South Africa’s Land Registration System - Then & Now
The roots of our registration of land system lie in the history of the Netherlands and the coming of the Dutch settlers to South Africa. Our system is therefore based on 16th century Dutch Law with later influences of English Law which have evolved into the system we have today.
In terms of Dutch law it was laid down that the alienation of land had to be executed in the presence of the commander of his delegates. And later it was to be executed before two members of the Court of Justice which took charge of the formalities prescribed for the transfer of all immovable property.
Initially there were no real registration of title deeds. In 1686 Simon van der Stel made the registration of deeds compulsory in South Africa. This was essential as prior to 1686 there were owners who had lost, or whose title deeds were destroyed and could not be replaced, as there was no official record of identifying land ownership in the country. The same year the official register of deeds came into existence and transfer duty on immovable property was also instituted.
According to the first deed of transfer that could be tracked down (which was dated 12 October 1658) both the transferor and the transferee had to appear before the court and both signed the deeds in the presence of the court secretary and a seal in red wax was then affixed to the title deed.
This method later progressed and during the 1800’s the parties had to appear before the State Secretary who was the official conveyancer. The deeds were prepared under the supervision of the secretary and the parties would then, every week on a Friday, appear before the court and the main points of the deed would then be quoted. The deeds, which had to be in duplicate, were then handed over to the judge who briefly scrutinized them. Upon signature of the judge the deeds obtained legal force. The parties would then leave the room and the next group would come in and the procedure was then repeated until all deeds that were ready for execution had been completed.
Each one of these deeds was accompanied by a certificate from the ‘Receiver of Tithes’ for Transfer Duty to prove that transfer duty had actually been paid. For the Cape, Transfer duty was payable within 4 months from the date of the transaction. For all the other provinces it was to be paid within 6 months from the date of the transaction.
In 1828 the post of the Registrar of Deeds was created and the process then evolved into the three consecutive stages, for the establishment of a valid deed of transfer or bond being: “preparation”, “execution” and “registration” which stages were to be regulated by the Registrar of Deeds. These 3 stages are, to this day, still applicable to the current registration process.
In 1886 in the matter between The Cape of Good Hope v Fischer, it was confirmed that a conveyancer must obtain a power of attorney from the seller, together with a deed of transfer and proof of the quitrent (tax) payment as well as the title deed of the previous owner to compile a new deed for the buyer. Today a ceremony before a judge is no longer required, but deeds of transfer and mortgage bonds must still be signed ‘in the presence’ of the Registrar of Deeds. We still keep a register for properties but the system is a lot more comprehensive now that it ever was in the past.
Currently, the deeds registration process is a manual preparation and lodgment process as set out in the Deeds Registries Act 47 of 1937 and the Sectional Titles Act 95 of 1986.
With the development of the internet, e-commerce and computerisation of many processes, there has been a growing demand for electronic service delivery in all aspects of business.
In 2017 Parliament tabled the Electronic Deeds Registration Systems Act (EDRSA) (“the Act”) and same was subsequently signed into law on 2 October 2019. Currently, only section 2 of the Act is operational which requires that the Chief Registrar of Deeds needs to establish and maintain an electronic deeds registration system to use information and communications technologies for the preparation, lodgement, registration, execution and storing of deeds and documents. The Office of the Chief Registrar of Deeds therefore embarked on a project for the implementation of e-commerce principles in the deeds registration process in order to facilitate an Electronic Deeds Registration System (e-DRS).
The aim of the EDRSA will mostly be to promote security of title, to improve turn-around times for registration, to allow country-wide access to registration services, to provide overall availability of information and to enhance the accuracy of information.
Ultimately the Act enables a process that will have the effect that deeds can be electronically executed or registered, and such deeds “shall be deemed to have been executed or registered in the presence of the Registrar by the owner or by a conveyancer authorised by power of attorney to act on behalf of the owner”.
Many of the commercial banks in the country have also started to implement a system in terms of which the bond registration documents can be signed electronically. These processes are however still in the developing stages and have not yet become compulsory for all of the banks, however, in light of the current situation our country finds itself in, it is clear that the need for this will become even greater in the immediate future.
It still stands however that one of the major advantages of South Africa’s land registration system is that you can easily ascertain who owns a specific piece of land and if you want to purchase a property you can merely inspect the records held in the deeds registry which holds a great deal of information iro the property including the description, size and conditions under which it is held as these records are open for inspection by the public.
For assistance in obtaining records from any one of the deeds offices nationally, please do not hesitate to contact our offices.
LYNDA CHANTLER ATTORNEY & CONVEYANCER
B.COMM LL.B (University of Stellenbosch) ASSOCIATE AT VAN ZYL KRUGER INC |
Provided by Van Zyl Kruger
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