any real right to an exclusive use area vests in the body corporate as contemplated in section 27(1)(c) or section 27(4)(b) of the Act, the registrar

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shall upon lodgment of an application by the body corporate, nearly as practicable in the form AG in Annexure 1, issue a certificate of real right in favour of the body corporate in the form AH of Annexure 1.

(b) If the real right to such exclusive use area is hypothecated, the registrar shall endorse the fact of the issuing of such certificate on the registry duplicate of the bond and, if the original bond is at any time lodged with the registrar’s office for any purpose except cancellation, the registrar shall make a similar endorsement thereon: Provided that the issuing of such certificate shall not prejudice any claim to compensation which any person may have as a result of the vesting of such right.

(c) The body corporate shall produce the title deed of the real right to such exclusive use area to the registrar, together with the certificate of real right, and the registrar shall thereupon endorse the fact of the issuing of such certificate on such title deed.

(d) If the body corporate does not produce the title deed of the real right to such exclusive use area, it must submit to the registrar an affidavit stating the reasons why it has been unable to produce the title deed and the registrar shall if he or she is satisfied with the reasons, endorse the fact of the issuing of the certificate on the registry duplicate of such title deed, and if the original title deed is at any time lodged with his or her office for any purpose, the registrar shall make a similar endorsement thereon.

(e) The registrar shall not issue the said certificate unless a certificate has been furnished by the body corporate to the effect that the provisions of section 27 of the Act in connection with the vesting of such right have been complied with.”.

2.3.2. Section 27 of Act No. 95 of 1986, as amended by Act No. 29 of 2003, provides for a mechanism of obtaining a separate title deed for an individual exclusive use area in cases where exclusive use areas are held by means of one title deed. Sub-regulation (5) of regulation 28 prescribes the procedures that must be followed in obtaining such separate title deed for an individual exclusive use area.

Sub-regulation (5) reads as follows:

(5)(a) A separate title deed as contemplated in section 27(7) of the Act may be obtained by the registered holder from the registrar upon written application accompanied by the title deed of the right to the exclusive use area concerned and such title deed must be issued, nearly as practicable, in the form Al in Annexure 1.

(b) If the right to the exclusive use area concerned is subject to a registered mortgage bond, that bond shall be produced to the registrar by the holder thereof, upon the request by and at the expense of the applicant.

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(c) Before issuing such title deed the registrar shall cause to be made upon the title deed to the exclusive use area concerned and upon the mortgage bond an endorsement to the effect that a separate title deed as contemplated in section 27(7) of the Act, has been substituted for the one title deed in respect of the right to the exclusive use area concerned and the registrar shall further make the necessary entries in the registers of the issue of the separate title deed and shall, if the right to the exclusive use area is mortgaged, endorse that fact upon the title deed so issued.

(d) Any separate title deed, when issued, shall in respect of the right to the exclusive use area described therein, take the place of the title deed or deeds by which such right was previously held and the issue of such title deed shall not in any manner affect any right or obligation in connection with such right to the exclusive use area concerned.”.

2.4. Form G Form G has been amended to provide for the issuing of Certificates of Real Right: Exclusive Use Areas on the registration of the sectional plan of extension.

2.5. Form H Form H has been amended to provide for the full property description in instances where a sectional title scheme is situated on a farm property.

2.6. Form 0 Form 0 has been amended to provide for the issuing of a Certificate of Real Right to exclusive use areas as contemplated in section 27(1) of Act No. 95 of 1986.

2.7. Form AG The insertion of Form AG is consequential to the amendment of regulation 28.

2.8. Form AH The insertion of Form AH is consequential to the amendment of regulation 28.

2.9. Form Al The insertion of Form Al is consequential to the amendment of regulation 28.

3. Annexures: Certain amendments have been affected to Annexure 8 of the Regulations to Act No. 95 of 1986. The said amendments relate to consumer issues and are not referred to in this Circular.


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DEEDS REGISTRIES ACT 1937 (ACT NO.47 OF 1937): AMENDMENT OF REGULATIONS

1. Commencement of amended Regulations

The amended regulations, published in Government Gazette Number R.451 dated 20 May 2005, shall be effective from 20 June 2005.

2. Amendment of Regulation 68

2.1. Regulation 68(1) of the regulations to the Deeds Registries Act No. 47 of 1937 is amended-

(a) by the deletion of sub-regulation (1A); (b) by the deletion of sub-regulation (1B); (c) by the deletion of sub-regulation (1C): (d) by the deletion of sub-regulation (1D).

2.2. Regulation 68(11) of the regulations to Act No. 47 of 1937 is amended by the substitution for sub-regulation (11) of the following sub-regulation:

“(11) If the registered holder of a mortgage or notarial bond (which has been lost or destroyed) or his duly authorised agent desires to procure cancellation of the bond, and has made written application duly witnessed to the Registrar to cancel such bond, and has complied, mutatis mutandis, with the provisions of sub-regulations (1), (2) and (3) of this regulation, the Registrar shall, if he is satisfied that no good reason to the contrary exists, cancel the registration duplicate of such bond, and such cancellation shall be deemed to be a cancellation of such bond notwithstanding that the original of such bond was not submitted for cancellation.”.

3. Deletion of Forms

The Regulation to Act No. 47 of 1937 is amended by the deletion of the following Forms: -

(a) Form GGG; and (b) Form HHH.

4. Repeal of Chief Registrar’s Circular and certain paragraphs in Chief Registrar’s Circulars dealing with Regulation 68

4.1. Paragraph 2.2 and 2.4 of Chief Registrar’s Circular No. 24 of 2003 is hereby repealed;

4.2. Paragraph 2.3 of Chief Registrar’s Circular No. 12 of 2004 is hereby repealed;

4.3. Chief Registrars Circular No. 15 of 2004 is hereby repealed.

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5. Implementation of amended regulations

The amended regulations must be applied with only in respect of deeds lodged after the date of commencement thereof.


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LODGEMENT OF RATES CLEARANCE CERTIFICATES IN TERMS OF THE LOCAL GOVERNMENT: MUNICIPAL SYSTEMS ACT, 2000 (ACT NO.32 OF 2000)

1. A prescribed certificate shall, in terms of section 118(1A) of the Local Government: Municipal Systems Act, 2000 (Act No.32 of 2000), be valid for a period of 120 days from date of issue.

2. Registrars of Deeds are advised to accept for registration purposes a prescribed certificate of which the validity date is a date more than 120 days from the date of issue. Such later date must be regarded as the date of expiry of the certificate.

3. This Circular must be read in conjunction with CRC 10/2004.


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CROSS-BOUNDARY MUNICIPALITIES LAWS REPEAL AND RELATED MATTERS ACT NO.23 OF 2005


The Cross-Boundary Municipalities Laws Repeal and Related Matters Act, 2005 (Act No. 23 of 2005), herein after referred to as the Act, shall come into operation on a date to be fixed by the President by proclamation in the Gazette. However, sections 2(3), 4(d) and 5 of the Act must be regarded as having come into operation on 23 December 2005 (section 6(2) of the Act).


The purpose of the Act, amongst other things, is to provide for consequential matters as a result of the re-alignment of former cross-boundary municipalities and the re-determination of the geographical areas of provinces.


3.1. TRANSITIONAL ARRANGEMENTS REGARDING THE TRANSFER OF ASSETS AND LIABILITIES

3.1.1. Where a particular area is relocated from one province (the releasing province) to another province (the receiving province) at the commencement of section 2 to 4 of the Constitution Twelfth Amendment Act, 2005, any asset, right or liability associated or connected with the exercise of such function or the delivery of such service vests in the provincial government of the receiving province (section 5(1)(b) of the Act).

3.1.2. In terms of section 5(5)(a) of the Act a Registrar of Deeds must, upon the lodgement of a certificate signed by both the premier of the releasing province and the premier of the receiving province, effect such entries and endorsements in or on any relevant register, title deed or other document as are necessary in order to reflect the vesting of immovable property in the name of the provincial government of the receiving province.

3.2. ENDORSEMENT OF TITLE DEEDS

3.2.1. Although section 5(5) of the Act is silent on the lodgement of an application and the relevant title deed/s, the vesting of assets, rights and liabilities referred to in section 5(1) must be given effect to only when an application and the relevant title deed/s are lodged. They must be accompanied by a certificate, signed by both the premier of the releasing province and the premier of the receiving province, to the effect that the provisions of any law in connection with the change of ownership in the land in consequence of the vesting have been complied with.

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3.2.2. The relevant title deed/s must be endorsed along the following lines:

“Endorsement in terms of section 5(5)(a) of Act No.23 of 2005 The within-mentioned *asset/right/liability vests, in terms of section 5(1)(a) of Act No. 23 of 2005, in the **



* Omit whichever is inapplicable ** Here insert the name of the Provincial Government of the Receiving Province

3.2.3. Examiners should take note that no act of registration shall be permissible unless and until the relevant title deed/s is/are endorsed regarding the vesting referred to in paragraph 3.2.1. supra.


No transfer duty, stamp duty or office fees shall be payable in respect of any Act of registration referred to in paragraph 3 above (section 5(5)(b) of the Act).


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LOCAL GOVERNMENT: MUNICIPAL PROPERTY RATES ACT,2004 (ACT NO. 6 OF 2004)


The Local Government: Municipal Property Rates Act, 2004 (Act No. 6 of 2004), herein after referred to as the Act, came into operation on 2 July 2005 (see notice number R.28, 2005 in Government Gazette Number 27720, dated 29 June 2005).


The purpose of the Act is, amongst other things, to regulate the power of a municipality to impose rates on property.


3.1 DEFINITION OF PROPERTY

3.1.1 “Property”, in terms of section 1 of the Act, means—

(a) immovable property registered in the name of a person, including, in the case of a sectional title scheme, a sectional title unit registered in the name of a person;

(b) a right registered against immovable property in the name of a person, excluding a mortgage bond registered against the property;

(c) a land tenure right registered in the name of a person or granted to a person in terms of legislation; or

(d) public service infrastructure.

3.2 LODGEMENT OF RATES CLEARANCE CERTIFICATE WITH THE REGISTRATION OF A TRANSFER OF PROPERTY

3.2.1 In terms of section 3 of the Act a municipality must adopt a policy on levying rates. Such policy takes effect on the effective date of the first valuation roll prepared by the municipality in terms of the Act. The Department of Provincial and Local Government has agreed that a municipality has to notify all registrars of deeds of the date of the implementation of such municipality’s valuation roll. 3.2.2 On receipt of a notice by a municipality, as referred to in paragraph 3.2.1 supra, a registrar of deeds must call for rates clearance certificates with the registration of the transfer of all properties (including sectional title units / exclusive use areas) registered within the jurisdiction of such municipality.

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3.2.3 Until a municipality prepares a valuation roll in terms of the Act it may continue to use a valuation roll that was in force before the commencement of the Act (section 89(1)). Section 89(3), however, provides for the lapsing of section 89(1) four years from the commencement of the Act.

3.2 4 In view of the provisions of section 89(3) of the Act registrars of deeds are compelled to call for rates clearance certificates with the registration of the transfer of all properties as from 2 July 2009, regardless of whether a notice referred to in paragraph

3.2.2 has been received or not.

3.3. LODGEMENT OF RATES CLEARANCE CERTIFICATE WITH THE REGISTRATION OF A CESSION OF A RIGHT REGISTERED AGAINST IMMOVABLE PROPERTY

3.3.1 Paragraph (b) of the definition of “Property” refers to a right registered against immovable property. A registrar of deeds can therefore only insist on the production of a rates clearance certificate with the registration of a cession of an already registered right over immovable property. A rates clearance certificate cannot be called for with the registration of a creation of a right.


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CIVIL UNION ACT NO. 17 OF 2006


The Civil Union Act, 2006 (Act No. 17 of 2006), hereinafter referred to as the Act, came into operation on 30 November 2006 (see notice number 1208 in Government Gazette number 29441 dated 30 November 2006).


The purpose of the Act is to provide for the solemnisation of civil unions, by way of either a marriage or civil partnership; the legal consequences of civil unions; and to provide for matters incidental thereto (pre-amble of the Act).

3. CIVIL UNION AND CIVIL UNION PARTNER AS DEFINED IN THE ACT

3.1. A “civil union”, in terms of section 1 of the Act, means “the voluntary union of two persons who are both 18 years of age or older, which is solemnised and registered by way of either a marriage or a civil partnership, in accordance with the procedures prescribed in this Act, to the exclusion, while it lasts, of all others”.

3.2. A “civil union partner”, means “a spouse in a marriage or a partner in a civil partnership, as the case may be, concluded in terms of this Act”.

4. LEGAL CONSEQUENCES OF A CIVIL UNION

4.1. The legal consequences of a marriage contemplated in the Marriage Act No.25 of 1961 apply, with such changes as may be required by the context, to a civil union (section 13(1) of the Act).

4.2. With the exception of the Marriage Act, 1961 and the Customary Marriages Act No. 120 of 1998, any reference to —

(a) marriage in any other law, including the common law, includes, with such changes as may be required by the context, a civil union; and

(b) husband, wife or spouse in any other law, including the common law includes a civil union partner (section 13(2) of the Act).

5. IMPACT OF PROVISIONS OF THE ACT ON THE DEEDS REGISTRATION PROCEDURES

5.1. The Act does not have any impact on the deeds registration procedures. All the provisions of the Deeds Registries Act No. 47 of 1937 and the Sectional Titles Act No. 95 of 1986 can therefore be applied to civil unions and civil union partners.

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5.2. The Act does also not have any impact on the Matrimonial Property Act No. 88 of 1984. The provisions of the Matrimonial Property Act, 1984 are therefore applicable in exactly the same manner to the matrimonial property system of persons joined in a civil union, as it is applicable to the matrimonial property system of persons married in terms of the Marriage Act, 1961.

5.3. In view of the abovementioned the following must be noted with regard to registration procedures in a deeds registry:

5.3.1. all the provisions of the Deeds Registries Act No.47 of 1937 and the Sectional Titles Act No. 95 of 1986 are applicable to civil unions and civil union partners;

5.3.2. the same practices and procedures applicable to persons married in community/ out of community of property in terms of the Marriage Act, 1961, are applicable to partners in a civil union (i.e. vesting of property). However, where a civil partnership instead of a marriage, as referred to in the definition of ‘civil union’ in section 1 of the Act, is registered, the parties must be described as follows:

- in instances where no antenuptial contract has been registered: ABC Identity Number ...........

and

XYZ Identity Number ............ partners in a civil partnership in community of property registered in terms of the Civil Union Act No. 17 of 2006

- in instances where an antenuptial contract has been registered: ABC Identity Number............. partner in a civil partnership out of community of property registered in terms of the Civil Union Act No. 17 of 2006

5.3.3. the same practices and procedures applicable to the registration of antenuptial contracts of persons married in terms of the Marriage Act, 1961, apply to the registration of antenuptial contracts of persons joined in a civil union; and

5.3.4. the same practices and procedures applicable to the lodgement of marriage certificates and divorce orders of persons married in terms of the Marriage Act, 1961, apply to persons joined in a civil union.


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FURTHER EDUCATION AND TRAINING COLLEGES ACT, 2006 (ACT NO.16 OF 2006)


The Further Education and Training Act, 2006 (Act No. 16 of 2006), herein after referred to as the Act, came into operation on 11 December 2006 (see notice number 1274 in Government Gazette number 29489 dated 11 December 2006).


The purpose of the Act, amongst other things, is to provide for the establishment, governance and funding of public further education and training colleges; to provide for transitional arrangements; and to provide for matters connected therewith.


3.1 Establishment of public college:

3.1.1 The Member of the Executive Council responsible for education in a province, (herein after referred to as the MEC), may, by notice in the Gazette, establish a public college (section 3(1) of the Act). Every public college is a juristic person (section 3(2) of the Act).

3.1.2. A public college established in terms of section 3(1) of the Act must, in deeds and documents lodged for registration, be described along the following lines: “‘ABC’ public college (established by section 3 (1) of Act No. 16 of 2006)”

3.1.3. A public college may not, without the concurrence of the MEC, dispose of or alienate any movable or immovable property acquired with the financial assistance of the State, or grant to any person any real right or servitude over such movable or immovable property (section 3(3) of the Act).

3.1.4. The MEC may, in terms of section 3(4)(a) of the Act, determine that certain categories of assets below a certain value may be alienated without his or her concurrence. The value of the assets contemplated in section 3(4)(a) must be published in the Gazette (section 3(4)(b)).

3.1.5. The assets of a public college may not, in terms of section 3(6) of the Act, be attached as a result of any legal action taken against the college.

3.2. Declaration of Institutions as public college:

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3.2.1. The MEC may, by notice in the Gazette, declare any institution providing further education and training as a public college (section 4(1) of the Act). The notice contemplated in section 4(1) must determine the date on which the institution becomes a public college (section 4(2)(a)).

3.2.2. A public college declared in terms of section 4(1) of the Act must, in deeds and documents lodged for registration, be described along the following lines:

“‘ABC’ public college (declared by section 4(1) of Act No. 16 of 2006)’

3.3. Consequences of declaration as public college:

3.3.1. As from the date of declaration of an institution as a public college as published by notice in the Gazette, the assets, liabilities, rights and obligations of such institution vest in the public college (section 5 (1)(b) of the Act).

3.3.2. Immovable property vesting in a public college in terms of section 5(1)(b) of the Act, must, subject to the concurrence of the Minister of Finance, be transferred into the name of such public college (section 5(2)(a)). Such transfer must be affected by means of an endorsement in terms of the provision of section 5(3) of the Act.

3.3.3. The transfer of the immovable property must be made subject to any existing right, encumbrance or trust on or over that property (section 5(2)(a)).

3.4. Endorsement of title deeds upon declaration of institution as public college:

3.4.1. A Registrar of Deeds must, upon application and submission of the relevant title deed/s by the public college concerned, together with the consent of the Minister of Finance, effect such endorsements on the title deed/s and such entries in his/her registers as are necessary in order to register the vesting as referred to in section 5(1) (b) of the Act (section 5(3) of the Act).

3.4.2. The application must be filed under a T/K/BC code, as the case may be, and the title deed/s must be endorsed along the following lines:

“Endorsement in terms of section 5(3) of Act No. 16 of 2006 The within-mentioned*asset/right/liability vests, as from................in**................., in terms of section 5(1)(b) of Act No.16 of 2006.

Application filed with *T/K/BC


* Omit whichever is inapplicable ** Here insert the name of the public college

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3.5. Merger of public colleges:

3.5.1. The MEC may, by notice in the Gazette, merge two or more public colleges into a single public college (section 6 (1) of the Act).

3.5.2. As from the date of merge of two or more public colleges, as published by notice in the Gazette, the assets, liabilities, rights and obligations of the two or more public colleges vest in the single public college.

3.5.3. The provisions of section 5(1)(b), 5(2) and 5(3) of the Act apply with the necessary changes required by the context to a merger of public colleges (section 6(4)). In this regard see the provisions discussed under paragraphs 3.3 and 3.4.1 above.

3.6. Endorsement of title deeds upon merger of public colleges:

3.6.1. The Registrar of Deeds must, upon application and submission of the relevant title deed/s by the public college concerned, effect such endorsements on the title deed/s and such entries in his/her registers as are necessary in order to register the vesting referred to in paragraph 3.5.2 above.

3.6.2. The application must be filed under a T/K/BC code, as the case may be, and the title deed/s must be endorsed along the following lines:

“Endorsement in terms of section 6(4) of Act No. 16 of 2006 The within-mentioned asset/right/liability vests, as from............in **..................in terms of section 6(4) of Act No.16 of 2006.

Application filed with T/K/BC ________________________ _______________________ Date Registrar of Deeds” .


3.7. Closure of a public college:

3.7.1. The MEC may, by notice in a Gazette, close a public college (section 8(1) of the Act).

3.7.2. After closure of a public college, all the assets and liabilities of such closed public college shall be dealt with by the MEC according to law, and any assets remaining after all liabilities have been paid, shall vest in the MEC, (sections 8 (3)(a) and 8(3)(b) of the Act). Registration of assets must, notwithstanding the wording of section 8(3) (b), be made in favour of the Province concerned.

3.7.3. The provisions of sections 5(2) and 5(3) of the Act apply with the necessary changes required by the context to a closure of public colleges. In this regard see the provisions discussed under paragraphs 3.3 and 3.4.1 supra.

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3.8. Endorsement of title deeds upon closure of public college:

3.8.1. A Registrar of Deeds must, upon application and submission of the relevant title deeds by the MEC concerned, effect such endorsements on the title deeds and such entries in his/her registers as are necessary in order to register the closure referred to in paragraph 3.7.1 above. 3.8.2. The application must be filed under a T/K/BC code, as the case may be, and the title deed/s must be endorsed along the following lines:

“Endorsement In terms of section 8(1) of Act No. 16 of 2006 The within-mentioned *asset/right/liability now vests in the **.........................in terms of section 8(1) read with section 8(3)(b) of Act No.16 of 2006.

Application filed with *T/K/BC



3.8.3. Examiners should take note that no act of registration shall be permissible unless and until the relevant title deed/s is/are endorsed regarding the vesting referred to in paragraphs 3.3.1, 3.5.2 and 3.7.2. above.

3.9. Change of name of a public college:

3.9.1. The council of a public college may, with the approval of the MEC and by notice in a Gazette, change the name of a public college (section 47 of the Act).

3.9.2. Where a change of name has taken place the matter must be dealt with in terms of section 93 of the Deeds Registries Act, 1937 (Act No.47 of 1937).

3.10 Existing public further education and training institutions, structures and bodies:

The public further education and training institutions listed in Schedule 2 of the Act, continue to exist and are deemed to be public colleges for the purposes of this Act (section 53(1) of the Act).

4. WITHDRAWAL OF PREVIOUS CIRCULAR

4.1. Chief Registrar’s Circular No.33 of 1996 is hereby withdrawn due to the repeal of ‘The Further Education and Training Act, 1998 (Act No. 98 of 1998)’. by section 58(1) of the Act.

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4.2. Anything done under any provision of Act No. 98 of 1998 must be regarded as having been done under the corresponding provision of the Act.

5. TRANSFER DUTY AND OFFICE FEES

All acts of registration in terms of the Act are exempt from the payment of transfer duty or any other duty or cost, but not exempt from registration fees (section 5 (2)(a) read with section 5 (2) (b) of the Act).


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NATIONAL HERITAGE RESOURCES ACT, 1999 (ACT NO.25 OF 1999)


The National Heritage Resources Act, 1999 (Act No. 25 of 1999), herein after referred to as the Act, came into operation 1 April 2000.


The purpose of the Act is, amongst other things, to introduce an integrated and interactive system for the management of the national heritage resources; to establish the South African Heritage Resources Agency; and to provide for matters connected therewith.

3. IMPACT OF ACT ON DEEDS REGISTRATION PROCEDURES

3.1. Establishment of South African Heritage Resources Agency and its Council:

3.1.1. The South African Heritage Resources Agency (herein after referred to as “SAHRA”, is established in terms of section 11 of the Act. SAHRA is a body corporate which is capable of suing and being sued in its corporate name.

3.2 Description of South African Heritage Resources Agency in deeds and documents: SAHRA shall in deeds and documents be described as “The South African Heritage Resources Agency, established in terms of section 11 of Act No. 25 of 1999”.

3.3 Notice relating to the protection of heritage resources:

3.3.1. Section 9(10) of the Act stipulates that when—

(a) a place has been declared a national heritage site or a provincial heritage site under section 27 of the Act;

(b) a place has been designated a protected area under section 28 of the Act;

(c) a place has been provisionally protected for a period longer than six months under section 29 of the Act;

(d) a place has been entered in a heritage register under section 30 of the Act; (e) a place has been included in a heritage area under section 31 of the Act; (f) a heritage agreement has been entered into in respect of a place for a period exceeding six months under section 42 of the Act;

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(g) an order of no development under section 51(8) has been made in respect of a place,

the Registrar of Deeds in whose deeds registry the land in question is registered, must be furnished by the heritage resources authority concerned with—.

(a) a copy of the notice in the Gazette or the Provincial Gazette;

(b) the particulars of the protection;

(c) a copy of any survey, including any diagram or plan, made under section 25 (2) (d); and

(d) a copy of the relevant order of no development or of a heritage agreement.

3.3.2. The Registrar of Deeds must, in terms of section 9(11) of the Act—

(a) endorse the title deed of the place in question filed in the deeds office;

(b) make an entry in the appropriate registers and upon the owner’s title deed as soon as it is lodged in the deeds office, relating to the particulars furnished in terms of subsection (10);

(c) identify the area of the protected place; and

(d) clearly state the particulars of the protection order or heritage agreement

(see paragraph 3.5.1 with regard to the endorsement of title deeds).

3.4. Withdrawal of Notice relating to the protection of heritage resources:

3.4.1. The Registrar of Deeds must, in terms of section 9(13) of the Act, be furnished by the heritage resources authority concerned with a copy of a notice or order in the following instances:

(a) when any notice is amended or withdrawn under section 27 (7) of the Act;

(b) when the designation of a protected area is withdrawn under section 28 (1) or (2) of the Act;

(c) when a provisional protection for a period longer than six months is withdrawn under section 29 (1 )(b) or section 29 (2)(b) of the Act;

(d) when an entry in a heritage register is amended or deleted;

(e) when a place is excluded from a heritage area; or

(f) when an order of no development is amended or repealed under section 51(11).

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3.4.2. The Registrar of Deeds must make the necessary endorsement upon the relevant title deeds and in the appropriate registers (section 9 (13)(b) of the Act).

(see paragraph 3.5.2 with regard to the endorsement of title deeds).

3.5. Endorsement of title deeds:

3.5.1. Endorsement in terms of section 9(11) of the Act:

3.5.1.1. In order to comply with the provisions of section 9(11) of the Act, the Registrar of Deeds must, upon receipt of the documentation referred to in section 9(10) (see paragraph 3.3.1 above), note a caveat the property must be endorsed whenever it is lodged for an act of registration. A caveat in the abovementioned regard must contain clear instructions with regard to the endorsement of a title deed of the property concerned.

3.5.1.2. Whenever the relevant title deed/s have been lodged for whatever purpose, the same must be endorsed along the following lines:

“Endorsement in terms of section 9(11) of Act No.25 of 1999: The within-mentioned property has, by notice in **Government / Provincial Gazette No.

• beendeclaredanationalheritagesite/provincialheritagesiteundersection27; • beendesignatedaprotectedareaundersection28; • beenprovisionallyprotectedforaperiodlongerthansixmonthsundersection29; • beenenteredinaheritageregisterundersection30; • beenincludedinaheritageareaundersection31;

OR By virtue of **Government/Provincial Gazette No.,

**

• a heritage agreement has been entered into for a period exceeding six months under section 42; • anorderfornodevelopmentundersection51(8)hasbeenmade


* Insert number of relevant Government/Provincial Gazette ** Omit whichever is inapplicable

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3.5.2. Endorsement In terms of section 9(13)(b) of the Act:

3.5.2.1. In compliance to section 9(13)(b) of the Act, the Registrar of Deeds must, upon receipt of the documentation referred to in section 9(13)(a) (see paragraph 3.4.1. above), note a caveat against the immovable property concerned to the effect that the title deed of the property must be endorsed whenever it is lodged for an act of registration. A caveat in the abovementioned regard must contain clear instructions with regard to the endorsement of a title deed of the property concerned.

3.5.2.2. Whenever the relevant title deed/s have been lodged for whatever purpose, the same must be endorsed along the following lines:

“Endorsement In terms of section 9(13)(b) of Act No. 25 of 1999: By virtue of **Notice/Order/Government/Provincial Gazette *No., ** The notice as published in the Gazette/Provincial Gazette is amended or withdrawn under section 27 (7);

• thedesignationofaprotectedareaiswithdrawnundersection28(1)or(2); • aprovisionalprotectionforaperiodlongerthansixmonthsiswithdrawn under section 29 (1) (b) or (2) (b); • anentityinaheritageregisterisamendedordeleted; • aplaceisexcludedfromaheritagearea;or • anorderofnodevelopmentisamendedorrepealedundersection51(11),


* Insert number of relevant Notice/Order/Government/Provincial Gazette ** Omit whichever is inapplicable

3.6. Transfer or subdivision of heritage sites:

3.6.1. A Registrar of Deeds must, in terms of section 9(9) of the Act, inform SAHRA or the relevant heritage resources authority (in a notice as prescribed) of the particulars of a registration of transfer or subdivision of any place which is formally protected by such heritage resources authority in terms of Part 1 of Chapter 2 of this Act, within 14 days of such registration.

3.6.2. The Notice referred to in section 9(9) of the Act is not prescribed and a Notice on the following lines may be drafted:

NOTICE IN TERMS OF SECTION 9(9) OF THE NATIONAL HERITAGE RESOURCES ACT. NO.25 OF 1999:

The following property which is formally protected by *.........................in terms of Part 1 of Chapter 2 of Act No. 25 of 1999, has been **transferred / subdivided. Details of the abovementioned **transfer / subdivision is as follows:

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• withtheregistrationofadeedoftransferrefertothenames,IDnumbersandmarital status of the transferee/transferor, as well as the new title reference.

• withtheregistrationofasubdivisionrefertothenameandextentofthenewportions after subdivision, as well as the new title references.

________________________ _______________________

Date Registrar of Deeds” .

* Insert name of relevant heritage resource authority ** Omit whichever is inapplicable

3.7. Abolishment of National Monuments Council:

3.7.1. The National Monuments Council, established by section 2 of the National Monuments Act, 1969 (Act No. 28 of 1969), is abolished and all its assets, rights, liabilities and obligations shall devolve upon SAHRA without formal transfer and without payment of any duties, taxes, fees or other charges (section 58(2) of the Act).

3.7.2. The Registrar of Deeds must, on submission of the title deed and on application by the authority concerned, endorse the relevant title deeds to reflect the transfer of the assets, rights, liabilities and obligations of the National Monuments council to SAHRA.

3.7.3. An endorsement in the above regard must be along the following lines: “Endorsement in terms of section 56(2) of Act No.25 of 1999: The transferee has been abolished in terms of section 58(2) of Act No.25 of 1999, and the asset/right held hereunder, now vests in the South African Heritage Resources Agency, established in terms of section 11 of Act No.25 of 1999. Vide application filed with T......................................


* Omit whichever is inapplicable


No registration fee is payable with regard to effecting the endorsement referred to in paragraphs 3.5.1, 3.5.2, 3.6 and 3.7


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COMMENCEMENT OF CERTAIN SECTIONS OF THE CHILDREN’S ACT 2005 (ACT NO.38 OF 2005)


Certain sections of the Children’s Act, 2005 (Act No. 38 of 2005), hereinafter referred to as the Act came into operation on 1 July 2007 (see Government Gazette number 8706 dated 29 June 2007).


To give effect to certain rights of children as contained in the Constitution and to implement legislation applicable to children.

3. AGE OF MAJORITY

A child, whether male of female, becomes a major upon reaching the age of eighteen years (section 17 of the Act).

4. IMPACT OF ACT ON DEEDS OFFICE OPERATIONS

It is a cardinal principle of South African Law that legislation does not operate retrospectively. Thus all transactions entered into before the coming into operation of the Act will continue to be governed by the law as it was when the said transactions were entered into. Thus assistance by a guardian or the consent of the Master or the Court should be insisted upon in respect registrations pursuant to contracts entered into before 1 July 2007 by or on behalf of persons who were below 21 years on the said date.


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CESSION OF BONDS FOR SECURITISATION PURPOSES

1. Pending a proposed amendment to the Deeds Registries Act, 1937 (Act No. 47 of 1937) (herein after referred to as “the Act”), the provisions of regulation 63(2) which provides for the lodgment of the client’s copy of a deed, need not be complied with in instances where a mortgage bond is being ceded for securitisation purposes.

2. Conveyancers acting on behalf of holders of bonds that are to be ceded for securitisation purposes, have to make detailed arrangements regarding the implementation of this Circular with the Registrar of Deeds concerned. However, for purposes of uniformity it is proposed that the following procedure be followed:

2.1. Conveyancers acting on behalf of the holders of bonds that are to be ceded for securitisation purposes, shall prior to lodgement obtain copies of the mortgage bonds from the Registrar of Deeds concerned. Such copies shall be issued and endorsed “Certified a true copy of the registry duplicate and issued for securitisation purposes”. These endorsements shall be signed by the Registrar of Deeds on the date of the registration of the cession for securitisation purposes.

2.2. A request to the Registrar of Deeds for the issuing of a copy of a mortgage bond referred to in paragraph 2.1 above, shall be in a form similar to that in Annexure A hereto. The said copies shall be provided to conveyancers prior to lodgement to enable the conveyancers to prepare the cessions and cession endorsements referred to in paragraph 2.4.3 hereof.

2.3. The Conveyancer’s account shall be debited with the amount referred to in Item 3 of Regulation 84 for each copy issued.

2.4. The following documentation must be lodged in one cover:

2.4.1. The cession of the mortgage bond drafted in accordance with Form MM;

2.4.2. An affidavit/declaration by the bondholder that the cession of the bond is required for securitisation purposes and that the client’s copy of the bond is unavailable;

2.4.3. The copy of the mortgage bond issued for securitisation purposes on which a pre- prepared cession endorsement has been affixed by the Conveyancer concerned; and a caveat drafted in a form acceptable to the Registrar of Deeds for noting in terms of paragraph 3.1 hereof.

3. The Registrar of Deeds shall after registration of the cession ensure that:

3.1 A caveat is noted in the deeds registry records indicating that the client’s copy of the bond be endorsed to the effect that it has been ceded, if and when such a bond is in future lodged at the Registrar’s office for whatever reason; and

3.2 The copy of the mortgage bond issued for securitisation purposes is destroyed before delivery.


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ANNEXURE A

APPLICATION FOR COPY OF MORTGAGE BOND FOR SECURITISATION PURPOSES

DEEDS OFFICE

OFFICE USE ONLY

DATE: …………………..…….

APP/NO: ……………………...

DATE OF APLICATION:

ACCOUNT NUMBER:

FILE NUMBER:

NATURE OF DOCUMENT

BOND

DOCUMENT NO:

MIRCOR REF:

PROPERTY DESCRIPTION

NAME OF APPLICANT

PHONE NO:

CELL NO:

AMOUNT DUE R30.00 CASH ACCOUNT

CLIENTSIGNATURE: ………………………………………………………………………………………

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CHANGE OF NAME OF TRANSNET PENSION FUND IN TERMS OF THE TRANSNET PENSION FUND AMENDMENT ACT, 2007 (ACT NO.6 OF 2007)


The Transnet Pension Fund Amendment Act, 2007 (Act No. 6 of 2007), herein after referred to as the Act, is deemed to have come into operation on 11 November 2005 (see notice number 30270 in Government Gazette number 831, dated 7 September 2007).


The purpose of the Act is, amongst other things, to provide for the continued existence of the “Transnet Pension Fund” under the new name of the “Transport Pension Fund”.

3. CONTINUED EXISTENCE AND CHANGE OF NAME OF TRANSNET PENSION FUND

3.1. In terms of section 2(1) of the Act the fund that immediately before Fund”, shall continue to exist as ajuristic person under the name of the “Transport Pension Fund”.

3.2. Any reference to the “Transnet Pension Fund” in any law shall be construed as a reference to the “Transport Pension Fund” (section 2(2) of the Act).

4. ENDORSEMENT OF TITLE DEEDS TO REFLECT CHANGE OF NAME

4.1. The endorsing of title deeds to reflect the change of name must be given effect to as and when the relevant title deed/s is/are lodged for an act of registration.

4.2. Relevant deeds must be endorsed along the following lines: “Endorsement in terms of section 3(1)(v) of Act No.47 of 1937 In terms of section 2(1) of the Transnet Pension fund Amendment Act No. 6 of 2007, the name of the within mentioned transferee/ mortgagee/ cessionary* has, with effect from 11 November 2005, changed to Transport Pension Fund ________________________ _______________________ Date Registrar of Deeds” .


4.3. No act of registration shall be permissible unless the relevant title deed/s is/are endorsed regarding the change of name referred to in paragraph 4.2.

5. OFFICE FEES

No office fees are payable in respect of an endorsement referred to in paragraph 4.2 above.


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CHILDREN’S ACT, 2005 (ACT NO. 38 OF 2005)

1. DATE OF COMING INTO OPERATION

The Children’s Act, 2005 (Act No. 38 of 2005), hereinafter referred to as “the Act”, shall come into operation on a date to be fixed by the President by proclamation in the Gazette. However, for purposes of this Circular sections 17 and 18 must be regarded as having come into operation on 1 July 2007 (see sections 17 and 18 of the Act).


The purpose of the Act, amongst other things, is to define parental responsibilities and rights, and to provide for matters incidental thereto.


The Act has repealed the Guardianship Act, 1993 (Act No. 192 of 1993). Chief Registrar’s Circular No. 2 of 1994 is therefore hereby withdrawn.

4. IMPACT OF CERTAIN PROVISIONS OF THE ACT ON DEEDS REGISTIES AND REGISTRATION PROCEDURES

4.1. In terms of section 17 of the Act a child becomes a major upon reaching the age of 18 years.

4.2. A parent or other person who acts as guardian of a child must, in terms of section 18(3)(b) of the Act, and subject to section 18(4) and 18(5) of the Act, assist or represent a child in administrative, contractual and other legal mailers.

4.3. A parent or other person who acts as guardian of a child must, in terms of section 18(3)(c) of the Act, and subject to section 18(4) and 18(5) of the Act, give or refuse any consent required by law in respect of a child including, amongst other things:

• consenttoachild’smarriage(section18(3)(c)(i);and

• consenttothealienationorencumbranceofanyimmovablepropertyofachild(section 18(3)(c)(v)).

4.4. Whenever more than one person has guardianship of a child, each one of them is competent, subject to section 18(5) of the Act or any other law or any order of a competent court to the contrary, to exercise independently and without the consent of the other, any right or responsibility arising from such guardianship (section 18(4) of the Act). 4.5. Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child is necessary in respect of matters set out in section 18(3)(c) of the Act (section 18(5) of the Act).

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4.6. The effect of section 18(4) of the Act is that a minor (person under the age of 18 years) may, subject to the provisions of section 18(5) of the Act or any other law or any order of a competent court to the contrary, enter into an antenuptial contract with the consent of any one person that has guardianship over such minor.

4.7. The effect of section 18(5) of the Act is that a minor (person under the age of 18 years) may, unless a competent court orders otherwise, alienate or encumber his/her immovable property with the consent of all the persons that have guardianship of such child.

4.8. The provisions of sections 17 and 18 came into operation on 1 July 2007 and transactions entered into prior to this date will still be governed by the law as it existed before such date.


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BROADBAND INFRACO ACT, 2007 (ACT NO. 33 OF 2007)


The Broadband Infraco Act, 2007 (Act No. 33 of 2007), herein after referred to as the Act, shall come into operation on a date to be fixed by the President by proclamation in the Gazette (section 12 of the Act).


The purpose of the Act is, amongst others, to provide for servitudes and additional rights in favour of Broadband Infraco (Pty) Ltd; to provide for the conversion of Broadband Infraco (Pty) Ltd into a public company; and to provide for matters connected therewith.


3.1. DEFINITIONS:

3.1.1. ‘Infraco’, in terms of section 1 of the Act, means Broadband Infraco (Proprietary) Limited and, with effect from the conversion date, ‘Broadband Infraco Limited’.

3.1.2. In terms of section 6 (1) of the Act the word ‘servitude’ means any servitude, lease, right of use or other real right in or over land in favour of Eskom and Transnet, which existed immediately prior to the commencement of this Act, for the conveyance or provision of electricity or electronic communications, for pipelines, railways, transport or electrical substations or for the construction, use and maintenance of electronic communications facilities or networks.

3.2. EXTENSION OF SERVITUDE:

3.2.1. Section 6(2)(a) of the Act provides that every servitude, as referred to in section 6(1), shall be extended to include the additional right to enter and use the land to which such servitude relates, for purposes of—

(i) using and maintaining existing electronic communications facilities and networks; and

(ii) constructing, erecting and maintaining further electronic communications facilities and networks, in order to provide electronic communications network services and electronic communications services. 3.2.2. Eskom and Transnet must, in terms of section 6(2)(b) of the Act, allow Infraco in respect of any servitude to-

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(a) utilise such servitude in respect of the additional right referred to in section 6(2) (a) on such terms and conditions as may be agreed upon between Infraco, Eskom and Transnet, and in the absence of an agreement, on such terms and conditions as the Minister of Public Enterprises may determine: and

(b) utilise such servitude in respect of that additional right in favour of Infraco to provide for electronic communications network services and electronic communications services in order to fulfil its objects and to exercise its powers under this Act and its founding documents.

3.3. LODGEMENT OF DEEDS AND DOCUMENTATION:

3.3.1. In terms of section 6(3)(e) of the Act the Registrar of Deeds must, upon the lodgement of the necessary deeds and documentation, make such entries and endorsements in or on any relevant register, title deed or other document in his/her registry, as may be necessary to give effect to section 6(2) of the Act.

3.3.2. The following title deeds and documentation must be lodged in order to provide for endorsement in terms of the provision of section 6(3)(e):

3.3.2.1. an application in terms of section 3(1)(v) of Act No.47 of 1937 for the endorsement of the relevant title deed/s. The said application must contain complete information regarding the extension of the servitude;

3.3.2.2. the title deed of the property together with the registered notarial deed of servitude / right of use / real right I lease and mortgage bond/s where applicable; and

3.3.2.3. the consent of the holders of mortgage bond/s registered over the relevant property.

3.4. ENDORSEMENT OF TITLE DEEDS:

3.4.1. The relevant deeds must be endorsed along the following lines:

Endorsement in terms of section 6(3)(e) of the Broadband Infraco Act No. 33 of 2007: “The within-mentioned *servitude / lease / right of use / real right, registered under **S / K L, has been extended, in terms of section 6(2)(a) of Act No.33 of 2007, to include the additional right to enter and use the land for the purposes of-

• usingandmaintainingexistingelectroniccommunicationsfacilitiesandnetworks; and • constructing, erecting and maintaining further electronic communications facilities and networks, in order to provide electronic communications network services and electronic communications services.

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*Eskom / Transnet must, in terms of section 6(2)(b) of Act No. 33 of 2007, allow Broadband Infraco (Pty) Ltd in respect of this *servitude / lease / right of use / real right to-

utilise such *servitude / lease / right of use / real right in respect of the additional right, referred to above, on such terms and conditions as may be agreed upon between Broadband Infraco (Pty) Ltd and ~Eskom / Transnet (in the absence of an agreement referred to above, the *servitude / lease / right of use / real right must be utilised on terms and conditions as the Minister of Public Enterprises may determine. Such terms and conditions must then be referred to in this endorsement); and

• utilisesuch*servitude/lease/rightofuse/realrightinrespectoftheadditionalright in favour of Broadband Infraco (Pty) Ltd to provide for electronic communications network services and electronic communications services in order to fulfil its objects and to exercise its powers under Act No. 33 of 2007 and its founding documents, ________________________ _______________________ Date Registrar of Deeds” .

* Omit whichever is inapplicable ** Insert number of registered deed

3.4.2. Examiners must note that the provision of section 6(2)(a) of the Act only relates to Eskom and Transnet servitudes that have been registered prior to the coming into operation of the Act (see the definition of ‘servitude’ in paragraph 3.1.2 infra).

3.4.3. Examiners must further note that ‘servitudes’ are only extended, in terms of section 6(2)(a) of the Act, to include the ‘additional right’ as provided for in section 6(2)(a) (i) and 6(2)(a)(ii) of the Act. A Registrar of Deeds, therefore, is not in a position to endorse such ‘servitudes’ to also include rights that are not being provided for in the Act.

4. OFFICE FEES AND TRANSFER DUTY

An office fee is payable and a transfer duty receipt must be lodged in respect of an endorsement referred to in paragraph 3.4.1.


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ASTRONOMY GEOGRAPHIC ADVANTAGE ACT, 2008 (ACT NO. 21 OF 2007


The Astronomy Geographic Advantage Act, 2007 (Act No.21 of 2007), herein after referred to as the Act, shall come into operation on a date to be determined by the President by proclamation in the Gazette (section 53 of the Act).


The purpose of the Act is, amongst other things, to provide for the preservation and protection of areas within the Republic that are uniquely suited for optical and radio astronomy; and to provide for matters connected therewith.


3.1. DECLARATION OF ASTRONOMY ADVANTAGE AREAS

3.1.1. The Minister responsible for science and technology may, in terms of sections 7(1) and 9(1) of the Act, declare a specific area as -

(i) a core astronomy advantage area; or (ii) part of an existing core astronomy advantage area; or (iii) a central astronomy advantage area; or (iv) part of an existing central astronomy advantage area.

3.1.2. The Minister may withdraw a declaration referred to in paragraph 3.1.1 by notice in the Gazette (sections 8 and 10 of the Act).

3.2. NOTIFICATION TO THE REGISTRAR OF DEEDS

3.2.1. The Minister must notify the Registrar of Deeds in writing whenever an area is declared as a core or central astronomy advantage area, or as part thereof, or whenever a declaration in respect thereof is withdrawn or altered (section 14(1)).

3.2.2. The abovementioned notification must include a description of the land involved and, if applicable, the terms and conditions that must be recorded in a notarial deed and registered against the title deed of the property (section 14(2) read with section 18(6) of the Act).

3.3. ENDORSEMENT OF TITLE DEEDS TO REFLECT DECLARATION, ALTERATION OR WITHDRAWAL AND REGISTRATION OF NOTARIAL DEED 3.3.1. The Registrar of Deeds must, on receipt of a notification referred to in paragraph 3.2.1 above, record any declaration, withdrawal or alteration in the relevant registers and documents in terms of section 3(1)(w) of Act No.47 of 1937 (section 14(3)).

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3.3.2. In compliance with the provisions of section 14(3) of the Act, the Registrar of Deeds must note a caveat against the immovable property concerned to the effect that the title deed of the property must be endorsed whenever it is lodged for an act of registration. A caveat in the abovementioned regard must contain clear instructions with regard to the endorsement of the title deed of the property concerned.

3.3.3. Whenever the relevant title deed/s has/have been lodged for whatever purpose, the same must be endorsed along the following lines:

“Endorsement in terms of section 14(3) of Act No. 21 of 2008: The within-mentioned property has, by notice issued by the Minister responsible for science and technology, been declared * a core astronomy advantage area / part of an existing core astronomy advantage area I a central astronomy advantage area I part of an existing central astronomy advantage area, subject to the conditions contained therein. - or The notice of declaration as * a core astronomy advantage area / part of an existing core astronomy Advantage area / a central astronomy advantage area / part of an existing central astronomy advantage area, on the within-mentioned property, has by virtue of a notice in Gazette No ***…*been amended / withdrawn.


* Omit whichever is inapplicable ** State terms and conditions contained In Notice *** Insert number of relevant Government/Provincial Gazelle

3.3.4. In instances where the relevant title deed of the immovable property is lodged for purposes of the registration of a notarial deed as contemplated in section 18(6) of the Act, the said title deed should not be endorsed re the endorsement referred to in paragraph 3.3.3 above. Registration of the notarial deed and the recordal thereof against the title deed is sufficient for the purposes of complying with the Act.

3.3.5. Once the endorsement referred to in paragraph 3.3.3 has been effected or the notarial deed contemplated in section 18(6) of the Act registered, then the caveat that had been noted against the property must be purged.

4. REGISTRATION FEES No registration fee is payable with regard to effecting the endorsement referred to in paragraph 3.3.3.


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AGRICULTURAL DEBT MANAGEMENT REPEAL ACT, 2008 (ACT NO. 15 OF 2008)

1. DATE OF COMING INTO OPERATION

The Agricultural Debt Management Repeal Act, 2008 (Act No. 15 of 2008) (hereinafter referred to as the Act), shall be deemed to have come into operation on 1 April 2008 (see Government Gazette number 31449, dated 19 September 2008).

2. REPEAL OF AGRICULTURAL DEBT MANAGEMENT ACT, 2001 (ACT NO. 45 OF 2001), WITH SAVING PROVISION

The Act provides for the repeal of Act No. 45 of 2001. However, section 2 of the Act provides for sections 2, 7, 8(1), (2), and (3) and 9 of Act No.45 of 2001 to remain in force until all agreements referred to in the said Act have been terminated and the debt associated with those agreements have been recovered or otherwise extinguished.


3.1. This Circular must be read in conjunction with CRC 13 of 2003.

3.2. Examiners must note that, despite the repeal of the Agricultural Credit Act, 1966 (Act No. 28 of 1966), by section 10 of Act No.45 of 2001, as well as the repeal of Act No. 45 of 2001 by the Act, any mortgage bond, condition or restriction registered against immovable property on the date of commencement of the Act (1 April 2008), remains in force until all agreements referred to in Act No. 45 of 2001 have been terminated and the debt associated with those agreements have been recovered or otherwise extinguished (section 2(1) of the Act).

3.3. No further registrations in terms of the provisions of Act No. 45 of 2001 relating to new transactions, may be registered in a deeds registry.


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LODGEMENT OF RATES CLEARANCE CERTIFICATES IN TERMS OF THE LOCAL GOVERNMENT: MUNICIPAL SYSTEMS ACT, 2000 (ACT NO. 32 OF 2000)

1. AMENDMENT OF SECTION 118 OF THE ACT

1.1. Section 118 of the Act has been amended by section 19 of the Local Government Laws Amendment Act, 2008 (Act No. 19 of 2008) by the substitution in subsection (1A) for the expression “120 days” of the expression “60 days”. Act No. 19 of 2005 came into operation on 13 October 2008.

1.2. The effect of the amendment of section 118 is that, all prescribed certificates issued on or after 13 October 2008 shall be valid for a period of 60 days from date of issue.


2.1. This Circular must be read in conjunction with CRC 10 of 2004.

2.2. The period of 120 days, wherever it appears in CRC 10 of 2004, must be regarded as a period of 60 days with regard to prescribed certificates issued on or after 13 October 2008.


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CERTIFICATES IN TERMS OF ITEM 28(1) OF SCHEDULE 6 OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996 (ACT NO. 108 OF 1996)

1. Application of this Circular and repeal of CRC 14/2001 and CRC6/2008

New provisions relating to the issuing of Item 28(1) of Schedule 6 of the Constitution of The Republic of South Africa, 1996 (Act No. 108 of 1996), has been issued. Chief Registrar’s Circulars No. 14 of 2001 and No. 6 of 2008 are hereby withdrawn and substituted with this Circular.

2. Issuing of Item 28(1) Certificates

2.1. The Director General of the Department of Land Affairs (DG) has been accepted by the Minister for Agriculture and Land Affairs as a competent authority to sign certificates in terms of the provisions of Item 28(1), with effect from 10 September 2008.

2.2. Item 28 (1) certificates, issued (signed) by the DG, must be in the format of the copy which is attached hereto as Annexure A.

2.3. Examiners must note that Item 28(1) certificates already signed in accordance to the pro forma certificates agreed to during 1997 and 1999 (see Annexure B and C in Chief Registrar’s Circular No. 10 of 1999), must be accepted and not rejected.

2.4. Item 28(1) certificates may only be issued by the DG and the Minster. The issuing of these certificates by any other person than the DG or the Minister is not acceptable and such certificates must accordingly be rejected.

3. Vesting of immovable property in name of National I Provincial Government

3.1. Item 28(1) certificates must reflect the name of the relevant government in which such immovable property is to be vested. Vesting clauses must read as follows:

“National Government of the Republic of South Africa”

or

“Provincial Government of (state relevant Province)”

Whichever is applicable in the particular instance.

3.2. The vestings referred to in paragraph 3.1 above are the only vesting clauses to be accepted and any Item 28(1) certificate reflecting the vesting in “The Minister of...” may not be accepted and must accordingly be rejected.

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4. Land in trust for tribes or other identifiable communities of persons

4.1. Distinction must be drawn between state land and land that is being held in trust for tribes or other identifiable communities of persons.

4.2. Where, for instance, the vesting clause in a title deed reflects “The Minister of Agriculture and Land Affairs/Land Affairs/Native Affairs as trustee of... the land therein described is trust land. When dealing with such land the relevant Minister acts in the capacity as trustee and therefore no Item 28(1) certificate should be called for.


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MENTAL HEALTH CARE ACT, 2002 (ACT NO. 17 OF 2002)


The Mental Health Care Act, 2002 (Act No. 17 of 2002), herein after referred to as the Act, came into operation on 15 December 2004 (see Proclamation No. R.61, 2004 in Government Gazette Number 27116 dated 15 December 2004).


The purpose of the Act, among other things, is to provide for the care and administration of the property of mentally ill persons (preamble of the Act.)

3. APPLICATION OF THIS CIRCULAR AND REPEAL OF CRC 1/2005

This Circular provides for compliance with the provisions of section 63(4)(a) of the Act in respect of the alienation or mortgage of immovable property of a mentally ill person. Chief Registrar’s Circular No. 1 of 2005 is hereby repealed and substituted with this Circular.

4. THE IMPACT OF THE ACT ON THE REGISTRATION PROCEDURES

4.1 THE APPOINTMENT OF AN ADMINISTRATOR

Section 59(1) of the Act empowers the Master of the High Court to appoint an administrator for the care and administration of property of a mentally ill person or a person with severe or profound intellectual disability on the basis of an application contemplated in section 60 of the Act or on the basis of a Court order contemplated in section 61 of the Act.

4.2. ALIENATION OR MORTGAGE OF IMMOVABLE PROPERTY

In terms of section 63(4)(a) of the Act an administrator may not alienate or mortgage any immovable property of the person for whom he or she is appointed unless authorised to do so by a court order or with the consent of the relevant Master of the High Court.

4.3 THE APPLICABILITY OF CERTAIN PROVISIONS OF THE ADMINISTRATION OF ESTATES ACT, 1965 (ACT NO. 66 OF 1965)

4.3.1. Section 65 of the Act provides for the applicability of sections 75,78,79,83,84 and 85 of the Administration of Estates Act, 1965 (Act No. 66 of 1965), subject to the necessary changes, to any administrator appointed in terms of the Act, The sections of Act 66 of 1955 that concern the Deeds Office and which will be herein discussed are sections 79 and 85: 4.3.1.1. Ad section 79 of Act 66 of 1965

Section 79 of Act 66 of 1965 is, for the sake of completeness, reproduced below.

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“79. Returns by Masters to registration officers of immovable property included in inventory. —

(1) The Master shall forthwith after receipt by him of an inventory under section seventy-eight in which immovable property has been included, furnish to the registration officer concerned a return specifying the name of the minor or other person concerned and of the tutor or curator and particulars of such property.

(2) No registration officer who has been furnished with such a return, shall register any transaction in respect of such property entered into by the tutor or curator concerned, except in pursuance of any will or written instrument by which that tutor or curator has been nominated or in pursuance of any authority granted under section eighty.”

The practical effect of this section, in relation to an administrator appointed in terms of the Act, is that the Registrar of Deeds must note the return referred to in section 79(1) asa caveat against the name and property of the mentally ill person mentioned therein.

It stands to reason, however, that this procedure should not be applied in respect of mentally ill persons only, but should be applied in respect of all persons in respect of whom tutors or curators have been appointed. The effect of noting the caveat is, naturally, to ensure the application of the relevant legislation.

It is important to note that section 79(2), quoted above, makes reference to section 80 of the same Act, However, the provisions of section 63(4)(a) of the Act must be complied with in respect of the alienation or mortgage of immovable property of a mentally ill person (see paragraph 4.2. above).

4.3.1.2. Ad section 85 of Act 66 of 1965

Section 85 of Act 66 of 1965 is, for the sake of completeness, reproduced below.

“85. Application of certain sections to tutors and curators. —

Sections 24, 26, 28 and 36, subsection (2) of section 42, sections 46 and 48, subsection (2) of section 49 and sections 52, 53, 54 and 56 shall mutatis mutandis apply with reference to tutors and curators: Provided that any reference in any of the said sections to a will shall, for the purposes of its application under this section, include a reference to any written instrument by which the tutor or curator concerned has been nominated.”

The only section of Act 65 of 1965 mentioned in the above quoted section that concerns the Deeds Office and which will be herein discussed is section 42(2).

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Whenever an executor desires to effect transfer of any immovable property in pursuance of a sale, the said section 42(2) provides for the lodgement of a Master’s certificate to the effect that no objection to such transfer exists.

The practical effect of this, in relation to immovable property registered in the name of a mentally ill person, is that a section 42(2) certificate must be lodged whenever the administrator of such property wishes to effect transfer of the same in pursuance of a sale.


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APPLICATION OF SECTIONS 45, 45bis, 45bis(1A) OF THE DEEDS REGISTRIES ACT, 1937 (ACT NO. 47 OF 1937) ON EXCLUSIVE USE AREAS AND REAL RIGHTS OF EXTENSION

1. No uniformity exists in deeds registries with regard to the application of sections 45, 45bis, and 45bis(1A) of the Deeds Registries Act, 1937 (Act No.47 of 1937). Certain deeds registries allow the provisions of the abovementioned sections to be invoked with regard to cessions of exclusive use areas and cessions of real rights of extension in sectional titles schemes, and other deeds registries do not.

2. The above discrepancy was discussed at a deeds registries regulation board meeting and it was resolved that relevant legislation must be amended to provide for the application of sections 45, 45bis, and 45bis(1A) of Act No. 47 of 1937, on cessions of exclusive use areas and cessions of real rights of extension.

3. Pending the amendment of legislation, and to ensure uniformity, Registrars of Deeds are implored to invoke the provisions of sections 45, 45bis, and 45bis(1A) with regard to transactions relating to exclusive use areas and real rights of extension.


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MECHANISATION: DATA CAPTURING AND SCANNING OF REGISTERED DEEDS AND DOCUMENTS


Certain procedures set out in Chief Registrar’s Circular No. 3 of 1983 are no longer in use in the deeds registries. This Circular sets out the current status with regards to the coding and numbering procedures in deeds registries. CRC 3 of 1983 is hereby withdrawn and substituted with this Circular.

2. PROCEDURES TO BE FOLLOWED IN DEEDS REGISTRIES

2.1. The following is a consolidation of the procedures applicable in deeds registries:

2.2. Only black ink of good quality may be used for drafting and signing of deeds and documents.

2.3. Only black ink of good quality may be used to apply endorsements made by the deeds registry in writing or by the use of rubber stamps.

2.4. The discretion of the registrar of deeds as contained in regulation 20 (8) of the Deeds Registries Act No. 47 of 1937 must only be exercised in respect of documents the drafting and signing of which cannot be controlled by the conveyancer.

2.5. Regulation 23 also provides that the writing, typing or printing in deeds and documents must be neat and plain; writing, typing or printing which is illegible, faint or indistinct cannot be accepted because problems arise with the scanning of such deeds and documents.

2.6. Amendments and interlineations with consequential initialling, for example, the names of parties, descriptions of land, extents and money amounts, will no longer be accepted in the important parts of a deed. The important parts of a deed are typically the names and particulars of the transferor in the preamble of the deed; the causa which have a direct bearing on the transaction of the deed; the names and particulars of the transferee; the property description; the property and holding title particulars; and important numerical data in conditions.

2.7. All endorsements must be made horizontally in the same way as the script of the deed and not diagonally on the folio. When a “Cancellation” endorsement is applied to the first page of a document which must be cancelled, the endorsement must be placed in such a way as to leave the portion intended to contain the signature of the Registrar vacant.

3. CODES AND SERIAL NUMBERS

3.1. Subsequent to the registration /execution of a deed or other document with its supporting documents, no further supporting documents may be filed therewith.

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3.2. When the consent of the holder of a registered real right is required for the execution or registration of a new deed, and provided that such consent cannot be classified under one of the hereinafter mentioned groups, such consent must be filed as a supporting document with such new deed.

For example:

The consent by the mortgagee for the registration of a deed or transaction is filed with such deed and not with the existing bond. Such consents are referred to in sections 40 (3), 42 (4), 43 (1), 44 (1), 46 (2), 65 (3), 75 (2)bis, 76 (1), and 93 (1) of Act 47/1937.

The substitutions in terms of sections 24bis(2), 25, 27, 40(5)(a), 45 (2), 45bis (2) and 57 (1) are, however, registered under the relevant code and serial number.

3.3. Any endorsement on a deed must indicate the code and serial number where the supporting documents (if any) are filed.

3.4. When a bond or other endorsement on a title is cancelled, the cancellation endorsement on such title deed must also indicate the code and serial number where the supporting documents are filed.

For example:

When a bond is cancelled, the code and serial number BC . . . /20. . . must be inserted in the endorsement on the bond as well as in the cancellation endorsement on the title deed. The code and serial number BC .. . /20... must also be inserted in amendment and miscellaneous endorsements made on the title.

Other codes and serial number in the abovementioned regard (code before the serial number)

SBC Sectional Bond BCG Proclamation 293/1962 and Proclamation 16/1992 Bonds BCL Leasehold Bonds

4. DIFFERENT CODES AND SERIAL NUMBERS

4.1. LAND TITLES - CODE BEFORE THE SERIAL NUMBER

T Grants T Transfer Deeds T Certificates of Title T All other titles to land T Transfer of land by endorsements TL Certificates of leasehold title, all leasehold transfers, transfers by endorsement, and other leasehold titles

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TG Deeds of Grant in terms of Proclamation 293/1962 and Proclamation 16/1992 ST Certificates of Sectional title and all sectional title transfers

NB: Transfer of land by endorsement is applicable in all cases where the ownership in land vests in terms of the provisions of a law or by order of Court or is conveyed from one person to another in any manner except by way of formal transfer.

Example:

(a) Sections 16, 24bis, 25 (3), 31(7), 32 (5A), 45, 45b1s, and 45bis(IA) of Act 47/1937.

(b) Section 40 of the Administration of Estates Act No 66/1 965 (transfer only).

All supporting documents relating to the transfer of ownership of land by endorsement must be bound together and for all purposes treated as if it was a formal transfer and filed under code T.

The Transfer endorsement on the existing title must disclose that the supporting documents are filed under the code T.

4.2. BONDS - CODE BEFORE THE SERIAL NUMBER

B Bonds BN (and registry where registered) Notarial Bonds BL All bonds and charges over leasehold properties. BG Bonds in terms of Proclamation 293/1962 and Proclamation 16/1992 SB Sectional title bonds

4.3. CONTRACTS - CODE K BEFORE AND THE UNDERMENTIONED CODES AFTER THE SERIAL NUMBER

K Servitudes and Real Rights S K Leases of Land L KL Leasehold in terms of Act 4/1984 L SK Servitudes and Real Rights over Sectional titles S

This code includes cessions, amendments, rectifications, cancellations, releases and section 45 endorsements of the abovementioned contracts.

4.4. INTERDICTS

The following interdicts must be numbered with the code I before and the undermentioned codes after the serial number.

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I General Interdicts and Court Orders I I Attachments AT I Caveats C I Liquidations and Judicial Managements CY I Surveyor-General Interdicts LG I Rehabilitations R I Masters Notices MN

Sequestrations are numbered with the same serial number as interdicts but only the code S must appear before the serial number and not also the code I.

For example: S 325/1974.

4.5 ANTENUPTIAL CONTRACTS: CODE BEFORE THE SERIAL NUMBER

H (and registry where registered)Antenuptial contracts. H (and registry where registered) Orders of Court declaring marriages out of community of property.

4.6. EXPROPRIATIONS: CODE BEFORE THE SERIAL NUMBER

EX Expropriations and Vestings

4.7. RECORDAL / CANCELLATION OF CONTRACT IN TERMS OF ALIENATION OF LAND ACT 68 OF 1981: CODE BEFORE SERIAL NUMBER

B Application for recordal of contract AL BC Application for cancellation of contract AL

4.8. GENERAL POWERS OF ATTORNEY: CODE BEFORE THE SERIAL NUMBER

PA General Powers of Attorney

4.9. LOST TITLES: CODE BEFORE THE SERIAL NUMBER VA Lost or destroyed deeds — copies (regulation 68).

4.10. DEALINGS WITH BONDS, AMENDMENTS AND MISCELLANEOUS: CODE BC (OR BCL FOR LEASEHOLD, SBC FOR SECTIONAL TITLE AND BCG FOR PROC. R29311962 PROPERTIES) BEFORE THE SERIAL NUMBER

This group is used for all documents in connection with registrations for which no provision is made in the other groups and includes:

(a) Dealings with bonds • Waiverofpreference

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• Cancellations • Releases • Cessions • Substitutions • PartPayments • ReductionsofCover • Section3(1)(s)variationsofterms • Substitutionsintermsofsection45and57 • Endorsements in terms of section 40 of the Administration of Estates Act No 66/1965

(b) Amendments: Sections 4(1)(b), 17(4)and 93(1) of Act 47/1937, Companies Act No 61/1973, Close Corporations Act No. 69/1984, Order of Court or any other law.

(c) Miscellaneous Endorsements — Establishment of Townships on existing title, sections 68, 76(1) and 93 of Act 47/1937, Removal of Restrictions Acts 84/1967 and 94/1965, section 8 of Act 21/1940, section 2A of State Land Disposal Act 48/1961, section 34 of Act 102/1972, and section 28 of Act 101/1969. 5. GENERAL

5.1. When an interdict affects a specific property, then—

(a) The description of the property and the registered owner will be correlated;

(b) It will be recorded against the property on the computer.

5.2. If an interdict affects a person only and not also a specific property, it will be recorded only against the name of such person on the computer.

5.3. The code concerned will be recorded on interdicts which will be numbered and bound in one series.

5.4. Any amendment in terms of section 4(1) (b) Act 47/1937 on a deed or document must not be recorded in the deed or document but the nature of the amendment must be set out in or on top of the endorsement.

5.5. When a further bond is passed which ranks parri passu with an existing bond, the new bond endorsement and the existing bond endorsement on the title of the property mortgaged must be qualified by adding the words “This bond ranks parri passu with B...” . Where a waiver of preference occurs in favour of an existing bond, the existing bond endorsement on the title of the property mortgaged must be qualified by “This bond ranks prior to B...

5.6. Make sure that all endorsements are neat and clear and made with black ink and that the rubber stamps are clean and so used that the impressions are clearly legible. Endorsements must be completed in block letters.

5.7. Incorrect endorsements must be avoided. If made, such incorrect endorsements must be clearly ruled through, initialled and dated. If possible, the correct endorsement must be

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made on the same page. If the correct endorsement cannot be made on the same page, the incorrect endorsement must clearly indicate on which page the correction will be found.

5.8. Drafts of endorsements, which are not of a routine nature, must be submitted to the chief deeds controller/senior examiner for approval before the deed is endorsed.

5.9 Examiners notes must be made on a separate sheet of paper clearly marked

“EXAMINER’SNOTES”.

5.10 All examiners’ notes must be clearly and legibly written and if the handwriting of an examiner is difficult to read, notes must be written in block letters or typed.

5.11 Examiners notes must be numbered consecutively and if more than one page is required for notes the bottom of the first note sheet should clearly indicate that notes are continued on a separate note sheet and what the number of that document is in that series.

5.12 Once a note has been complied with it must be clearly removed by drawing a horizontal line through it and at the bottom of such line the signature, name in print, name endorsement and date of the person removing the note must be added.

5.13 Sufficient spaces between notes should be allowed to allow the conveyancer to add a reply or for the note to be augmented by the Chief Deeds Controller.


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THE RECOGNITION OF CUSTOMARY MARRIAGES ACT, 1998 (ACT NO. 120 OF 1998)

1. Purpose of this Circular

1.1. Certain provisions of the Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998) (hereinafter referred to as “the Act”) have been discussed in Circular No. 15 of 2000.

1.2. Section 7(1) and part of section 7(2) of the Act have been declared unconstitutional and invalid in Gumede v President of the Republic of South Africa and Others (CCT50/08 (2008) ZACC 23 (8 December 2008). The effect of the ruling in the Gumede case, as far as it relates to the deeds registration procedures, is herein explained.

1.3. Circular No. 15 of 2000 is hereby withdrawn and substituted with this Circular.

2. Gumede v President of the Republic of South Africa and Others

In Gumede v President of the Republic of South Africa and Others, Moseneke DCJ makes the following ruling with regard to the Act:

• Section7(1)oftheActisinconsistentwiththeConstitutionoftheRepublicofSouthAfrica, 1996 (Act No. 108 of 1996), and invalid to the extent that its provisions relate to monogamous customary marriages.

• Theinclusionofthewords“enteredintoafterthecommencementofthisAct”,insection7(2) of the Act, is declared inconsistent with the Constitution and invalid.

3. Commencement of the Act

The Act came into operation on 15 November 2000. In this regard see Proclamation No. R.66 of 2000, dated 1 November 2000.

4. Purpose of the Act

The purpose of the Act is, inter alia, to make provision for the recognition of customary marriages concluded in terms of customary law which is defined in section 1 of the Act as “the customs and usages traditionally observed among the indigenous peoples of South Africa” and to regulate the proprietary consequences of customary marriages and the capacity of spouses of such marriages.

5. Impact of certain provisions of the Act on deeds registration procedures

5.1. Recognition of customary marriages

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In terms of section 2 of the Act all customary marriages, entered into before or after the commencement of the Act, which are valid marriages under customary law and which comply with the requirements of the Act, are for all purposes recognised as marriages, irrespective of whether a person is a spouse in more than one customary marriage.

5.2. Contractual capacity of spouses

Spouses in a customary marriage have, on the basis of equality and subject to the matrimonial property system governing the marriage, full capacity, including the capacity to acquire assets and to dispose thereof (section 6). The contractual capacity of the spouses in a customary marriage will depend on the matrimonial property system governing the said marriage, that is, whether the marriage is in or out of community of property.

5.3. Proprietary consequences of customary marriages

5.3.1. Marriages in community of property:

In terms of section 7 (2) of the Act, a customary marriage in which a spouse is not a partner in any other existing customary marriage (monogamous customary marriage), is a marriage in community of property and of profit and loss. Chapter III and sections 18, 19, 20 and 24 of Chapter IV of the Matrimonial Property Act, 1984 (Act No. 88 of 1984) apply in respect of these marriages.

Spouses will be described as follows:

Peter Khumalo Identity Number 631024 5094 089 and EstherKhumalo Identity Number 680111 5062 087 Married in community of property to one another

5.3.2. Marriages out of community of property

A customary marriage in which a spouse is not a partner in any other existing customary marriage, may have the proprietary consequences of a marriage out of community of property. This will be the case where spouses elected to enter into an antenuptial contract prior to the conclusion of the marriage (section 7(2)). Spouses who have entered into an antenuptial contract, will be described in deeds and documents as follows:

Anna Fatyela Identity Number 540121 5093 087 Married out of community of property

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5.3.3. Polygamous customary marriages

A customary marriage in which a spouse is also a partner in another. existing customary marriage (polygamous customary marriage), which marriages were entered into before the commencement of the Act, will continue to be governed by customary law (section 7(1) of the Act). Spouses have full capacity and therefore no assistance by other spouses is necessary for the acquisition, disposal or alienation of immovable property. The description of such a person in a deed or document to be registered, must conform to section 17 (2) (b) of the Deeds Registries Act, 1937 (Act No. 47 of 1937), namely:

Peter Nkosi Identity No. 631023 5095 087 Married, which matrimonial property system is governed by customary law in terms of the Recognition of Customary Marriages Act No. 120 of 1998.

5.3.4. Changes to the matrimonial property system and further customary marriages subsequent to the commencement of the Act

5.3.4.1. In terms of section 7 (4) spouses in a customary marriage, entered into prior to the commencement of the Act, may apply to a court jointly for leave to change the matrimonial property system which applies to their marriage or marriages.

5.3.4.2. In terms of section 7 (6) a husband in a customary marriage may, after the commencement of the Act, enter into a further customary marriage (polygamous customary marriage). The husband must, however, make an application to court for the approval of a written contract which will govern the proprietary consequences of his marriages.

5.3.4.3. Where the Court grants an application as contemplated in sections 7(4) and or 7(6), such order of court, together with a certified copy of the contract, will be sent to all Registrars of Deeds. The court order and certified copy of the contract must be recorded as an interdict against the names of the parties concerned.

Where a husband enters into a third or a further marriage he must once again apply to court for the approval of a contract that will govern the proprietary consequences of his marriages. The said contract will supersede the previous contract and it must once again be noted as an interdict against the names of the parties concerned. The interdict that was previously recorded must, naturally, be uplifted as it is superseded by the new one.

5.3.4.4 The description of a person in a deed or document to be registered must conform to section 17 (2) of Act No.47 of 1937, namely:

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Simon Tsabalala Identity Number 540108 0003 089 Married, which marriage the proprietary consequences thereof are governed by an order of court issued in terms of the Recognition of Customary Marriages Act No. 120 of 1998.

5.4. Endorsement of deeds in terms of section 45 of Act No. 47 of 1937

Subsequent to the recording of the order of the court and the contract, no immovable property belonging to the parties which formed an asset in a joint estate, may be dealt with until such time as the provisions of section 45bis (1) (b) or section 45bis (1A) (b) of Act No. 47 of 1937 have been complied with.

5.5. Updating of deeds office records regarding new status

5.5.1. A party may invoke the provisions of section 17 of Act No. 47 of 1937 in order to effect the change in status or to update any deed registered or filed in a deeds registry with regard to a change in status.

5.5.2. The application must be accompanied by-:

• Thedeedstobeupdated. • Proofofthechangeofstatus. • CourtOrderwhereapplicable.


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STAMP DUTIES ACT, 1968 (ACT NO. 77 OF 1968), AS REPEALED BY THE REVENUE LAWS AMENDMENT ACT, 2008 (ACT NO. 60 OF 2008)

1. REPEAL OF ACT NO. 77 OF 1968

1.1 The Stamp Duties Act, 1968 (Act No. 77 of 1968), herein after referred to as the Act, has been repealed by section 103 of the Revenue Laws Amendment Act, 2008 (Act No. 60 of 2008), with effect from 1 April 2009.

1.2 It is important to note that section 103(3) of Act No. 60 of 2008 provides for the provisions of the Act to continue in respect of any instrument described in Schedule 1 of the Act that has been executed before 1 April 2009. ‘Instrument’, in Item 14 of Schedule 1 to the Act relates to ‘Lease or agreement of lease (including any instrument intended or operating as a lease or sub-lease or as an agreement to let or sub-let) whereby immovable property is let for a period as contemplated in section 22 (2) which is longer than five years, whether with or without other assets or rights, provided transfer duty is not chargeable in respect of such lease or agreement’.

The provisions of the Act are therefore still applicable to lease agreements that have been entered into prior to 1 April 2009.

2. REPEAL AND AMENDMENT OF CHIEF REGISTRAR’S CIRCULARS

As a result of the repeal of the Act, the following Chief Registrar’s Circulars are repealed to the extent as indicated below:

Circular No: Extent of repeal: 12/1950 Whole 3/1969 Whole 7/1969 Paragraphs (h) and (i) 2/1974 Paragraphs 2.3.5 to 2.3.5.4 8/1989 Paragraphs 5.4 and 5.5 4/2000 Whole 9/2001 Whole


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99. CHIEF REGISTRAR’S CIRCULAR NO.6 OF 2009

LEGAL SUCCESSION TO THE SOUTH AFRICAN TRANSPORT SERVICES ACT, 1989 (ACT NO. 9 OF 1989)

1. AMENDMENT OF DEFINITION OF ‘CORPORATION’

1.1. The definition of ‘Corporation’ in section 1 of the Legal Succession to the South African Transport Services Act, 1989 (Act No. 9 of 1989), has been amended by the Legal Succession to the South African Transport Services Amendment Act, 2008 (Act No. 38 of 2008), to mean “Passenger Rail Agency of South Africa established in terms of section 22”.

The ‘Corporation’ was formerly known as the “South African Rail Commuter Corporation Limited established in terms of section 22”.

1.2. Act No. 38 of 2008 came into operation on 23 December 2008 (see Government Gazette Number 31769, dated 6 January 2009).

2. ENDORSEMENT OF TITLE DEEDS TO REFLECT CHANGE OF NAME

2.1. The endorsement of title deeds to reflect the change of name must be given effect to as and when the relevant title deed/s is/are lodged for an act of registration.

2.2. Relevant deeds must be endorsed along the following lines:

“Endorsement in terms of section 3(1)(v) of Act No. 47 of 1937 In terms of section 1(a) of the Legal Succession to the South African Transport Services Amendment Act No. 38 of 2008, the name of the within mentioned *transferee/mortgagee/ cessionary has, with effect from 23 December 2008, changed to “Passenger Rail Agency of South Africa established in terms of section 22”.



2.3. No act of registration shall be permissible unless the relevant title deed/s is/are endorsed regarding the change of name referred to in paragraph 2.2.

3. OFFICE FEES

No Office fees are payable in respect of an endorsement referred to in Paragraph 2.2 above.


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REPEAL OF THE BIBLE SOCIETY OF SOUTH AFRICA ACT, 1970 (ACT NO.15 OF 1970)

1. REPEAL OF ACT NO. 15 OF 1970

The Bible Society of South Africa Act, 1970 (Act No. 15 of 1970), has been repealed by the Bible Society of South Africa Act Repeal Act, 2009 (Act No. 2 of 2009), hereinafter referred to as the Act, with effect from 1 April 2009 (see Government Gazette Number 32086, dated 1 April 2009).

2. IMPACT OF CERTAIN PROVISIONS OF THE ACT ON DEEDS REGISTRATION PROCEDURES

2.1. LEGAL SUCCESSOR TO BIBLE SOCIETY INCORPORATED IN TERMS OF ACT NO. 15 OF 1970

2.1.1. Section 2(1) of the Act provides for the Bible Society of South Africa (Association incorporated under section 21), Registration number 2008/007505/08, as the legal successor to the Bible Society incorporated in terms of Act No. 15 of 1970.

2.1.2. In terms of section 2(2) of the Act, the business of the Bible Society is transferred as a going concern to the Bible Society of South Africa, upon the date of the repeal of Act No. 15 of 1970, (1 April 2009).

2.2. ENDORSEMENT OF TITLE DEEDS

2.2.1. The vesting of immovable property / bonds / leases in the name of and in favour of the Bible Society of South Africa must, in terms of section 2(3) and section 2(4) of the Act, be effected by means of the endorsement of the relevant title deed/s.

2.2.2. The endorsement of the title deed/s to reflect vesting in the name of and in favour of the Bible Society of South Africa must be given effect to as and when the relevant title deed/s is/are lodged for an act of registration.

2.2.3. Relevant deeds must be endorsed along the following lines:

“Endorsement in terms of section 3(1)(v) of Act No. 47 of 1937 The within-mentioned immovable property / bond / lease* vests, in terms of section 2(3) /2(4)* of the Bible Society of South Africa Act Repeal Act No. 2 of 2009, and with effect from 1 April 2009, in the name of and in favour of the Bible Society of South Africa (Association incorporated under section 21), Registration number 2008/007505/08.


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2.2.4. No act of registration shall be permissible unless the relevant title deed/s is/are endorsed regarding the vesting referred to in paragraph 2.2.1.

3. OFFICE FEES

No office fees are payable in respect of an endorsement referred to in paragraph 2.2.2 above.


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ALTERATIONS AND ERRORS IN TRANSFER DUTY RECEIPTS

1. NO AMENDMENTS / CHANGES ON TRANSFER DUTY RECEIPTS

The South African Revenue Services (“SARS”) has announced that the payment of transfer duty with regard to the acquisition of property is based on specific laid down requirements which influence the amount of duty to be paid and/or whether any penalty (additional tax) is payable as a result of non-adherence to such requirements.

The practice of amending Transfer Duty Receipts is, as a result of the above, a major cause of concern for audits by the Auditor-General. As a consequence SARS will, as from 1 July 2009, no longer effect any manual amendments / changes to Transfer Duty Receipts.

2. INFORMATION THAT MUST APPEAR IN TRANSFER DUTY RECEIPTS

2.1. SARS has indicated the following is information that must appear in a Transfer Duty Receipt:

2.1.1. Full name and identity number / registration number of the parties.

2.1.2. Date of transaction.

2.1.3. Purchase price, if property was sold.

2.1.4. Property description (property in a sectional title scheme must be described by referring to the number of the section, name of the scheme, and the sectional plan number. No reference need be made to the undivided share in the common property. The exclusive use area must be described by referring to the exclusive use area, for instance G 10, name of the scheme, and the sectional plan number).

3. ERRORS IN TRANSFER DUTY RECEIPTS

3.1. Deeds examiners must not accept Transfer Duty Receipts on which errors of the following nature occur:

3.1.1. Where a clear difference between a name / identity number / registration number cited in other documents (i.e. power of attorney) and the Transfer Duty Receipt exist; 3.1.2. Errors in the property description. Citing incorrect Erf numbers or the names of places, e.g. Erf 345 instead of Erf 435, and Erf 345 Athlone instead of Erf 345 Cape Town, must not be accepted. Errors with regard to the incorrect portion, e.g. portion 1 instead of portion 11 or the remainder of a portion 1, etc. must not be accepted;

3.1.3. Omitting to refer to a personal servitude, e.g. usufruct etc;

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3.1.4. The date of the transaction must be correct;

3.1.5. The purchase price on the Transfer Duty Receipt must tally with the purchase price referred to in the power of attorney;

3.1.6. Deposit Transfer Duty Receipts must not be accepted for registration purposes. A Transfer Duty Receipt, on which the word “Deposit” has been deleted, must not be accepted as a valid Transfer Duty Receipt.

3.2. A certificate by a conveyancer stating the correct position must be accepted with regard to Transfer Duty Receipts on which errors of the following nature occur:

• whereminorerrorsinthespellingofnamesi.e.LouwwinsteadofLouworGustafinstead of Gustaff, etc. have been made;

• differenceswithregardtothelastsevendigitsinanidentitynumber;

• where minor errors in the spelling of a township I farm I scheme name, etc. have been made;

• where incorrect or no reference has been made to the extension of a township, e.g. Nelspruit extension 2 (or Nelspruit) instead of Nelspruit extension 12;

• where incorrectorno referencehasbeenmade to the registrationdivisionof a farm / agricultural holding;

• whereincorrectornoreferencehasbeenmadetotheextentofaproperty.

4. COMPLIANCE WITH SARS DIRECTIVE

In order to comply with the directive issued by SARS, deeds registries must refuse to accept for registration purposes any Transfer Duty Receipt, issued on or after 1 July 2009:

• towhichanamendmentIchangehasbeeneffected;and • inwhicherrorsasreferredtoinparagraph3.1.1to3.1.6supra, occur.

SignedCHIEF REGISTRAR OF DEED

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NATIONAL ENVIRONMENTAL MANAGEMENT: PROTECTED AREAS ACT, 2003 (ACT NO. 57 OF 2003)


The National Environmental Management: Protected Areas Act, 2003 (Act No. 57 of 2003), herein after referred to as the Act, came into operation on 1 November 2004 (see Proclamation No. 52 of 2004 in Government Gazette No. 26960, dated 2 November 2004).


The purpose of the Act is, amongst others, to provide for the protection and conservation of ecologically viable areas representative of South Africa’s biological diversity and its natural landscapes and seascapes; for the establishment of a national register of all national, provincial and local protected areas; and for matters connected therewith, (see long title).


3.1 DECLARATION OF PROTECTED AREAS

3.1.1 The Minister or the MEC may by notice in the Government / Provincial Gazette declare land as a special nature reserve, national park, nature reserve, protected environment, or part thereof (sections 18, 20, 23 and 28 of the Act).

3.1.2 A declaration in the abovementioned regard may be issued in respect of privately owned land, if the owner of such land has consented thereto by means of a written agreement with the Minister or the MEC (sections 18(3), 20(3) and 23(3)).

3.1.3 The terms of any written agreement entered into between the Minister or MEC and the owner of private land in terms of sections 18(3), 20(3) and 23(3) of the Act must, in terms of section 35(3)(b) of the Act, be recorded in a notarial deed and registered against the title deed of the land.

3.2 REGISTRATION OF NOTARIAL DEED AND ENDORSEMENT OF TITLE DEEDS TO REFLECT DECLARATION, ALTERATION OR WITHDRAWAL OF DECLARATION

3.2.1 The Minister or the MEC must notify the Registrar of Deeds in writing whenever an area is declared a special nature reserve, nature reserve or protected environment, or as a part thereof, or whenever a declaration in respect thereof is withdrawn or altered (section 36(1) of the Act). Such notification must include the description of the land involved and the terms and conditions of any notarial deed that has to be registered against the relevant title deed (section 36(2) of the Act).

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3.2.2 The Registrar of Deeds must, in terms of section 36(3) of the Act, record any declaration, withdrawal or alteration in the relevant registers in terms of section 3(1) (w) of Act No. 47 of 1937.

3.2.3 In compliance with the provisions of section 36(3) of the Act the Registrar of Deeds must, upon receipt of a notification referred to in paragraph 3.2.1, note a caveat against the immovable property concerned to the effect that the title deed of the property must be endorsed whenever it is lodged for an act of registration. A caveat in the abovementioned regard must contain clear instructions with regard to the endorsement of a title deed of the property concerned.

3.2.4 Whenever the relevant title deed/s have been lodged for whatever purpose, other than the registration of the notarial deed contemplated in section 35(3)(b), the same must be endorsed along the following lines:

“Endorsement in terms of section 36(3) of Act No. 57 of 2003` * The within-mentioned property has, by notice in Government/Provincial Gazette No. **, been declared a special nature reserve / nature reserve / protected environment / national park, subject to the conditions contained therein***. or * The notice of declaration as special nature reserve / nature reserve / protected environment / national park on the within-mentioned property, as will appear from the endorsement, has by virtue of notice in Government/Provincial Gazette No. ………** / been amended / withdrawn subject to the conditions contained in the said Government/ Provincial Gazette***.

________________________ _______________________ Date Registrar of Deeds

* Omit whichever is inapplicable ** Insert number of relevant Government/Provincial Gazette *** State terms and conditions contained in Government/Provincial Gazette

3.2.5 In instances where the relevant title deed is lodged for the purposes of registering the notarial deed contemplated in section 35(3)(b) of the Act, the said title deed should not be endorsed re the endorsement referred to in paragraph 3.2.4 above because the notarial deed alone is sufficient for the purposes of complying with the Act. 3.2.6 Once the endorsement referred to in paragraph 3.2.4 has been effected or the notarial deed contemplated in section 35(3)(b) of the Act registered; then the caveat that had been noted

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against the relevant property must, naturally, be purged. 3.2.7 Examiners should take note that no act of registration shall be permissible unless and until the relevant title deed/s is/are endorsed regarding the endorsement referred to in paragraph 3.2.4 above.

3.2.8 In instances where the relevant title deed is lodged for the purposes of registering the notarial deed contemplated in section 35(3)(b) of the Act after it has already been endorsed as contemplated in paragraph 3.2.4, the said title deed must be endorsed to reflect the registration of the relevant notarial deed.

The said title deed must then be endorsed along the following lines:

“Endorsement in terms of section 36(3) of Act No. 57 of 2003 * The within-mentioned property has been declared a special nature reserve / nature reserve / protected environment / national park as will more fully appear from Notarial Deed No. K ………………………S.

________________________ _______________________ Date Registrar of Deeds”.

* Omit whichever is inapplicable 3.2.9 Where a declaration has been issued in respect of privately owned land that is subject to a mortgage bond, the bondholder’s consent to effecting the endorsement referred to in paragraph 3.2.4 or the registration of the notarial deed referred to in paragraph 3.2.5 should not be insisted upon because sections 33(1) and (2) of the Act affords third parties who may be negatively affected by the declaration an opportunity of raising an objection to the declaration.

4. REGISTRATION FEES No registration fee is payable with regard to effecting the endorsement referred to in paragraph 3.2.4.

5. WITHDRAWAL OF CRC 2 OF 2005

Chief Registrar’s Circular 2 of 2005 is hereby withdrawn.


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CANCELLATION OF REGISTRATION OF A LOST BOND

1. CANCELLATION OF A LOST OR DESTROYED BOND

The registrar of deeds may effect the cancellation of the registration of a mortgage bond / notarial bond (“bond”) of which the client’s copy, as well as the deeds registry duplicate thereof, have been lost or destroyed.

2. PROCEDURE FOR CANCELLATION

2.1 Publication of notice of intention to cancel a bond:

2.1.1 The person who purports to be the mortgagee must, at own expense, publish a notice of intention to apply for the cancellation of the registration of the relevant bond in two consecutive ordinary issues of the Gazette.

2.1.2 The notice of intention to apply for the cancellation of the registration of a bond must call upon any interested person to furnish the registrar of deeds with an objection, if any, to the cancellation of the registration within a period of six weeks after the date of the first publication of the notice in the Gazette.

2.1.3 The notice of intention to apply for the cancellation must be along the following lines:

“NOTICE OF INTENTION TO APPLY FOR THE CANCELLATION OF A LOST / DESTROYED BOND

Notice is hereby given that it is the intention to apply for the cancellation of the registration of …………………………….. (here insert the bond code, number and year), dated …………………………………. passed by ……………………………. For the amount of …………………………in favour of …………………………………, in respect of certain ……………………………… (here insert the description of the property), which has been lost or destroyed.

All persons having objection to the cancellation of the registration of such bond are hereby required to lodge the same in writing with the registrar of deeds at the deeds registry in which the bond is registered, within three weeks after the date of the first publication of this notice.

Dated at ……………… this ………………… day of …………………………

……………………………………………. Signature of person who purports to be the mortgagee.”

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2.1.4 The registrar must, where an objection to a cancellation of a bond is received, convey the information to the person who purports to be the mortgagee. The registrar must, unless an objection is resolved and withdrawn in the above instance, ensure that no cancellation of the bond takes place, except upon an order of the court.

2.2 Consent to cancellation of bond:

2.2.1 After expiry of the six-week period referred to in paragraph 2.1.2 above, the person who purports to be the mortgagee must lodge with the registrar of deeds, within a further period of six weeks, a consent to cancellation of the registration of the relevant bond. 2.2.2 The consent to cancellation of the bond must contain an affidavit stating the following:

• Thattheclient’scopyofthebondhavebeenlostordestroyed;

• Thatanoticeofintentiontohavetheregistrationoftherelevantbondcancelled, has been duly published;

• Thattheclient’scopyof thebondhasnotbeenpledgedandthat it isnotbeing detained by any one as security for debt or otherwise.

2.2.3 A copy of the intention to cancel the registration of a bond (Gazette) must accompany the consent to cancellation.


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APPLICATIONS IN TERMS OF SECTION 4(1)(b) OF THE DEEDS REGISTRIES ACT

1. BACKGROUND

It has come to light that section 4(1)(b) of the Deeds Registries Act (‘the Act’) has been abused by unscrupulous elements as a means of depriving registered owners of property of their registered rights of ownership. This illegal practice severely compromises the integrity of the deeds registration system, casts a dark shadow over the Chief Directorate: Deeds Registration and diminishes the confidence of the public in the deeds registration system. This circular is, therefore, intended to educate and sensitise both examiners and conveyancers of the requirements and limitations of the use of section 4(1)(b), as well as to map out the manner in which the section should be applied in order to curb the abuse referred to above.

2. THE BEARER OF RESPONSIBILITY

Section 4 of the Act endows the Registrar of Deeds with limited powers to rectify errors in registered deeds. With that power comes the responsibility of ensuring that any rectification is in accordance with the section and does not, specifically, have the effect of transferring real rights. The notion that the responsibility of ensuring that no real rights are transferred is borne by the preparing conveyancer in terms of regulation 44A is fallacious because a conveyancer accepts responsibility only for the matters specifically mentioned in the regulation and which do not include the fact that a 4(1)(b) application will not have the effect of transferring real rights. Furthermore sections 3(1)(b) and 15A(3) of the Act put the matter beyond doubt.

3. NATURAL PERSONS

The description of a natural person comprises of three elements, namely;

• thefullnameoftheperson,i.e.firstname/sandsurname; • theidentitynumber(ordateofbirth);and • themaritalstatus.

While the possible permutations for amending errors of registration by means of section 4(1)(b) are numerous, the examples of errors listed below are clearly not permissible in terms of section 4(1)(b).

It must be borne in mind that the provisions of section 4(1)(b) can be used only to correct errors which occurred on registration of the deed. Where the description of natural persons has changed after registration of the deed due to reasons other than errors in registration, then the provisions of section 93 or section 17(4) of the Act may well be applicable.

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Example 1: Changes in the name/s of the natural person.

A person is described in a registered deed as:

Michael Fanta Identity No. 300101 5555 088 unmarried

An application for the amendment of the description to read:

Michael Coke Identity No. 300101 5555 088 unmarried

OR from:

Michael Fanta Identity No. 300101 5555 088 unmarried

to

David Fanta Identity No. 300101 5555 088 Unmarried.

can clearly not be dealt with in terms of section 4(1)(b) of the Act unless there was an error in the name of the person concerned on the date of registration of the deed.

Where the name of the person concerned was changed as set out in the examples above after registration of the deed, then clearly the provisions of section 93 of the Act must be used in order to effect the change of name as the deed was correct on the date of registration and in these circumstances the provisions of section 4(1)(b) are clearly not applicable.

Example 2: Change in identity number or date of birth of a natural person.

A person is described in a registered deed as:

Michael Fanta Identity No. 300101 5555 088, unmarried An application to change the identity number of the person concerned as follows (the same principles apply to the amendment of a date of birth):

Michael Fanta Identity No. 550730 6497 088, unmarried.

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It is clearly not permissible to amend such a deed in terms of section 4(1)(b) of the Act unless it can be proved to the satisfaction of the Registrar of Deeds that this is one and the same person, that there was a genuine error in the identity number of the person concerned on date of registration of the deed and that no attempt is being made to simply vest the property into the name of a person having the same names but with a different identity number or birth date.

Unless there was such a genuine error, such a rectification would have the effect of vesting the property in the name of an entirely different person and would therefore amount to a transfer of rights as prohibited by section 4(1)(b) of the Act and cannot be permitted.

Each such application lodged for registration will have to be considered by the Registrar of Deeds concerned who has the discretion to call for such proof of the relevant facts as the Registrar deems reasonable and necessary in order to establish that such an application will not result in a transfer of rights and that there will be no contravention of the provisions of section 4(1)(b) of the Act.

ERRORS IN REGISTRATION NOT COVERED BY SECTION 4(1)(b) OF THE ACT

Where errors in registration have occurred and which cannot be rectified as provided for in section 4(1)(b), then other means of rectification will need to be considered such as a rectification transfer, an application to Court or the like.

JURISTIC PERSONS

The name of a juristic person comprises of two elements, namely, the name and the registration number. The possible permutations are numerous, but the examples listed below are definitely not covered by section 4(1)(b).

Example 1: Change of name and registration number of a close corporation/company:

A juristic person is described in a registered deed as

Fanta 11 CC Registration No. 2006 / 003001 / 23

An application in terms of section 4(1)(b) for a change of the name to

Fanta 18 CC Registration No. 2006 / 007291 / 23,

can clearly not be permitted in terms of section 4(1)(b) as, on the face it, there are two different close corporations involved here and if so, the rectification would have the effect of a transfer of rights, and such an application would be in clear contravention of section 4(1)(b) of the Act and is not registerable.

Example 2: Change of name of close corporation or company – after registration of the registered deed:

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Fanta CC Registration No. 2006 / 003001 / 23

and an application is made to the Registrar of Deeds for a change to

Coke CC Registration No. 2006 / 003001 / 23

It is clear that in these circumstances a change of name has taken place, that is the same juristic person, and the matter should be dealt with in terms of the procedure applicable for changes of names of juristic persons in the normal way – accompanied by proof of the change of name from the Registrar of Close Corporations. In such a case the provisions of section 4(1)(b) are clearly not applicable.

Example 3: Change of name of close corporation or company – prior to registration of the registered deed:

Where the change of name of the juristic person occurred prior to the registration of the deed to be amended, then there has been an obvious error in registration and the provisions of section 4(1)(b) can clearly be used to correct the error – provided that the appropriate proof of the alleged facts is submitted to the Registrar together with the application.

5. SECTION 4(1)(a): PROOF OF ALLEGED FACTS:

It is imperative that the provisions of section 4(1)(a) should be considered whenever an application in terms of section 4(1)(b) is made because the responsibility for ensuring the correct application of section 4(1)(b) rests with the Registrar of Deeds, and not with the conveyancer as alluded to above. It is also imperative that the proof which is called for in terms of section 4(1)(a) should be carefully and meticulously scrutinised to ensure that it supports the facts alleged in section 4(1) (b) application as it is pointless to call for proof and then not scrutinise such proof. It has happened in a case that proof was called for but not properly scrutinised resulting in the scenario sketched below.

A juristic person was described in the registered deed as: ABC 1 CC Registration No. 2010 / 007575 / 23. An application in terms of section 4(1)(b) was lodged for the amendment of the description of the juristic person in the deed to read ABC 9 CC Registration No. 2010 / 007575 / 23. Proof of registration of the relevant close corporation was requested, and proof of registration of ABC 9 Registration No. 2010 / 007899 / 23 was duly lodged and accepted. It then transpired that the two close corporations referred to above were two distinct entities in law and that the registration of the application in terms of section 4(1)(b) to ‘amend’ the name of the registered owner therefore clearly constituted a transfer of rights in contravention of section 4(1)(b).

6. REFERRAL TO HIGHER AUTHORITY

In cases of doubt, chief deeds controllers / monitors are implored to refer the relevant matter to higher authority for guidance.

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7. SECTION 99 OF THE ACT

The business of deeds examination requires due diligence. The concerned parties are, therefore, duly advised to take all the necessary care otherwise run the risk of having liability for losses suffered the members of the public imputed upon them. The notion that section 99 of the Act only relates to malice is as self destructive as it is fallacious because the section also relates to not exercising reasonable care.


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SECTIONAL TITLES ACT, 1986 (ACT NO. 95 OF 1986) AMENDMENT OF REGULATIONS


The amended regulations, published under Government Notice No. R.291 in Government Gazette No. 33111, shall be effective from 16 April 2010.



Regulation 13 is hereby amended by the insertion after sub-regulation (4) of the following sub-regulation:

“(4A) The documents, notices and correspondence referred to in sub-regulation (4)(a), (b) and (c), as well as any certificates, plans, schedules, rules and other documents relating to the scheme as a whole and which must be filed in a sectional title file, must be endorsed with a deeds registry date endorsement upon the lodgement thereof.”.

The abovementioned amendment makes it peremptory for a registrar of deeds to endorse all documents, which are to be filed in a sectional title file, with a deeds registry date endorsement. The reason for the inclusion of this sub-regulation is to prevent the substitution of documents, rules, etc., subsequent to the opening of a scheme.

2.2 Form Z

The provisions of regulation 41(1) of the Deeds Registries Act No. 47 of 1937 apply, with the necessary changes, to sectional mortgage bonds. Form Z has therefore been amended to provide for the insertion of a general conditional clause.

The amended form Z must only be required for bonds that have been executed before a conveyancer, after 16 April 2010.

2.3 Form AJ

The addition of Form AJ provides a format for a collateral sectional mortgage bond.

2.4 Form AK

The addition of Form AK provides a format for a surety bond.

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2.5 Annexure 8:

Certain amendments have been effected to Annexure 8 of the Regulations. The said amendments relate to consumer issues and are not referred to in this Circular.


3.1 The amended regulations must be applied only to deeds and documentation lodged after the date of commencement thereof (16 April 2010).

3.2 The new form Z must only be required for bonds executed before a conveyancer after 16 April 2010.


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DEEDS REGISTRIES ACT, 1937 (ACT NO. 47 OF 1937) AMENDMENT OF REGULATIONS


The amended regulations, published under Government Notice No. R.292 in Government Gazette No. 33111, shall be effective from 17 May 2010.



Regulations 16 has been amended to provide for the keeping of a register of persons, other than conveyancers, who are authorised by any law to prepare a deed or other document for registration or filing in a deeds registry.


Regulation 18(1)(a)(iii) has been amended to provide for the identity number and date of birth of a natural person to be reflected in a deed or document, in instances where such person’s date of birth is incorrectly reflected in his/her identity number.


Regulation 29 has been amended to not only provide for the extent of land, but also for the extent of real rights in land or rights registered in terms of the Sectional Titles Act No. 95 of 1986, to be expressed in deeds and documents.


Regulation 34(3)(d) has been amended to refer to the Administration of Estates Act No. 66 of 1965, instead of the repealed Act No. 24 of 1913.


Regulation 35(2) previously provided for conditions to be inserted into title deeds in the official languages that existed prior to the 1994 dispensation, that being Afrikaans and English. The amended regulation 35(2) provides for the insertion of conditions into title deeds in any of the eleven official languages in which the conditions have been constituted. 2.6 Amendment of Regulation 47:

The amendment of regulation 47 is consequential to the amendment of section 57(3) of Act No. 47 of 1937 by the Deeds Registries Amendment Act, No. 24 of 1989. The amendment

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has the effect that a part payment needs only to be registered when a mortgage bond is ceded for the balance due. It is therefore no longer peremptory to do a part payment or cover reduced when registering a substitution of debtor, in terms of section 45 or 57 of Act. No. 47 of 1937.

2.7 Deletion of Regulation 48:

Regulation 48 has been deleted due to the drafting of collateral and surety bonds in accordance with the prescribed forms provided for in the schedule of forms annexed to the regulations.


Proof of the balance for distribution is not always a requirement. Where an estate is administered in terms of section 18(3) of Act No. 66 of 1965, it is not necessary for a LiquidationandDistributionaccounttobelodged.Regulation49(1)(g)hasbeenamendedto provide for the lodgement of proof, only when required.


The amended regulation 50(1) clarifies the fact that a liquidation and distribution account does not have to be accepted by the Master.


The amendment of regulation 61(2) allows for the unilateral cession of any personal servitude, provided no burden is placed on the cessionary. Prior to the amendment the only unilateral cession permitted was the cession of a usufruct, usus or habitation to the bare dominium owner, as provided for in section 66.


The insertion of regulation 68(11A) provides for the cancellation of a mortgage bond or notarial bond in instances where such mortgage bond or notarial bond, as the case may be, and the deeds registry duplicate of such bond have been lost or destroyed.


The insertion of regulation 73(2A) makes it clear that a sketch or plan in lieu of a diagram is unacceptable. 2.13 Amendment of regulation 74:

Theamendmentofregulation74isconsequentialtotherepealoftheLandSettlementAct,1956. 2.14 Amendment of Form D

The amended Form D provides for vesting in the name of the National Government of the Republic of South Africa or relevant Provincial Government.

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2.15 Amendment of Form W

The amendment of Form W is consequential to the amendment of section 57(3) by the Deeds Registries Amendment Act, No. 24 of 1989.

2.16 Other amendments:

The deletion of regulations 38, 39(4), 72, 75, Form AA, Form BB, Form CC, Form DD, Form EE, Form FF, Form GG, Form HH, Form II, Form JJ, Form NN, Form OO and Form OO(1), as well as the amendment of regulations 50(2), 52(1), 61(2), 65, 73, Form PP, Form QQ, Form RR, Form EEE and Form FFF, are consequential to the promulgation of the Mineral and Petroleum Resources Development Act, No. 28 of 2002, which Act provides for the discontinuation of the registration of mineral rights in a deeds registry.


The amended regulations must be applied only to deeds lodged after the date of commencement thereof (17 May 2010).


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PROHIBITION ON EXPEDITING DEEDS IN ALL DEEDS REGISTRIES

1. PROHIBITION ON EXPEDITING DEEDS (OTHER THAN DEEDS RELATING TO LAND REFORM TRANSACTIONS)

Registrars of Deeds must, with immediate effect, discontinue the expediting of deeds that do not relate to land reform transactions and housing (RDP projects). All other deeds must follow the normal processes and time frames that are prescribed.

2. PROCEDURE TO BE FOLLOWED WITH REGARD TO THE EXPEDITING OF DEEDS RELATING TO LAND REFORM TRANSACTIONS AND RDP PROJECTS:

2.1 The following procedure must be followed with regard to the expediting of deeds that relate to land reform transactions and RDP projects:

2.1.1 The conveyancer must make written application to the Registrar of Deeds for the expediting of the deed(s);

2.1.2 The application referred to above must contain the following information:

2.1.2.1 A full description of the transaction, including the names of the parties, the type of transaction and the property description;

2.1.2.2 Full motivation why the transaction should be expedited;

2.1.2.3 A certificate stating that there are no interdicts, orders of Court or any other encumbrances applicable to or pending against the transaction;

2.1.2.4 Provision for the name and signature of the applicant conveyancer as well as the date on which the application is made; and

2.1.2.5 Provision for the name and signature of the Registrar of Deeds approving the application as well as the date upon which such approval is granted.

2.1.3 The conveyancer must sign and date the application and submit it to the Registrar of Deeds.

2.1.4 Upon approval of the application, the Registrar of Deeds must: -

2.1.4.1 Sign and date the application form;

2.1.4.2 Affix a red sticker to the deed (or in the case of a set / batch of deeds, the first deed of such set or batch);

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2.1.4.3 Write the following words on the sticker: “Expedited for execution (or registration) on (date), if in order”;

2.1.4.4 Affix his or her signature and date to the sticker;

2.1.4.5 Record the full particulars of the transaction, the date of the application, the name and firm number of the applicant conveyancer, and the name of the person (Registrar of Deeds or Deputy Registrar of Deeds) who authorised the expediting in a register kept for this purpose; and

2.1.4.6 Include the signed and approved application form as a supporting document with the deed or, in the case of a set or batch of deeds, with the first deed in such set or batch.

2.1.5 The deed(s) must thereafter be lodged by the conveyancer in the normal manner.

2.1.6 No deed or document shall be permitted to enter the deeds registration system process other than by way of lodgement.

2.1.7 No deed or document shall be permitted to bypass any registration process or any section within a deeds registry forming part of the normal deeds registration system process in that registry for that particular type of deed.

2.1.8 The task of expediting deeds may be delegated by the Registrar of Deeds to one Deputy Registrar of Deeds in his/her registry. Under no circumstances may the task of expediting deeds be delegated to more than one Deputy Registrar of Deeds at the same time.

2.1.9 In registries where there are more than one Deputy Registrar of Deeds on the establishment, the task of expediting deeds shall be delegated on a rotational basis to the Deputy Registrars of Deeds. Rotation must be on a monthly basis and under no circumstances shall any one person be allowed to perform this task for two consecutive months.

2.1.10 Registrars of Deeds must strictly control the expediting procedures, and monitor such through regular inspection of the register referred to in paragraph 2.1.4.5 above.

2.1.11 Any transgression of the principles laid down in this Circular will be treated as misconduct and the relevant Registrar of Deeds must see to it that appropriate disciplinary steps are taken against the person(s) responsible. 3. WITHDRAWAL OF CHIEF REGISTRAR CIRCULAR NUMBER 2 OF 1993 Chief Registrar’s Circular No. 2 of 1993 is hereby withdrawn.


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AMENDED SCHEDULE OF FEES OF OFFICE – PRESCRIBED BY REGULATION 84 OF THE DEEDS REGISTRIES ACT, 1937 (ACT NO. 47 OF 1937)

1. Date of commencement of amended Schedule of Fees of Office:

The amended Schedule of Fees of Office, as published under Notice No. R.659, in Government Gazette No. 33413, dated 2 August 2010, will come into operation on 2 September 2010 (also see ‘Regstellingskennisgewing No. 707, published in Government Gazette No. 33452, dated 11 August 2010).

The amended Schedule of Fees of Office will therefore apply to registrations (Item 1), as well as all other transaction (Items 2 – 12), on or after 2 September 2010.

2. Practice to follow with regard to Item 1(a):

2.1 The wording of paragraph (a) of Item 1 (previously Item 8(a)) has been amended to read as follows:

“1. For the registration of – (a) A transfer of land of which the purchase price / value of property, whichever is the greater”

2.2 The effect of the amendment as referred to in paragraph 2.1 supra is that the relevant office fee, as stipulated in Item 1(a), must be charged for all transfers of land, including transfers where a purchase price is not applicable, for example estate transfers, donation transfers, transfers by means of endorsement, etc.

2.3 The consideration clause of a deed of transfer, or the application for a transfer by means of an endorsement, must make reference to the value of the property where a purchase price is not applicable. Such reference will serve as proof of the value of the property.

2.4 Where a transfer duty receipt contains reference to both the purchase price and the value of the property, then both purchase price and value must be reflected in the consideration clause of the deed of transfer or the application for a transfer by means of an endorsement, and office fees must be calculated on the greater of the two amounts.

2.5 The practice referred to in paragraphs 2.3 and 2.4 must be followed with regard to relevant deeds lodged on or after 2 September 2010. Deeds lodged prior to 2 September 2010 may follow the said practice, failing which a conveyancer’s certificate stipulating the correct position regarding the purchase price/value of the property, must be lodged.

2.6 Item 1(d) finds application in instances where property has vested in terms of the requirements of any law (expropriation transfers, section 3(1)(v) endorsements), which are not exempt by law.


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DEEDS REGISTRIES ACT, 1937 (ACT NO. 47 OF 1937), AS AMENDED BY THE DEEDS REGISTRIES AMENDMENT ACT, 2010 (ACT NO. 12 OF 2010)


The Deeds Registries Amendment Act, 2010 (Act No. 12 of 2010) (“the Amendment Act”), was published in Government Gazette No. 33829, and came into operation on 2 December 2010.


The main purpose of the Amendment Act is to amend the Deeds Registries Act, 1937 (Act No. 47 of 1937) (“the Act”), in order to substitute certain obsolete expressions and to enhance the application of the Act in order to confirm to current and uniform practices of the deeds registries.


The following is a brief explanation of the amendment of the Act. Only the amendments that relate to registration issues are discussed.

3.1 Heading to section 2 of the Act:

The heading to section 2 of the Act has been amended by section 1(a) of the Amendment Act, to read as follows:

“Appointment of chief registrar, registrar and assistant registrar of deeds”

3.2 Insertion of section 2 (1D):

Section 1(b) of the Amendment Act provides for the insertion of section 2 (1D), which section reads as follows:

“(1D)For the purposes of subsection (1)(a), “supervision” includes the issuing of practice and procedure directives.”

It often happens that different practices and procedures are being followed in the different deeds registries with regard to registration issues. The reason for this is that a Registrar of Deeds acts autonomous and is not obliged to follow the practice and procedure directives that are issued by the Chief Registrar of Deeds. The abovementioned anomaly has lead to the addition of section 2(1D) and section 3(1)(z) (see paragraph 3.3 infra), and its purpose is to enforce deeds registries to follow the practice and procedure directives (i.e. Chief Registrar’s Circulars and Registrars’ Conference Resolutions) that are issued by the Chief Registrar of Deeds. This will promote uniformity in all the deeds registries throughout the country.

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3.3 Insertion of section 3(1)(z):

Section 2(b) of the Amendment Act provides for the insertion of section 3(1)(z), to read as follows:

“(z) implement practice and procedure directives that are issued from time to time by the Chief Registrar of Deeds.”

See paragraph 3.2 supra.

3.4 Amendment of Section 17:

Section 4 of the Amendment Act provides for the amendment of section 17(2) by substituting the words preceding paragraph (a), to read as follows:\

“(2) Every deed [executed or attested by a registrar, or attested by a notary public and required to be registered in a deeds registry, ad made by or on behalf of or in favour of any person,] or any other document lodged with a deeds registry for execution, registration or record, shall”

Section 17(2) previously provided for the full names and marital status of a person to be reflected in a deed to be lodged for execution, registration, or record purposes in a deeds registry. Section 17(2) has now bee amended in that the full names and marital status of a person must also be reflected in any document (applications, consents, power of attorneys, etc.), that need to be registered, recorded, or executed by a registrar of deeds.

3.5 Insertion of section 34 (1A):

Section 5 of the Amendment Act provides for the insertion of section 34(1A), to read as follows: “(1A) The provisions of subsection (1) shall apply, with the necessary changes, to any person who is the owner of the whole of or a share in a piece of land and who wishes to obtain a certificate of registered title of any fraction of his or her undivided share in such land.”

Section 34 of the Act previously provided for a person who is the joint owner of a piece of land, to apply for a certificate of registered title for his or her undivided share in such land. This situation has now changed with the insertion of section 34(1A) that provides for the issuing, to any person who is the owner of the whole of or a share in a piece of land, of a certificate of registered title for any fraction of his or her undivided share in such land.

4. IMPLEMENTATION OF AMENDMENTS TO THE ACT

The amended provisions to the Act must be applied only to deeds lodged after the date of issue of this circular. However, the amended provisions may also be applied to deeds lodged prior to the date of this Circular, but on or after the date of the coming into operation of the Amendment Act.


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SECTIONAL TITLES ACT, 1986 (ACT NO. 95 OF 1986), AS AMENDED BY THE SECTIONAL TITLES AMENDMENT ACT, 2010 (ACT NO. 11 OF 2010)


The Sectional Titles Amendment Act 2010 (Act No. 11 of 2010) (“the Amendment Act”), was published in Government Gazette No. 33849, and came into operation on 7 December 2010.


The main purpose of the Amendment Act is to amend the Sectional Titles Act, 1986 (Act No. 95 of 1986) (‘the Act’), in order to enhance the application of the Act and to address current shortfalls.


The following is a brief explanation of the amendment of the Act. Only the amendments that relate to registration issues are discussed.

3.1 Amendment of section 11 of the Act

3.1.1 Sections 11(3)(d)(ii) and 11(3)(d)(iii) of the Act have been amended, by section 3(a) of the Amendment Act, to provide for the issuing of more than one certificate of real right of extension of a scheme and more than one certificate of real right of exclusive use areas, as contemplated in sections 25(1) and 27(1), respectively.

3.1.2 The amendment to section 11(3)(d) provides for the deletion of reference to section 40(5) of the Deeds Registries Act, 1937, and the adoption of a procedure similar to that in section 40(5).

* Until the regulations to the Act have been amended, an application and consent for the substitution of the land under a mortgage bond in terms of section 11(3)(d) of the Act must be drafted, with the necessary changes, along the lines of Form MM and From WW in Act No. 47 of 1937. 3.1.3 Section 3(b) of the Amendment Act provides for the insertion of section 11(3)(fB) and 11(3)(fC), to read as follows: “(fB) the certificate or certificates of real right in respect of any right which has or have been reserved by him or her in terms of section 25(1);

(fC) the certificate or certificates of real right in respect of any right of exclusive use if a condition, as contemplated in section 27(1), has been imposed; and”

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Section 11 was, prior to its amendment, silent on the lodgement of certificates of real right of extension and certificates of real right of exclusive use areas, as contemplated in section 25(1) and 27(1) of the Act. Section 11 now provides for the lodgement of the certificate(s) and is therefore in line with section 12 that provides for the registration of the said certificate(s).

3.2 Amendment of section 12 of the Act:

Section 12(1)(e) and 12(1)(f), as amended by section 4 of the Amendment Act, provide for the issuing of more than one certificate of real right of extension of a scheme and more than one certificate of real right of exclusive use areas, as contemplated in sections 25(1) and 27(1), respectively.


Section 5 of the Amendment Act provides for the amendment of section 14(8), to read as follows:

“(8) A registered sectional plan shall, subject to the provisions of subsection (6) and [section] sections 17(6), 48 and 49, only be cancelled by an order of the Court, and the registrar shall give effect to any such cancellation by making the necessary endorsements and entries in his or her records, and shall notify the Surveyor-General, who shall cancel the original sectional plan and the deeds office copy thereof.”

The reason for the amendment of section 14(8) is to make it clear that a registered sectional plan may also be cancelled upon the destruction of or damage to buildings, and upon the disposal of the destruction of buildings, as contemplated in section 48 and 49, without the requirement of a court order. It is therefore not necessary to obtain a court order upon the cancellation of a sectional plan where the buildings are damaged or destroyed. 3.4 Insertion of section 15B(5A):

Section 6 of the Amendment Act provides for the insertion of section 15B(5A), to read as follows:

“(5A) Subsection (5) shall apply, with the necessary changes, to any person who is the owner of a unit or the owner of a share in such unit and who contemplates obtaining a certificate of registered sectional title of any fraction of his or her undivided share in such unit.”

Prior to amendment, section 15B(5) of the Act provided for the issuing of a certificate of registered sectional title or a certificate of real right (in respect of an undivided share in a unit, a right to exclusive use areas, or a right referred to in section 25(1)) only in instances where such unit or right was held in joint ownership. Section 15B(5A) now provides for the issuing, to any person who is the owner of a unit or the owner of a share in such unit, of a certificate of registered sectional title of any fraction of his or her undivided share in such unit.

* Until the regulations to the Act have been amended, the application for the issuing of a certificate of registered sectional title in terms of section 15B(5A), must be drafted, with the

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necessary changes, on the lines of Form I in Annexure 1. The said certificate of registered sectional title must be drafted, with the necessary changes, along the lines of Form J in Annexure 1.


3.5.1 The amendment of section 24(6)(d)(i), by section 7(b) of the Amendment Act, provides for the deletion of reference to ‘conveyancer’. This section now provides for an architect or land surveyor to determine a deviation in the participation quota upon the extension of a section.

3.5.2 The amendment to section 24(6)(d)(i) ad 24(6)(d)(ii) provides for a certificate by a conveyancer to be lodged in instances where there is a deviation of more than 10% in the participation quota of the section to be extended, as a result of the extension.


3.6.1 Section 8(a) of the Amendment Act provides for the substitution for the heading of section 25 of the following heading:

“Extension of schemes by addition of sections and exclusive use areas or by addition of exclusive use areas only”

The heading, as well as section 25(1), 25(2)(b), 25(5), 25(9), 25(10)(d), 25(1)(dA)(ii), 25(11)(b), (c), and (d), and 25(13), have been amended to also provide for the extension of a scheme by the addition of exclusive use areas only.

* Until the regulation to the Act have been amended, the application for the issuing of a certificate of real right in terms of section 25(9) must be drafted, with the necessary changes, along the lines of Form O in Annexure 1.

3.6.2 Section 25(1) has also been amended, by section 8(b) of the Amendment Act, to provide a mechanism whereby a developer may extend the period of time in which a right of extension must be exercised. The period of time may now be extended by unanimous resolution of the body corporate and bondholders and by way of a bilateral notarial deed. The extended period must be agreed upon prior to the expiry of the original stipulated period.

3.6.3 Section 25(1)(a) has been amended to provide for the reservation of a right of extension in respect of a building or buildings that already exist. Other sections that have been amended in this regard are sections 25(2)(a) and 25(2)(b) and (d).

3.6.4 Section 25(4A), as inserted by section 8(g) of the Amendment Act, provides for the lodgement of a conveyancer’s certificate (regarding money that is due to the body corporate) with the cession of a real right of extension or a portion or an undivided share therein.

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3.6.5 The amendment of section 25(5), by section 8(h) of the Amendment Act, relates to the amendment of section 25(1) that provides for the extension of a scheme by the addition of exclusive use areas only. Section 25(5) now provides that “rights of exclusive use must be ceded within 12 months after their creation”.


Section 27(5), as amended by section 9(c) of the Amendment Act, provides for the holder of a personal common law servitude or the holder of a lease, to consent, together with a mortgagee, to the cancellation of an exclusive use area.

3.8 Amendment to section 29 of the Act:

Section 10 of the Amendment Act provides for the amendment of section 29(3) to read as follows:

“(3) If the land to be burdened by a servitude or restrictive agreement is hypothecated, the written consent of every mortgagee, existing on the date of execution of the notarial deed, to the registration of such servitude or restrictive agreement shall before such registration be [lodged with the registrar] obtained by the notary public and filed in his or her protocol.”

Prior to its amendment, section 29(3) of the Act provided for the written consent of every mortgagee to be obtained with the registration of a servitude or restrictive agreement over land in a sectional title scheme. The amended section 29(3) now provides for the obtaining and filing, in the protocol of the notary, of the consent of bondholders that exist on the date of execution of such servitude or agreement.


Section 44(1)(g), as amended by section 12 of the Amendment Act, provides for the purpose for which an exclusive use area is intended to be used, to be shown expressly or by implication on a registered sectional plan.

4. IMPLEMENTATION OF AMENDMENTS TO THE ACT

The amended provisions to the Act must be applied only to deeds lodged after the date of issue of this circular. However, the amended provisions may also be applied to deeds lodged prior to the date of this Circular, but on or after the date of the coming into operation of the Amendment Act.


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CONDITIONS RELATING TO MINERAL RIGHTS IN TITLE DEEDS TO IMMOVABLE PROPERTY

1. The time frames allocated for the conversion of rights referred to in Schedule II of the Mineral and Petroleum Resources Development Act, 2002 (Act 28 of 2002), expired on 30 April 2009.

2. Consequently, all conditions relating to the reservation of mineral rights in title deeds to immovable property must be omitted from such titles deeds (see paragraph 4.3.3 of CRC 11/2004).

3. Mineral rights no longer exist and mineral right conditions containing ancillary rights attached thereto must also be omitted from title deeds to immovable property.

4. RCR 25 of 2010 is hereby suspended and will be referred to the next Registrars’ Conference for withdrawal.

5. The omission of title conditions as referred to in paragraphs 2 and 3 must be followed with regard to all title deeds to immovable property lodged for purposes of registration on or after 1 April 2011.


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SUSPENSION OF IMPLEMENTATION OF REGISTRARS’ CONFERENCE RESOLUTIONS 46, 47 AND 62 OF 2010

1. The National Association of Managing Agents (NAMA), which represent a fairly considerable number of home owners associations countrywide, has submitted documentation quantifying the financial impact of Registrars’ Conference Resolutions 46, 47 and 62 of 2010 on home owners associations it represents. The said impact is in the region of Eighty Million Rand (R 80 000 000).

2. Home owners associations have, for a considerable period of time, solely relied on the conditions registered against title deeds for ensuring collection of monies owed to them. The passing of these resolutions has effectively pulled the carpet from under their feet.

3. In view of the unforeseen and unintended consequences of these resolutions and the imperative to protect the Branch Deeds Registration from possible and needless litigation, the implementation of Registrars’ Conference Resolutions 46, 47 and 62 of 2010 is hereby suspended with immediate effect.


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113. CHIEF REGISTRAR’S CIRCULAR NO. 7 OF 2011 (NOW WITHDRAWN vIDE CRC 2 OF 2012)

APPLICATION OF SECTION 25(13) OF THE SECTIONAL TITLES ACT, 1986 (ACT 95 OF 1986)

1. Roseparkadmin CC and Others v The Registrar of Deeds (Western Cape High Court Case No. 5522/2011 dated 17 May 2011)

1.1 In the abovementioned case, Weinkove AJ ordered the setting aside of a rejection note that was made in accordance with Registrar’s Conference Resolution 2 of 2009, together with an order for the registration of the relevant deeds.

1.2 The following, amongst others, is recorded as “Reasons for Judgment”:

• Section25(13)oftheSectionalTitlesAct95of1986(“theAct”)provides“that it is the owner who feels that he is prejudiced by the changes who alone may apply to court and it is not the developer who is required to make that application.” (par. 13).

• Reference is made PLC Trust and Others v The Registrar of Deeds Bloemfontein and Others (case no. 4863/2010), where it was held that the Act made no provision for the withholding of registration before permitting a deviation from the original plan. The Act does also “not expressly place any duty on the Registrar of Deeds to approve the extension plan or not. That approval must be given by the Surveyor-General. All the Registrar of Deeds must do to is satisfy himself that all the formalities prescribed by the Act for registration have been complied with. He is not called upon to investigate or decide on the need for any amendment or extension of this scheme.” (par. 18).

• TheJudgeagreeswiththeJudgmentinthePCLTrust-caseand“relieves the Registrar of Deeds from having to extend his obligations in connection with the registration of these schemes.” (par.21).

2. Suspension of RCR 2 or 2009

2.1 In view of the ‘Reasons for Judgment” in the Roseparkadmin case, deeds examiners no longer need to examine draft sectional plans lodged with applications in terms of section 25(9) of the Act.

2.2 RCR 2 of 2009 is suspended with immediate effect and will be referred to the next Registrars’ Conference for withdrawal.


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DECLARATON OF NATIONAL ROADS AND TRANSFER OF SUBDIVIDED LAND TO THE SOUTH AFRICAN NATIONAL ROADS AGENCY LIMITED

1. The Minister of Transport has, in terms of section 40(1)(a) of the South African National Roads AgencyLimitedandNationalRoadsAct,1998(Act7of1998),declaredvarious‘public roads’ as ‘national roads’. The said declarations have taken place upon recommendation of the South AfricanNationalRoadsAgencyLimited(‘SANRAL’)andwiththeagreementofthePremier,as required by section 40(2)(a) of Act 7 of 1998.

(See Chief Registrar’s Circular 1/2002 for a discussion on the endorsement of title deeds regarding the declaration of national roads).

2. Portions of land on which the ‘national roads’aresituatedmustbetransferredtoSANRALand such transfers will result in the land having to be subdivided. The title deeds of the land affected contain conditions imposed in terms of the Advertising on Roads and Ribbon Development Act, 1940 (Act 21 of 1940), inter alia that the land may not be subdivided without the consent of the Premier. However, the provisions of Act 21 of 1940 relate to ‘public roads’ and is not applicable to ‘national roads’ which are administrated by the provisions of Act 7 of 1998.

3. Consent for the subdivision of the relevant land must, in terms of section 49 of Act 7 of 1998, begivenbySANRAL.DuetoSANRALbeingtheauthorisingagencyaswellasthetransfereeof the land in question, SANRAL has indicated, at a meeting with the Office of the Chief Registrar of Deeds on 22 July 2011, that its consent for subdivision will not be necessary in these particular instances.

4. Withdrawal of a declaration in terms of section 40(1)(b) of Act 7 of 1998 has the effect of a ‘national road’ converting back to a ‘public road’. Several such withdrawals are envisaged by SANRALandithasindicateditspreferenceforthe‘Act 21 of 1940 conditions’ to remain in the title deeds of the land to be transferred, as well as the incorporation thereof in the new deeds of transfer. This will avoid having to reintroduce such conditions upon withdrawal of a declaration.

5. In order to created a uniform practice in the different deeds registries and also to support the objectives of SANRAL, Registrars of Deeds must allow the registration of transfers of land, without the lodgement of consent for subdivision and the remaining/incorporation of the ‘Act 21 of 1940 conditions’ in the title deeds, as discussed in paragraphs 3 and 4 supra.

(The title deeds of the affected land must contain a condition/endorsement regarding the declaration of the national road, as discussed in CRC1/2002, and the causa of the Deeds of Transfer must refer to the declaration and transfer of the national roads to SANRAL).

6. RCR 69 of 2010 is hereby suspended and will be referred to the next Registrars’ Conference for further discussion and possible withdrawal.


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SECTIONAL TITLES ACT, 1986 (ACT NO. 95 OF 1986) AMENDMENT OF REGULATIONS


The amended regulations, published under Government Notice No. R. 805 in Government Gazette No. 34639 dated 28 September 2011, shall be effective from 28 October 2011.


Only the amendments that have an impact on registration issues are herein referred to:

2.1 Regulation 10

Regulation 10(4) has been inserted to make provision for a prescribed form of application (FormAL)andconsent(FormAM)inrespectofsubstitutionoflandshownonasectional plan for land originally mortgaged under a mortgage bond, as contemplated in section 11(3) (d) of the Sectional Titles Act, 1986 (Act No. 95 of 1986) (‘the Act’).

2.2 Regulation 13A

Regulation 13A has been inserted to provide a mechanism for the issuing of a ‘Replacement Schedule’ to take the place of a lost or destroyed schedule of servitudes and conditions, as contemplated in section 11(3)(b) of the Act.

2.3 Regulation 15

Section 14(8) of the Act provides for the cancellation of a sectional plan by an order of the Court. Regulation 15(8) has been inserted to provide a mechanism for the cancellation of such a sectional plan.

2.4 Regulation 16

2.4.1 Regulation 16(1)(c) has been substituted and regulation 16(d)(i) and (ii) inserted to provide a mechanism for the issuing of a replacement certificate to take the place of a lost or destroyed Form W (Certificate of Establishment of a Body Corporate in terms of section 36(1) of the Act).

2.4.2 Section 15B(5A) of the Act provides for the issuing of a certificate of registered sectional title to an owner of a unit in respect of a fraction of an undivided share in such a unit. Regulation 16(5) has been substituted to make provision for a prescribed form for the certificate of registered sectional title, as contemplated in section 15B(5A) of the Act.

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2.5 Regulation 25

Regulation 25(2A) has been inserted to make provision for a prescribed form for certificates of real rights in respect of exclusive use areas that are not linked to the addition of new sections in a scheme, as contemplated in section 25(10)(d) of the Act.

2.6 Regulation 25A

The insertion of regulation 25A provides a mechanism for the issuing of replacement documentation to take the place of lost or destroyed documentation referred to in section 25(2) of the Act.

2.7 Regulation 28 2.7.1 Section 25 of the Act makes provision for the extension of a scheme by the addition of rights to exclusive use areas that are not linked to the addition of new sections in a scheme. Regulation 28(1) has therefore been substituted to make reference to the exclusive use areas referred to in section 25 of the Act.

2.7.2 The substitution of regulation 28(2) is consequential to the substitution of regulation 28(1).

2.8 Regulation 34

Regulation 34 has been substituted to make reference to the form that must be followed for the drafting of a collateral sectional mortgage bond and a surety bond.

2.9 Form F

The footnote to Form F has been substituted to provide for the issuing of more than one certificate of real right of extension, as contemplated in section 12(1)(e) of the Act.

2.10 Form I

The substitution of Form I is consequential to the amendment of regulation 16(5).

2.11 Form J

The substitution of form J is consequential to the amendment of regulation 16(5).

2.12 Form O The substitution of Form O is consequential to the amendment of regulations 28(1) and 28(2).

2.13 Form AK

The substitution of Form AK provides for the surety to appear before a conveyancer upon execution of the surety bond.

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2.14 Form AL

FormALhas been added toprovide aprescribed form for an application and consent, as contemplated in section 11(3)(d) of the Act.

2.15 Form AM

Form AM has been added to provide a prescribed form for consent, as contemplated in section 11(3)(d) of the Act.

2.16 Form AN The addition of Form AN is consequential to the insertion of regulations 13A and 25A.

2.17 Form AO

The addition of Form AO is consequential to the insertion of regulation 16(1)(d) that provides for the issuing of a replacement certificate.

2.18 Rule 71 Rule 71(4) has been substituted to provide for the appointment of arbitrators by the chief registrar of deeds (instead of a registrar of deeds). This substitution was necessary to provide a single office for appointment in order to save time and confusion in the process.


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RECTIFICATION OF TITLE DEEDS AND UPDATING OF DEEDS REGISTRY RECORDS REGARDING THE VESTING OF STATE LAND

1. INCORRECT VESTING OF IMMOVABLE STATE LAND

1.1 This Circular contains procedures for the rectification of title deeds and the updating of deeds registry records with regard to the vesting of immovable state land.

1.2 The vesting of immovable property in the name of the National / Provincial Government is discussed in Chief Registrar’s Circular No. 9 of 2008. However, the procedure contained in CRC9 of 2008, is not correctly implemented in all the deeds registries. Many registered title deeds incorrectly reflect, amongst other things, a Government Department or the ‘Republic of South Africa’, as the registered owner of state land.

2. RECTIFICATION OF TITLE DEEDS AND UPDATING OF DEEDS REGISTRY RECORDS

2.1. Immovable property belonging to the state should, notwithstanding the possible incorrect wording in the Item 28(1) certificate, only be vested in either the National Government of the Republic of South Africa, or the relevant Provincial Government.

2.2. The endorsing of title deeds to reflect the correct vesting in respect of immovable property belonging to the state, must be given effect to when the relevant title deed/s is/are lodged together with an application for an endorsement in terms of section 3(1)(v) of Act No. 47 of 1937. The application must make reference to the incorrect vesting of the property in terms of Item 28(1) of Schedule 6 of Act No. 108 of 1996 (see par. 2.6 infra).

2.3. An application referred to in par. 2.2 must be made by an authorised official of the DepartmentofPublicWorksortheDepartmentofRuralDevelopmentandLandReform.

2.4 The relevant deed/s must be endorsed along the following lines:

“Endorsement in terms of section 3(1)(v) of Act No. 47 of 1937 The within-mentioned *property / right / asset vests in the:

*National Government of the Republic of South Africa / Provincial Government of

.............................................................................. (state relevant Province)*

Application filed with BC ...........................................................................



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2.5 The capturing by data of the vesting referred to in par. 2.4 will result in the natural updating of the deeds registry records.

2.6 Examiners must note that the procedure in par. 2.2 can only be implemented in instances where an incorrect vesting of immovable property belonging to the state in terms of an Item 28(1), has occurred.

3. OFFICE FEES

No fee or other charge is payable in respect of a registration in terms of Item 28(1) of Schedule 6 of Act No. 108 of 1996 (see Item 28(2)). An office fee, therefore, must not be charged in respect of an endorsement referred to in paragraph 2.4 above.


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APPLICATION OF SECTION 25(13) OF THE SECTIONAL TITLES ACT, 1986 (ACT 95 OF 1986)

1. ROSEPARKADMIN CC AND OTHERS V THE REGISTRAR OF DEEDS (WESTERN CAPE HIGH COURT CASE NO. 5522/.2011 DATED 17 MAY 2011)

1.1. In the abovementioned case, Weinkove AJ ordered the setting aside of a rejection note that was made in accordance with Registrars’ Conference Resolution 2 of 2009, together with an order for the registration of the relevant deeds.

1.2. The following, amongst others, is recorded as “Reasons for Judgment”:

• Section25(13)oftheSectionalTitlesAct95of1986(“theAct”)provides“that it is the owner who feels that he is prejudiced by the changes who alone may apply to court and it is not the developer who is required to make that application.” (par. 13).

• Reference ismade toPLC Trust and Others v The Registrar of Deeds Bloemfontein and Others (case no. 4863/2010), where it was held that the Act made no provision for the withholding of registration before permitting a deviation from the original plan. The Act does also “not expressly place any duty on the Registrar of Deeds to approve the extension plan or not. That approval must be given by the Surveyor-General. All the Registrar of Deeds must do is to satisfy himself that all the formalities prescribed by the Act for registration have been complied with. He is not called upon to investigate or decide on the need for any amendment or extension of this scheme.” (par.18).

• TheJudgeagreeswiththejudgmentinthePCL Trust-case and “relieves the Registrar of Deeds from having to extend his obligations in connection with the registration of these schemes.” (par.21).

2. ‘SECTION 25(2) PLANS’

2.1 In view of the ‘Reasons for Judgment’ in the Roseparkadmin-case, deeds examiners no longer need to examine the plans referred to in section 25(2), lodged with applications in terms of section 25(9) of the Act.

2.2 Although not being the duty of the registrar of deeds to enforce compliance with regard to deviations, it is the registrar’s duty to ensure that the extension of a scheme is within the physical boundaries of the reserved right (see RCR 2 of 2009 (as amended) and RCR 12 of 2011). Thus, should it not be possible for an examiner to determine whether the extension is being exercised within the physical boundaries of the reserved right, confirmation of this fact must be sought from the architect or land surveyor concerned (see RCR 61/2008).

3. WITHDRAWAL OF CHIEF REGISTRAR’S CIRCULAR NO. 7 OF 2011

Chief Registrar’s Circular No. 7 of 2011 is hereby withdrawn.


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COMPANIES ACT, 2008 (ACT 71 OF 2008), AS AMENDED BY THE COMPANIES AMENDMENT ACT, 2011 (ACT 3 OF 2011)

1. APPLICATION OF THIS CIRCULAR AND REPEAL OF CRC 6 OF 2011

Uncertainty exists with regard to the names (suffixes) of companies, as provided for in the Companies Act, 2008 (Act 71 of 2008), as amended by the Companies Amendment Act, 2011 (Act 3 of 2011). This Circular aims, amongst other things, to provide clarity in the above mentioned regard.

Chief Registrar’s Circulars No.6 of 2011 is hereby withdrawn and substituted with this Circular.

• Deedsanddocumentationthatdonotreflectthecorrectname(suffix)ofacompanymustnot be rejected, until 1 March 2012. Conveyancers must be allowed to amend deeds/documents, or to give a certificate where full initialling is required, in respect of names of companies that are incorrectlyreflected.


The Companies Act, 2008 (Act 71 of 2008) (‘’the Act”), as amended by the Companies Amendment Act, 2011 (Act 3 of 2011), came into operation on 1 May 2011, except for section 11(1)(a)(ii) and (iii) that will come into operation on 30 April 2014 (see Government Gazette No. 34243 dated 20 April 2011, together with Proclamation No. R.32 of 2011 in Government Gazette No. 34239 dated 26 April 2011).


The purpose of the Act, amongst other things, is to provide for the incorporation, registration, organisation and management of companies; to provide for equitable and efficient amalgamations, mergers and takeovers of companies; to repeal the Companies Act, 1973 (Act 61 of 1973); to make amendments to the Close Corporations Act, 1984 (Act 69 of 1984); and to provide for matters connected therewith.

4. IMPACT OF CERTAIN PROVISIONS OF THE ACT ON DEEDS REGISTRATION PROCEDURES

4.1 Continuation of pre-existing companies

4.1.1 In terms of item 2(1) of Schedule 5 of the Act, every pre-existing company that was immediately before the coming into operation of the Act (‘general effective date’) –

(a) incorporated or registered in terms of the Companies Act, 1973 (Act No. 61 of 1973); or

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(b) recognised as an “existing company” in terms of the Companies Act, 1973 (Act No. 61 of 1973),

continues to exist as a company, as if it had been incorporated and registered in terms of this Act, with the same name and registration number previously assigned to it, subject to item 4 which, inter alia, deals with amendments to a company’s ‘Memorandum of Incorporation and Rules”.

4.1.2 Despite section 11 of the Act, a pre-existing company -

(a) whose name, immediately before the coming into operation of the Act (‘the effective date), satisfied the requirements of section 49 of the previous Act, is not required to change its name to comply with section 11(3)(c) solely on the ground that any part of its name was in an official language other than English; and

(b) may continue to use a translated name that, immediately before the effective date, was registered and otherwise met the requirements of section 50(2) of the previous Act (see item 2(2) of Schedule 5 to the Act).

4.1.3 The effect of the abovementioned is that:

(a) A pre-existing company need not to amend its name in instances where such company’s name has complied with the criteria as referred to in Items 2(1) and 2(2) of Schedule 5 to the Act;

(b) A pre-existing company may continue to use a translated name if such name was registered before the coming into operation of the Act and has met the requirements of section 50(2) of the previous Act.

4.2 Criteria for names of companies: (applicable to companies registered in terms of the Act)

4.2.1. Section 11(3) of the Act provides that:

4.2.1.1 If the name of a profit company is the company’s registration number, that number must be immediately followed by the expression “(South Africa)” (section 11(3)(a) of the Act), for example:

(In the case of a private company)

2011/000123/07(SouthAfrica)ProprietaryLimited Registration number 2011/000123/07

Or

2011/000123/07(SouthAfrica)(Pty)Ltd Registration number 2011/000123/07

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4.2.1.2 If the company’s Memorandum of Incorporation includes any provision contemplated in section 15(2)(b) or (c) restricting or prohibiting the amendment of any particular provision of the Memorandum, the name must be immediately followed by the expression “(RF)” (section 11(3)9b)), for example:

4.2.1.3 A company’s name must, in terms of section 11(3)(c) of the Act, irrespective of its form or language, end with one of the following expressions, as appropriate for the category of the particular company (see examples above):

4.2.1.3.1 the word “Incorporated” or its abbreviation “Inc.” in the case of a personal liability company;

4.2.1.3.2 the expression “Proprietary Limited” or its abbreviation, “(Pty) Ltd.”,inthecaseofaprivatecompany;

(In the case of a public company)

2011/000456/06(SouthAfrica)Limited Registration number 2011/000456/06

Or

2011/000123/06(SouthAfrica)Ltd Registration number 2011/000456/06


BlueMountainProprietaryLimited(RF) Registration number 2011/000678/07

BlueMountain(Pty)Ltd(RF) Registration number 2011/000678/07

(In the case of a public company)

BlackWaterLimited(RF) Registration number 2011/000678/06

BlackWaterLtd(RF) Registration number 2011/000678/06

(where the name of the RF-company is also its registration number)

2011/000123/07(SouthAfrica)ProprietaryLimited(RF) Registration number 2011/000123/07

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4.2.1.3.3 the word “Limited” or its abbreviation, “Ltd.”, in the case of a public company;

4.2.1.3.4 theexpression“SOCLtd.”, in thecaseof a state-ownedcompany (this also applies to the companies registered before 1 May 2011);

4.2.1.3.5 the expression “NPC”, in the case of a non-profit company (this also applies to companies registered before 1 May 2011).

4.2.1.4 Both Afrikaans and English suffixes are catered for in the Act, as they are set out in the English and Afrikaans text of the Act. Therefore, as was the case under Act No. 61 of 1973, either English or Afrikaans suffixes may be used, irrespective of the language in which the name of the company appears.

The relevant expressions in Afrikaans are as follows (section 11(3)):

4.2.1.4.1 the word “Geïnkorporeer” or its abbreviation “Geïnk.”, in the case of a personal liability company;

4.2.1.4.2 the expression “Eiendoms Beperk” or its abbreviation “(Edms.) Bpk.”, in the case of a private company;

4.2.1.4.3 the word “Beperk” or its abbreviation “Bpk.”, in the case of a public company;

4.2.1.4.4 the expression “MSB Bpk.” in the case of a state-owned company;

4.2.1.4.5 the expression “MSW” in the case of a non-profit company.

4.2.1.4.6 If the name of a profit company is the company’s registration number, that number must immediately be followed by the expression, “(Suid-Afrika)”, when the deed/document is drafted in Afrikaans.

4.3 Issuing of registration certificate and changing / amendment of company’s name:

4.3.1 The Commission (“Companies and Intellectual Property Commission established by section 185 of the Act”) must, after accepting Notice of Incorporation in terms of section 13(1) or an application for the domestication of a foreign company in terms of section 13(5) of the Act, issue to a company a registration certificate in the prescribed form (section 14(1)(b)((iii)).

4.3.2 If the name of a company, as entered on the Notice of Incorporation, fails to satisfy the requirements of section 11(3), the Commission may alter the name and issue and deliver to the company an amended registration certificate showing the amended name of the company (section 14(2)(a) and 14(2)(bb)).

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4.3.3 Section 16 of the Act provides for a company’s Memorandum of Incorporation to be amended. Such an amendment may, in terms of section 16(5)(b)(i), take the form of changing the company’s name.

4.3.4. If a company’s amendment to its Memorandum of Incorporation includes a change of the company’s name, the provisions of section 14(2), read with the changes required by the context, apply afresh and the Commission must issue to the company an amended registration certificate (section 16(8) of the Act).

4.3.5 An amendment to a Memorandum of Incorporation (in the case of an amendment that changes the name of a company) takes effect on the date set out in the amended registration certificate issued by the Commission in terms of section 16(8), read with section 14(1)(b)(iii).

4.4 Endorsement of deed to reflect a change of name of a company

4.4.1 The Act places no burden on the Registrar of Deeds to endorse deeds and documents regarding a change of name of a company.

4.4.2 A change of name of a company (affected after 1 May 2011 in terms of the provisions of the Act) must now be recorded in deeds and documents in terms of section 93 of the Deeds Registries Act, 1937 (Act 47 of 1937). A section 93 application must be lodged by the applicant (owner/holder) together with proof of the change of name of a company in the form of an amended registration certificate issued in terms of section 14 or section 16 of the Act.

4.4.3 The provisions of section 93(1)(a) that provides for consent of any person that may be affected by a registration of a change of name, and section 93(1)(b) that provides for the lodgement of any operative deeds in which the applicant’s old name appears as a party thereto other than as transferor or cedent, need not be complied with. In this instance, a caveat must be noted to the effect that all the relevant title deeds must be endorsed to indicate the change of name.

4.4.4 Where a company’s name appears in a condition of title, such as servitude rights, restrictive or other conditions, it will not be necessary to change the name when the conditions are brought forward into a new deed. It will also not be necessary to update the title deed to reflect the new name of the company. However, where there is a condition in a title deed indicating that consent (for example transfer of that property) is required from a company that has changed its name, such consent must reflect both the new and former name of the company.

4.4.5 Where a mortgagee company has changed its name (once or several times) it will not be necessary to endorse the bonds to indicate the change in name when such bonds are lodged for cancellation. However, the consent to cancellation must refer to all changes of the name.

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4.4.6 The status quo remains regarding the endorsement of deeds and documents to reflect a change of name of a company, affected prior to 1 May 2011 in terms of the repealed Companies Act 61 of 1973.

4.5 Conversion of close corporations to companies

4.5.1 Upon conversion of a close corporation to a company, the Commissioner must “enable the Registrar of Deeds to effect the necessary changes resulting from conversions and name changes.” (Schedule 2, Item 1(4)(c)).

4.5.2 Although the Act is silent on the lodgement of an application and the relevant title deed/s, the endorsement of a title deed to reflect a conversion of a company must be given effect to only when an application in terms of section 3(1)(v) of Act 47 of 1937, together with proof of the conversion and the relevant title deed/s, have been lodged.

4.5.3 Relevant deed/s must be endorsed along the following lines:

“Endorsement in terms of section 3(1)(v) of Act 47 of 1937

The within close corporation has been converted, in terms of the provisions of the Companies Act, 2008 (Act 71 of 2008) into a *........................................ company and is now known as ** ............................................. (registration number ................................).


* Insert type of company ** Insert name of company

4.6 Conversion (applied for before 1 May 2011) of company to close corporation

The Act does not provide for the conversion of a company into a close corporation. However, any conversion of a company to a close corporation, applied for in terms of section 27 of Act 69 of 1984 and filed with the Registrar of Companies before 1 May 2011 and not fully addressed at that time, must be concluded by such Registrar in terms of Act 69 of 1984 (Schedule 5, Item 3(2)). Although registered under the provisions of Act 69 of 1984, such company shall be regarded as a pre-existing company for all purposes of the Act (Schedule 5, Item 3(3)).

4.7 Implementation of amalgamation or merger of companies

4.7.1 Where property has to be transferred from an amalgamating or merging company to an amalgamated or merged company as a consequence of an amalgamation or merger, a copy of the amalgamation or merger agreement, together with a copy of the filed notice of amalgamation or merger, constitutes sufficient proof for the registrar of deeds to effect transfer of the registration of that property (section 116(8) of the Act).

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4.7.2 Although the Act is silent in this regard, an endorsement by the Registrar of Deeds to effect transfer of property, as provided for in section 116(8) of the Act, must be effected only on the lodgement of an application together with a copy of the amalgamation or merger and a copy of the filed notice of amalgamation or merger, and the relevant title deed/s.

4.7.3 Relevant deed/s must be endorsed along the following lines:

“Endorsement in terms of section 3(1)(v) of Act 47 of 1937

The within company has amalgamated / merged with company ............................. (registration number ......................), in terms of section 116 of the Companies Act, 2008 (Act 11 of 2008), and is now known as ........................................ (registration number ..........................................).


*Insert name of company

4.8 Registration of external Companies

4.8.1 “External company”, in terms of section 1 of the Act, ‘means a foreign company that is carrying on business, or non-profit activities, as the case may be, within the Republic, subject to section 23(2)’.

4.8.2 An external company must register with the Commission to conduct business or non- profit activities, as the case may be, within the Republic. as an external non-profit company or as an external profit company (section 23(1)).

4.8.3 A foreign company must, for the purposes of section 23(1) and the definition of “external company”, be regarded as “conducting business, or non-profit activities, as the case may be, within the Republic” if that foreign company -

(a) is a party to one or more employment contracts within the Republic; or

(b) subject to subsection (2A), is engaging in a course of conduct, or has engaged in a course or pattern of activities within the Republic over a period of at least six months, such as would lead a person to reasonably conclude that the company intended to continually engage in business or non-profit activities within the Republic (section 23(2)).

4.8.4 When applying section 23(2)(b), a foreign company must not be regarded as “conducting business activities, or non-profit activities, as the case may be, within the Republic” solely on the ground that the foreign company is or has engaged in one or more of the activities referred to in the said section.

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4.8.5 It is uncertain, in terms of section 23(2) read with section 23(2A), whether a foreign company can acquire immovable property or be a mortgagee without being registered as an external company. Registrars’ Conference Resolution 47 of 2011, therefore, provides that a foreign company can acquire property or act as mortgagee, provided the conveyancer provides the registrar of deeds with documentary evidence (for example an auditors certificate or affidavit from a director of such foreign company) to the effect that the company need not register as an external company, in terms of section 23(2) of the Act.

4.8.6 The following descriptions of an external company (a foreign company that has been registered in South Africa) are acceptable:

4.8.7 A company that does not need to register as an external company in South Africa, must be described by referring to its name and registration number as reflected on its registration certificate or similar document.

4.9 Practice regarding winding-up and liquidation of companies

4.9.1 Item 9 of Schedule 5 to the Act provides that the provisions of Chapter 14 of Act 61of 1973 to apply as if it had not been repealed, until a date to be determined by the Minister responsible for companies.


BlueMountainProprietaryLimited Registration number 2011/000678/10 (Incorporated in Australia)

BlueMountain(Pty)Ltd(RF) Registration number 2011/000678/10 (Incorporated in Australia)

(In the case of a public company) BlueMountainLimited Registration number 2011/000678/10 (Incorporated in Australia)

BlueMountainLtd Registration number 2011/000678/10 (Incorporated in Australia)

(where the name of the external company is a foreign registration number) 15789456 (Canada) Registration number 2011/000678/10

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4.9.2 In terms of Item 2(3) of Schedule 5 to the Act, sections 49(5) to 49(7) of Act 61 of 1973 apply to the description of companies that were engaged in any winding-up or judicial management procedures immediately before 1 May 2011. Therefore, where deeds are lodged for registration in instances where a company is in liquidation, voluntary liquidation or under judicial management, the words “in liquidation”, “in voluntary liquidation” or “under judicial management” must still form part of the description of the name of such a company, if such proceedings were started before 1 May 2011.

4.9.3 The Act (transitional arrangements) only refers to companies where the liquidation procedure was initiated while Act 61 of 1973 was in operation. Therefore, the words “in liquidation” or “in voluntary liquidation” must still be added to the description of a company that is in liquidation or in voluntary liquidation after 1 May 2011.

4.9.4 The following descriptions must be followed:

4.10 Practice regarding business rescue proceedings

4.10.1 Section 155 of the Act deals with a compromise between a company and its creditors irrespective of whether or not it is financially distressed as defined in section 128(1)(f), unless it is engaged in business rescue proceedings in terms of Chapter 6.

4.10.2 Proof of the appointment of a business rescue practitioner, as referred to in section 129 of the Act, must be lodged where business rescue proceedings are applicable.

4.10.3 The power of attorney to pass transfer, must read along the following lines:

Type Citation Explanation

“in liquidation” ABC(Pty)Ltd(inliquidation)Registration number 2011/000123/07

Before or after 1 May 2011

“in voluntary liquidation”

ABC(Pty)Ltd(involuntaryliquidation)Registration number 2011/000123/07

Before or after 1 May 2011

“under judicial management”

ABC(Pty)Ltd(underjudicialmanagement)Registration number 2011/000123/07

If placed under judicial management before 1 May 2011

Jan van der Merwe, in my capacity as business rescue practitioner of ABC(Pty)Ltd,Registrationnumber:2008/049786/07,

duly appointed by the board of directors on .......................... in terms of * section 129(3)(b) of the Companies Act 71 of 2008 / court order in terms of section 131(5) of the Companies Act 71 of 2008,

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• The vesting clause of a deed must not make reference to the fact that the company is under business rescue proceedings.

5. OFFICE FEES

The Office Fee as prescribed in Item 1(d) of the Schedule of Fees of Office in Regulation 84 of Act 47 of 1937, is payable in respect of an endorsement referred to in par. 4.4. to par. 4.7.


as will appear from Notice of Appointment of business rescue practitioner filed with the CIPC on ...................................

* Delete whichever is inapplicable

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COLLECTIVE INVESTMENT SCHEMES CONTROL ACT, 2002 (ACT NO. 45 OF 2002) CHANGE OF TRUSTEE

1. VESTING OF IMMOVABLE PROPERTY IN RESPECT OF COLLECTIVE INVESTMENT SCHEMES AND CHANGE OF TRUSTEE

1.1 The vesting of immovable property of a Collective Investment Schemes (‘CIS’) is discussed in paragraph 4 of Chief Registrar’s Circular No. 21 of 2003. The said circular provides for CIS property to vest in such a manner that the trustee company of the said CIS is identifiable, for instance:

ABC Limited, registration number yyyylxxxxxx/06, as trustee for XYZ Collective Investment Scheme in property;

or

GEF (Pty) Ltd / Limited registration number yyyylxxxxxxlnn, as nominee company of ABC Limited, trustee for XYZ Collective Investment Scheme in property.

• (Amaximumof150characterscanbeused-acharacterincludesatypographical characterandaspace)

1.2 The purpose of this circular is to address the procedure that needs to be followed with regard to the endorsing of title deeds/bonds to reflect the appointment of new trustees of CIS’s.

2. PROCEDURE TO FOLLOW IN DEEDS REGISTRIES WITH REGARD TO CHANGE OF TRUSTEE OF COLLECTIVE INVESTMENT SCHEMES

2.1 When the appointment of a trustee is terminated, such trustee must submit a report to the Registrar of Collective Investment Schemes stating, amongst other things, the reason for the termination of the appointment (section 68(3) of the Collective Investment Schemes Control Act, 2002 (Act No. 45 of 2002) (‘the Act’)). In terms of section 69(2)(b) of the Act, a trustee must be registered by the Registrar of Collective Investment Schemes as a trustee of a CIS.

2.2 The following documentation must be lodged in a deeds registry in order to provide for the endorsement of title deeds/bonds to reflect a change of a trustee of a CIS:

2.2.1 an application in terms of section 3(1)(v) of Act No. 47 of 1937 for the endorsement of the relevant title deeds/bonds. The said application must contain complete information of the termination / appointment of the trustee;

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2.2.2 the relevant title deeds/bonds (also see par. 3);

2.2.3 proof of the termination of the appointment of the trustee referred to in the relevant title deeds / bonds; and

2.2.4 proof of the registration of the ‘new’ trustee in terms of section 69(2)(b) of the Act.

2.3 The relevant title deeds / bonds must be endorsed along the following lines:

“Endorsementintermsofsection3(1ter)oftheDeedsRegistriesAct,1937(ActNo.47of1937): The appointment of * ................................................................................................... as trustee of ......................................................................... (state name of Collective Investment Scheme) has been terminated with effect from ........................................................................ (state date of termination).

**........................................................................................ is appointed as trustee with effect from ................................................ (state date of appointment).


* state name of trustee whose appointment has been terminated ** state name of newly appointed trustee

3. ENDORSEMENT OF DEEDS / BONDS ON PIECE MEAL

3.1. Where it is not practically possible to provide for the simultaneous lodgement of all the relevant title deeds / bonds in a specific deeds registry, a caveat must be noted, against the name of the CIS, to the effect that all the relevant title deeds / bonds must be endorsed, whenever lodged in the deeds registry for whatever purpose, to indicate the change of a trustee.

3.2. Conveyancers must be requested to approach the Chief Registrar of Deeds for the issuing of a Chief Registrar’s Circular to allow for the endorsement of deeds, on a piece meal basis, in instances where numerous title deeds / bonds registered in most of the deeds registries, need to be endorsed to reflect a change of a trustee of a CIS.

4. OFFICE FEES

An office fee is payable in respect of an endorsement referred to in par. 2.3.

5. APPLICATION OF THE CIRCULAR

This circular must be read in conjunction with CRC’s 15 and 21 of 2003.


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ALLEN WEST heads the Deeds Training Section of the Directorate: Training and Legal Support in the Department of Rural Development and Land Reform. He is the co author of numerous other books on conveyancing. He has published more than one hundred articles in leading journals and regularly publishes articles on GhostDigest. Allen is also a lecturer extra ordinary at the University of Pretoria and a moderator of conveyancing subjects at Unisa. He

has presented courses for the LSSA since 1984 and presently also serves on the following boards: Sectional Title Regulation Board, Deeds Registries Regulation Board, and Registrars Conference

Allen is the editor of the South African Deeds Journal (SADJ), since its inception in 2003.

Allen obtained his qualifi cation (NDRD) from Unisa and has also studied at the University of Wisconsin Madison.

ISBN 978-0-9921953-0-4

THE PRACTITIONER’S GUIDE TO

CONVEYANCING AND NOTARIAL PRACTICE