FILTERS:

Interpretation

27 September 2007

From the outset, cognisance must be taken of the fact that, where a township register is opened in respect of land that is subject to a mortgage bond, the effect thereof is to render each erf in such a township subject to the relevant bond.

In this regard, see Section 46(2) of the Deeds Registries Act 47 of 1937, which reads as follows:

"(2) For the purposes of registration of such a general plan, the title deed of the land which has been subdivided shall be produced to the registrar with the diagram thereof and any mortgage bond endorsed on the title deed and the mortgagee's consent to the endorsement of such bond to the effect that it attaches to the land described in the plan."

As a corollary, mortgaging land in respect of which a township register has been opened has the effect of mortgaging every erf still held under the relevant township title.

In short, opening a township register on a farm has the effect of converting a farm into a township, in that, from a registration point of view, the farm ceases to exist. This, in other words, means that once a township register has been opened, it becomes impossible to deal with the former farm as the same ceases to exist.

Turning to the interpretation of section 101(4) of the Ordinance, it will be noted that the section refers to 'any land situated in the township'.

This, naturally, would include erven and streets in the township, as well as the entire land comprising the township.

It is evident that the entire land on which a township has been established cannot be excluded from the words 'any land situated in the township'.

It must be pointed out, therefore, that mortgaging the farm, now known as a township, would have the effect of mortgaging all the erven in the township, which fall squarely within the ambit of the words 'any land situated in the township'.

Should the wider interpretation be given to the provisions of Section 101(4), in that a mortgage bond can be registered over the farm subsequent to the opening of the township register, it would be contrary to the clear provisions of Section 101(4) and, therefore, lead to absurdity, which the legislature could not have intended.

Readers' responses will be appreciated - Editor

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