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Power of executor - 5

8 March 2007

In the last paragraph of Power of executor - 4, Dudley Lee remarks: "I wonder what Mr Nqhome's decision would have been, had he occupied a Registrar's seat in the circumstances." I state, in clear and unequivocal terms that, if I occupied a Registrar's seat, I would, like the Registrar of Deeds in the Kriel case, not hesitate to register a draft Deed of Transfer tendered to me for registration.

On page 295 of the 8th edition of Wille's Principles of South African Law, it is stated that: "From the above it follows that South African Law adheres to the so-called abstract system of passing of ownership. The mere intention of the parties to transfer and accept ownership is sufficient independent of the existence or non-existence of a valid underlying causa. Ownership will pass even if an underlying causa (like a contract of sale) is lacking, putative or invalid. Although the causal system according to which a valid causa is required for the transfer of ownership has been followed in earlier decisions and despite the fact that the passing of ownership is sometimes made dependent on whether the underlying contract is void or voidable in contracts induced by fraud, the abstract system prevails in modern South African Law."

I submit with all due respect, therefore, that Mr Lee's argument about "a title, already registered in terms of an invalid deed of sale," is untenable. The title deed must be registered on the basis of the common law as confirmed in the Kriel case. A person, who is aggrieved by a Registrar's decision to apply the law, is free to seek redress in a court of law. If a Registrar is of the opinion that his/her decision to register would, if challenged, be upheld in a court of law, he/she must register the title deed. I agree that a "Registrar is not, by definition, a court, and cannot call witnesses". However, I do not agree that a Registrar is required to "decide that the title registered as a consequence of a void deed of sale will be valid once registered." A Registrar is not required to speculate on the existence or non-existence "of circumstances which he is not aware of, which he cannot ascertain or reasonably be expected to ascertain and which even a Court may decide will render a subsequently registered title void." For the purpose of administering the law to the facts, there is no need on the part of a Registrar to call witnesses. This position applies equally to all registrations of deeds or documents.

Clearly, section 28 (2) of the Alienation of Land Act 68 of 1981 is only applicable to the validity of an "alienation which does not comply with the provisions of section 2 (1)" of the Act. The said section 28 (2) is only applicable "if the alienee had performed in full in terms of the deed of alienation or contract and the land in question has been transferred to the alienee." Further, the said section 28 (2) has no bearing whatsoever on the mode of acquisition of ownership referred to in the Kriel case because, on the contrary, the said section 28 (2) validates ab initio an alienation which is of no force of effect in terms of section 2 (1) of the Act.

Thabo Nqhome
05 March 2007

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