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Computation

13 August 2009

The computation of the duration of days relating to registerability of deeds and documents can often be a nightmare for both conveyancers and deeds examiners alike. Any mistake in this regard can be extremely costly for all parties concerned.

Although the law seems clear on this issue it often occurs that the facts or circumstances are not as clear cut as is desired, and some interpretation is required. The law makes a distinction between various methods of computation of time. There is what is referred to as the Common law method, and the statutory method of computation of the duration.

The common law method of computation distinguishes between natural computation, ordinary civil computation and extraordinary civil computation methods.

In terms of the natural computation method, the period is calculated from the minute or hour it starts up to the corresponding minute or hour of the last day of the period mentioned. The ordinary civil computation method, on the other hand, prescribes that the first day of the period is included, but the last day is excluded. Which means the act must occur before such day or it will be invalid. In terms of the extraordinary civil method of calculation, both the first and the last days are included in the calculation of the period.

In terms of Section 4 of the Interpretation Act, 33 of 1957, whenever any particular number of days are prescribed for the doing of an act, same shall be reckoned exclusively of the first day and inclusively of the last day, provided that where the last day happens to fall on a Sunday or public holiday then the calculation shall exclude such last day also. Cognizance must be taken that the section refers to days and not months. It therefore appears that the section will only be applied where the period is expressed in days and not months, unless it is otherwise clear that the intention by the contracting parties or lawgiver was to depart therefrom. The provisions of Section 4 are interpreted restrictively since they differ from the common law. Where Section 4 was found not to apply, our courts had followed the ordinary civilian method since it is more in line with the common law.

This is of the utmost importance to transactions of which the validity depends on the registration thereof within a prescribed time period. The application of the wrong method may be disastrous. The application of the one method to calculate the time period will render a different result from application of the other method. It is therefore of crucial importance to know which method is applicable under which circumstances.

This brings us to the situations which examiners and conveyancers are faced with daily in deeds registration. The two transactions, dependent on a time period, are the registration of an antenuptial contract and the registration of a notarial bond.

Section 61 of the Deeds Registries Act (Act 47 of 1937) provides as follows:
"(1) Every Notarial bond executed before or after the commencement of this Act shall be registered within the period of 3 months after the date of its execution or within ……". Section 87 relating to the registration of an antenuptial contract is also similarly worded. The said section further provides that where such antenuptial contract was executed outside of the RSA, then it shall be registered within 6 months after such date or again within such period as the court may on application allow. The dilemma that faces examiners of deeds and sometimes the conveyancers is how that period is to be computed. In attempting to find an answer one must utilise the Interpretation Act, Case Law and Registrars' Conference Resolutions.

According to section 1 of the Interpretation Act, a month is defined as a calendar month. The courts have defined calendar month as the corresponding day of the following month provided that such last day may be included or excluded depending on the computation method preferred (vide S v Mogale 1989 (4) SA (W) 591, Engelbrecht en 'n Ander v Vaalblok Ondernemings BK 1990 (1) SA 676 (T)) and Makhutchi NO v Minister of Police 1980 (2) SA 229 (W).

In an attempt to clarify the Deeds Registry position on this issue the Registrars decided in RCR 6 of 1991 that the period relating to the three months shall be calculated including the first day and excluding the last day. Thus, in the application of the provisions of section 61 and 87 of the Act, the period shall be calculated using the ordinary civilian method. The result is that if a deed has to be registered within 3 months after its execution and it was executed on the 29th January 2009, such deed will have to be registered by no later than the 29th April 2009. This period is computed in such a manner that the 3 month period should start a day after the 29th January, i.e. the 30th January, since the first day (after the execution) is to be included and in fact ends on the 30th April. However, as the last day is excluded the period effectively ends on the 29th April, by which date the deed must be registered. The same applies to where such last day happens to fall on a public holiday or on a Sunday, since such a day will be excluded anyway. The fact that the month of February may not have the corresponding dates of the following month, as defined by the courts, will also not have a bearing on the computation since a calendar month (as defined) will be followed.

This position is clearly in contrast with the statutory method of computation of time as contained in Section 4 of the Interpretation Act, in terms whereby the first day of the period is excluded and the last day included. It is also in line with the court decisions regarding the calculation method of preference where no particular method is prescribed by the parties or by legislation (South African Mutual Fire and General Insurance Co. Ltd v Fouche en 'n Ander 1970 (1) SA 302 (A)). Furthermore, the Interpretation Act cannot be followed since the prescribed period is not mentioned in days but months. The wording of the relevant clause also plays a very important role since it may determine the day from which the calculation commences. If it is worded in such a way that the period starts from a certain date or after a certain date, it may result in different dies cedit even if the same method of computation is applied.

In the circumstances it is still important to consider the exact wording of the clause that is sought to be applied in order to come to the correct date by which an event must have occurred.

Republished with permission from SA Deeds Journal

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