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Intricacies

19 July 2007

Introduction
The application of section 4(1)(b) of the Deeds Registries Act 47 of 1937 ("the Act") provides headaches for practitioners and examiners alike. At present, there is no uniform practice in the application of the section and it is left mostly to the discretion of the Registrar (see RCR 11 of 2001 para 2.1). Unfortunately the Registrars do not exercise this discretion, but it is delegated to the approximately 200 examiners, who each hold their own view on the application thereof. As far back as 1953, a conference held that only patent clerical errors should be the subject of an amendment in terms of section 4(1)(b) (see RCR 4 of 1953).

In this note it is envisaged to provide guidelines as to the application of section 4(1)(b) and as far as possible to substantiate with authority.

Who may apply?
The Act does not require an application or an affidavit to effect the amendments of an error in registration. However, it has become established practice that an application in the form of an affidavit is lodged.

Where the application is in the form of an affidavit, an agent cannot bring the application on behalf of his or her principal. The owner or holder of the right must make the affidavit himself/herself. Should any agent bring the application, an affidavit can be dispensed with, provided documentary evidence can be provided to the Registrar to substantiate the correctness of the facts to be rectified. Similarly, a representative of the owner, such as an executor, trustee, curator, etc., cannot make the affidavit. The application can merely be brought by such a representative.

Where the registered owner is insolvent, and his/her trustee applies for the rectification of an error to the personal particulars of such insolvent, the insolvent must be joined as an applicant or must grant consent to the amendment. Alternatively, proof must be provided as to the correct state of affairs, for example a certified copy of the identity document must also be lodged. So too, when an executor applies for the amendment of the personal particulars of a deceased, no affidavit in this regard is acceptable from the executor, but proof must be lodged of the correct state of affairs. It is contended that, irrespective of the definition of owner in section 102 of the Act, the representative does not have the knowledge to make an affidavit regarding the personal particulars of the person he/she is representing.

In summary, it can be said that the application for an error in registration can be brought by an agent, such as the conveyancer or a representative, but documentary proof of the true state of affairs will have to accompany the application, should it relate to personal particulars such as names, identity numbers, status, etc.

What can be rectified?
Section 4(1)(b) allows for the rectification of an error in registration in any deed or document pertaining to:

+ the name or the description of any person;
+ the name or description of any property;
+ conditions affecting such property.

With regard to the rectification of the description of any person, Chief Registrars Circular 3 of 1994 provides as follows:

"2.3 Section 4(1)(b) of the said Act provides for the rectification of an error in the name or the "description" of any person, provided certain conditions are met. The marital state, whether the marriage was concluded in or out of community of property and even the names of the spouse are all part of a person's description (see section 17(2)(a), (b) and (c)), therefore section 4(1)(b) of the Act can be applied to rectify an error in such a description. Similarly, in the case of a person described as unmarried but who in actual fact is a widow/divorcee, etc., this can also be amended to rectify the position.

3. Whenever section 4(1)(b) of the Act is to be considered as above, the principles laid down in Ex Parte Menzies et Uxor 1993 (3) SA 799, must be kept in mind. Apart from these considerations, it must also be established whether such an amendment would not result in a contravention of any other law, e.g. the Subdivision of Agricultural Land Act, 1970 (Act No. 70/1970) and the Advertising on Roads and Ribbon Development Act, 1940 (Act No 21/1940).

4. If the deed to be amended is mortgaged by a registered mortgage bond, such an amendment must not invalidate the bond. To comply with, for example, the provisions of section 15 of the Matrimonial Property Act, 1984 (Act No 88/1984) and to renounce the legal exception de duobus vel pluribus reis debendi, it is recommended that a "substituting" bond be registered in lieu of the existing bond, which is to be cancelled simultaneously."

The provisions of section 4(1)(b) of the Act can thus only be applied if it would not have the effect of transferring any right (section 4(1)(b)(iv) of the Act). The sworn affidavit must make clear mention of this fact, and if it does not, a certificate to that effect must be requested from the relevant conveyancer (see RCR 39 of 1958).

It is thus clear that, should the status of a person be amended, which would result in the increase of shareholders, the provisions of the Subdivision of Agricultural Land Act 70 of 1970, The Agricultural Holdings Act of 1919 and the Advertising on Roads and Ribbons Development Act 21 of 1940 must be borne in mind, as the provisions of these Acts might be contravened. In the same vein, the title conditions might also prohibit the increase in shareholders without the necessary consent.

Minor errors in the property description can be rectified. However, should the erf number be rectified to disclose another erf, the application must be considered with caution, as the same might have the effect of transferring a real right. It would be wise to call or lodge the original deed of sale to prove that the amendment to the erf number is not tantamount to the transferral of a right (see RCR 8 of 2003).

Where the rectification of the description of parties has the effect of increasing the mortgagors, or where the initial registration necessitated the compliance of section 15(2)(a) of the Matrimonial Property Act 88 of 1984 or the waiver of the legal exception de duobus vel pluribus reis debendi, the rectification will not be permitted. The bond will have to be cancelled and a new or substituted bond will have to be registered.

Where a cost clause of a mortgage bond was initially omitted or reflects the incorrect amount, such error in registration cannot be effected by an application in terms of section 4(1)(b) or a variation in terms of section 3(1)(s). The bond will also have to be cancelled and a new bond registered. This applies mutatis mutandis to the amount of the bond (see RCR 9 of 2003).

Incorrect township conditions can be substituted with the correct conditions, provided that proof in this regard can be provided (see Ex parte Kacholi Anjuman Islam 1945 (2) PHK 123 as confirmed by RCR 37 of 1949.

Although there is no provision in the Act for the amendment of an erroneous purchase price in a deed, a registrar of deeds may affix a suitable endorsement to the deed if sufficient proof has been submitted by him/her (RCR 4 of 1958 as confirmed by RCR 7 of 2003). However, should the amendment have the effect of an increase in the payment of transfer duty, a receipt in this regard must also be lodged.

Proof to accompany application
Section 4(1)(b)(i) and (ii) specifically provide that every person appearing from the deed or other document who has an interest in the rectification must consent thereto in writing. However, where any person refuses to consent thereto, the rectification may be made on the authority of an order of court.

The consents of co-transferees, co-mortgagors and co-mortgagees to the amendment of a name of a transferee, mortgagor or mortgagee respectively need, however, not be lodged (RCR 3/1940). If the mortgagor's name is amended, however, naturally all the mortgagees must consent to the amendment of the title deed and bond.

Where an error is common to two or more deeds, the registrar of deeds has the inherent right to insist on the amendment of all the existing deeds before registration of later deeds (section 4(1)(b)(iii) of the Act and RCR 67 of 1964). It is also required in practice that the applicant must state in his/her application and/or sworn affidavit that there are no further details requiring amendment. If he/she has failed to do so, the conveyancer must certify accordingly.

If the error has a bearing on a party to a registered antenuptial contract and the parties contend that the contract has been lost, the deeds office copy of the contract must be amended and a caveat noted so that the client's copy can also be amended on lodgement in the office. Thus a certified copy of the lost contract must not be insisted upon (RCR 52 of 1952). The affidavit by the parties to the amendment of the contract should disclose that the client's copy of the contract has been lost or damaged.

No amendment will be necessary to rectify an error in a "dead" deed, and it is also not practice to amend the name of a person who has not right or interest therein, for example a transferor in a deed of transfer or cedent in a notarial cession.

Bonds which are being cancelled are also not amended, except if the error has a bearing on the description of the mortgagee.

Republished with permission from SA Deeds Journal

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