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Deeds Registries Bill

10 April 2008

MEMORANDUM ON THE OBJECTS OF THE DEEDS REGISTRIES AMENDMENT BILL, 2008

1. PURPOSE

The Deeds Registries Amendment Bill, 2008 (hereinafter referred to as "the Bill") proposes certain amendments to the Deeds Registries Act, 1937 (Act No. 47 of 1937) (hereinafter referred to as "the Act"), pertaining to the substitution of certain obsolete expressions and the improvement of the application thereof as set out in this memorandum.

2. OBJECTS OF THE BILL

2.1.1 The amendment proposed in Clause l(a) of the Bill is consequential to the promulgation of the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002), which provides for the discontinuation of the registration of mineral rights in a deeds registry. The substitution for the expression of "Supreme Court" with the expression of "High Court" seeks to rectify the present legal situation with reference to this Court.

2.1.2 Registrars of deeds are not obliged to follow the practice and procedure directives that are issued from time to time by the chief registrar of deeds. The result is that different practices and procedures are being followed in the different deeds registries. The amendment proposed in Clause 2(l)(b) of the Bill seeks to eliminate this problem by obliging registrars to comply with directives and thus promote uniformity in all the deeds registries throughout the country.

2.2. 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 in or lodged for registration or record in a deeds registry. The proposed amendment of section 17(2) in Clause 2 of the Bill is also necessary to provide for the disclosure of the full names and marital status of a person in documents other than deeds, that need to be executed or attested by a registrar of deeds.

2.3.1. Section 38(1) of the Act makes provision for the issuing of a certificate of registered title in instances where the original title deed of land has been lost or destroyed and the registry duplicate of such title deed has also been lost or destroyed. The section, however, does not provide for the issuing of a certificate of registered title where the title deed of a registered real right in immovable property and the registry duplicate of such title deed have both been lost or destroyed. The proposed amendment in Clause 3(a) of the Bill seeks to enable a registrar to issue a certificate of registered title in such instances as well.

2.3.2. Section 38(2) of the Act provides for the publication of a notice in two consecutive issues of the Gazette and in two consecutive issues of a newspaper printed in the division, district or county in which land is situated, of a registrar's intention to issue a certificate of registered title. The proposed amendment of section 38(2) in Clause 3(b) of the Bill seeks to simplify and facilitate the publication of the notice. In many divisions, districts or counties no newspapers as contemplated by the subsection are printed. However, newspapers printed in other areas are circulating within the specific areas.

2.4. The Act does not provide for any measures in instances where the original registered mortgage bond and the registrar's duplicate thereof have been lost or destroyed. The insertion of section 60A as proposed in Clause 4 of the Bill now creates a mechanism whereby such a lost or destroyed mortgage bond can be replaced, which will obviously also contribute towards mortgagees' peace of mind in respect of their security.

2.5. The amendment of the definition of 'Master', as proposed in Clause 5 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.

Deeds Registries Amendment Bill 2008

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