DEEDS REGISTRIES ACT, 1937 (ACT NO. 47 OF 1937) AMENDMENT OF REGULATIONS
1. COMMENCEMENT OF AMENDED REGULATIONS
The amended regulations, published under Government Notice No. R. 62 in Government Gazette No. 42186 dated 25 January 2019, shall be effective from 25 February 2019.
2. NATURE AND/OR IMPACT OF THE AMENDMENTS
2.1. Amendment of regulation 68:
2.1.1 The amendment to regulation 68(1), now provides for the attestation of an affidavit by notaries public only. This however, on reconsideration, is impractical and may cause undue hardship to the public.
2.1.2 Due to an increase in fraudulent transactions a need has arisen for stricter procedures in respect of the issuing of copies as provided for in regulation 68 of the Act. Tne insertion of regulation 68(1E)(a) to (c), to provide for publication in a Goverment Gazette, aims to address this problem. However, Government Gazettes are not widely read and the Board has therefore decided to amend regulation 68(1E)(a) to provide for publication in a newspaper circulating in the area in which the property is situated, and not in a Government Gazette.
2.1.3 The amendment of regulation 68(11), by making reference to regulation 68(1E), was an oversight. It was intended that notification of the intention to apply for a certified copy of the bond be published and not notification of the intention to cancellation of the bond itself.
*In view of the above, the Deeds Registries Regulations Board at a meeting on 19 February 2019, resolved to suspend the implementation of the amendments to regulation 68, as referred to above, until further notice.
2.2. Amendment of Form E:
Form E currently provides for the purchase price of a property to be reflected in a deed of transfer. However, transfer of property may be as a result of donation, estate transfer, etc. which does not involve a purchase price. The amendment of Form E caters for reference to be made to transactions other than sale agreements.
2.3. Addition of Forms JJJ and KKK:
The addition of Forms JJJ and KKK are consequential to the amendment of regulation 68 and are accordingly also suspended until further notice.
3. IMPLEMENTATION OF AMENDED REGULATIONS
The amendment of Form E must be applied only to deeds lodged on or after the date of commencement thereof (25 February 2019).
Just a question: Does the Deeds Registries Regulations Board have the authority to suspend the implementation of the amendment to Regulation 68?
Dave your comment is a valid one. Should a practitioner now, based on the CRC, not adhere to the Regulation and a title is fraudulently issued without such compliance, can such practitioner be held liable? Would like to hear the opinion of Practitioners.
I have the same concerns as Dave Samuel. And to answer your question, Allen, I do not think for one moment that a practitioner who disregards the amended regulation, and follows the CRC instead, will escape liability for a damages claim if it turns out that the regulation 68(1) application (and the subsequent transfer or mortgage bond or other transaction) was fraudulent. Practitioners who ignore the amended regulation do so at their peril.
But if there is persuasive authority on why I, Dave Samuel, Allen West and many others are wrong on this, please let us have that authority. We really need it urgently. And what about the liability of the Registrar or any examiner who turns a blind eye to the amended regulation? What about section 99 of the DRA? Would an examiner who disregards the amended regulation have exercised ''reasonable care and diligence'' in carrying out his/her duties if that examiner ignores an amended regulation in favour of a CRC? Could that not be construed as mala fide?
I would like to place on record that I objected to this new procedure right from the outset, and that as soon as it became clear that a decision in principle had been taken to amend the regulation, I suggested a via media to the effect that a choice be given: advertise OR sign before a notary - but not both. As much as I would like to follow the CRC, I think it is reckless to do so. I would also like to hear the views of other practitioners, and I would dearly like to be proved wrong on this.
Another point: Can the Registrar be held liable if a conveyancer follows the circular and title is issued fraudulently - see Stirling vs Fairgate and Registrar of Deeds and others.
How can you adhere to the regulation when the authority that conceived it does not enable compliance? How can you advertise that something is lying for inspection when you know full well it is not? This regulation was a knee-jerk reaction without proper consideration or consultation.
My understanding is that a regulation is inferior to a legislation. As such a regulation (being a sub legislation) cannot usurp the provisions of legislation. Based on my understanding of interpretation of statutes it seems that the CRC is invalid as the CRC should be inferior to a regulation which is issued by the Minister in terms of the Deeds Registries Act. I was amazed when I heard of the CRC.
Might CRC 1 of 2019 just be a further desperate attempt to conceal? All seems not well at the Deeds Office - no practical documentation forthcoming notwithstanding precise and detailed requests for information KNOWN to exist and the pledged promise that cooperation is guaranteed. There is also the outstanding explanation of the real purposes of CR 12 of 2007, CRC 11 of 2014 and then CRC 14 of 2014 (a convenient 4 months later) - all of having impact on the securiti(z)sation of mortgages. The tap dance is over - take note of ABSA vs MOORE. Bonds paid are bonds canceled and marked PAID, same for "title deeds". Is this another "captured corner" let's hope not, the implications are catastrophic!