Secure Land Ownership: Deeds Registries Act Amendment for Title Guarantee

1. DEPARTMENT OF RURAL DEVELOPMENT & LAND REFORM DEEDS REGISTRIES AMENDMENT BILL [B13-2010] Presentation to the Select Committee on Land and Environmental Affairs 31 August 2010 CAPE TOWN

2. The Deeds Registries Act, 1937 (Act No 47 of 1937) (“the Act”) is the legislation that governs the registration of deeds. In South Africa, the law does not explicitly guarantee title to land. The system of deeds registration is based on a juristic foundation and long-standing practices and procedures. It is this system which has the effect of ‘‘guaranteeing” title. 2 Background

3. Background cont. • The system’s processes of examination, registration, monitoring of standards, keeping a public register, and preservation of records, all contribute towards providing security of title in the eyes of the law, financial institutions, and the public. 3

4. Background cont. • A Deeds Registries Regulations Board (DRRB), established in terms of section 9(1) of the Act, has the power to make recommendations to the Minister and to advise the Minister on any matter referred to the Board by the Minister. • The following amendments reflect the recommendations of the DRRB: 4

5. Sections 2 and 3(1)(z) Registrars of deeds are currently not legally obliged to follow the practice and procedure directives that are issued by the chief registrar of deeds. Problems encountered The above state of affairs results in different practices and procedures being followed in the different deeds registries, a situation that confuses deeds examiners as well as conveyancers.5 Clauses 1(a), (b) and 2(b) of the Bill

6. Clauses 1(a), (b) and 2(b) of the Bill cont. • Proposed amendment The amendment of section 2 as proposed in clauses 1(a) and (b) of the Bill, as well as the insertion of section 3(1)(z), as proposed in clause 2(b) of the Bill, aims to legally oblige registrars of deeds to follow the practice and procedure directives that are issued by the chief registrar of deeds so as to ensure uniformity in all the deeds registries throughout the country. 6

7. Section 3(1)(u) Section 3(1)(u) of the Act contains reference to the registrar of mining titles; but the Mineral and Petroleum Resources Development Act, 2002 (Act No 28 of 2002) provides for the discontinuation of the registration of mineral rights in a deeds registry. Proposed amendment The amendment of section 3(1)(u), in Clause 2(a) of the Bill, is necessary to reflect the correct position with regard to the discontinuation of the registration of mineral rights in a deeds registry. 7 Clause 2(a) of the Bill

8. Clause 2(a) of the Bill cont. • Section 3(1)(u) further contains reference to the “Supreme Court”, instead of the “High Court”, as contemplated in the Constitution of the Republic of South Africa, 1996. • Proposed amendment The amendment of section 3(1)(u), to make reference to the “High Court” (previously ‘Supreme Court’), is a necessary and consequential amendment. 8

9. Section 9 The Act does not provide for the appointment, by the Minister, of alternate members to the Deeds Registries Regulations Board (‘DRRB’). Problems encountered It often happens that members of the DRRB cannot attend meetings due to unforeseen circumstances. The absence of members to a meeting may lead to a quorum not being formed and the meeting being cancelled. 9 Clause 3 of the Bill

10. Clause 3 of the Bill cont. • Proposed amendment The proposed amendment in Clause 3 of the Bill is necessary to prevent the cancellation of DRRB meetings due to a lack of a quorum which will ultimately also save costs. 10

11. Section 17(2) Section 17(2) of the Act provides for the disclosure of the full names and marital status of a person in a deed that needs to be executed, registered or recorded in a deeds registry. Problem(s) encountered The Act does not provide for the above details to be disclosed in documents such as consents, applications, etc. This situation may lead to fraudulent registrations. 11 Clause 4 of the Bill

12. Clause 4 of the Bill cont. • Proposed amendment Clause 4 of the Bill proposes that the full names and marital status of a person be disclosed in all deeds and documents that need to be executed, registered, or recorded by a registrar of deeds. 12

13. Section 34 Section 34 of the Act allows an owner of a piece of land to apply for a certificate of registered title for his/her undivided share in land, in instances where such land is owned in joint ownership. Problems encountered Currently no mechanism in the Act allows an owner of land to obtain a title deed of any fraction of his/her undivided share in such land (for instance “1/52 share in erf 2003, Cape Town”). 13 Clause 5 of the Bill

14. Clause 5 of the Bill cont. • Proposed amendment The proposed amendment of section 34, in Clause 5 of the Bill, caters for the issuing, to any owner, of a certificate of registered title of any fraction of his/her undivided share in such land. 14

15. Section 102 – definitions The definition of ‘Master’ contains reference to the ‘Supreme Court’; and the definition of ‘Minister’ refers to a previous title . 15 Clause 6 of the Bill

16. Clause 6 of the Bill cont. • Proposed amendment(s) • The amendment of the definition of ‘Master’, in Clause 6 of the Bill, is consequential to the change of name of the High Court as contemplated in the Constitution of the Republic of South Africa, 1996. • Clause 6 of the Bill also seeks to express the correct title of the Minister in view of the recently appointed Cabinet members. 16

17. Clause 7 of the Bill contains the short title. 17 Clause 7 of the Bill

18. DEEDS REGISTRIES AMENDMENT BILL 2010 THE END! THANK YOU! 18