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Fact or fiction?

23 April 2009

It has always been held that South Africa has one of the best land registration systems in the world, if not the best. Our system of land registration guarantees title and only a court of law can cancel the title to land. This having being said, the case of Prophitius and Another v Campbell and Others [2008] JOL 21372 (D) has now thrown a cat amongst the pigeons.

It is not endeavoured in this article to regurgitate the facts of the case, but merely to issue a stern warning that the holder of a title to land may no longer have the security of a title that was always anticipated.

In this particular case, the same property was registered by different titles in different owners' names. The Registrar of Deeds, one of the respondents of the case, informed both parties that the Deeds Registry cannot make a determination as to who the rightful owner of the property is, and requested the parties to approach the court for a determination of the rightful owner. This is in itself a sad state of affairs.

The court held that the initial owner had committed fraud by selling the same land to both parties. The court further held, based on the principle of qui prior est tempore potior est jure, that the parties who obtained first transfer are the true owners of the property.

The court thus instructed the Registrar of Deeds to amend the records of the Deeds Registry, thereby expunging from the records the owners of the land not entitled thereto, and reflect that the first owner is the rightful owner of the land.

This instruction by the court leads to another confusing situation as to how the Registrar of Deeds, being a creature of statute, will give effect to the instruction of the court.

It is clear that section 6 of the Deeds Registries Act cannot be applied, as there is no previous title that can be revived. The question thus begging an answer is: How will the Deeds Registry records be amended?

Given the facts and the findings of the judge, can one, as an owner of land, sleep soundly at night or must the following words by the judge provide nightmares: - "I do have considerable sympathy for the fourth respondent who has only the solace of an action for damages …"

Your be the judge

Republished with permission from the SA Deeds Journal

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