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Records Services of SA Act

21 July 2011

The Deeds Registry is an Office of Record or otherwise referred to as an Office of Registry.  The Parliament, Surveyor-General, Registrar of Births, Marriages and Deaths and the Master of the HIgh Court are also offices of record.

An office of record is an office which is responsible for documents which require special treatment in order to ensure that the authenticity and legality of the contents cannot be questioned.  Generally the custody of such records is assigned to a specific functionary by legislation.

It is submitted that the relevant legislation in case of the Deeds Registry is the Deeds Registries Act (Act No. 47 of 1937, as amended) and it takes precedence over the National Archives and Records Service of South Africa Act (Act No. 43 of 1996, as amended) insofar as the transfer of records into archival custody is concerned.  The National Archives Act provides in section 11(2) as follows:

"Public records identified in a disposal authority as having enduring value shall be transferred to an archives repository when they have been in existence for 20 years: Provided that (a) no other Act of Parliament requires such records to be kept in the custody of a particular governmental body or person ..."

I am not aware of any legislation superseding the Deeds Registries Act.

Section 3(1(a) of the Deeds Registries Act, No. 47 of 1937, provides as follows:

"The Registrar shall subject to the provisions of this Act, take charge of and, except as provided in subsection (2) or (3), preserve or cause to be preserved all records which were prior to the commencement of this Act, or may become after such commencement, records of any deeds registry in respect of which he has been appointed."

Subsection (3) authorises the registrar to preserve copies of documents for record purposes instead of the originals.  The copies can be produced by microfilming or means of any other durable process.

The measure of control which registry offices possess over their own records, is further illustrated by the following provisions:

Section 3(1)(y): "The registrar has to keep such registers containing such particulars as are necessary for the purpose of carrying out the provisions of the Act or any other law and maintaining an efficient system of registration calculated to afford security of title and ready reference to any registered deed."

The nature of the documents to be registered in registry offices is stipulated in section 3 of the Act:

  • Grants of leases of land issued by the Government or other competent authority.
  • Deeds of transfer of land and certificates of title to land.
  • Mortgage bonds.
  • Notarial bonds.
  • Antenuptual contracts.
  • Notarial deeds of donation.
  • Grants or leases of rights to minerals issued by the government.
  • Notarial cessions, leases or sub-leases of rights to minerals.
  • Mynpachtbrieven.
  • Personal or land servitudes.
  • Notarial leases.
  • Notarial prospecting contracts.
  • Real rights.
  • General plans of erven or subdivision of land.
  • Powers of Attorney.
  • Recording of notices, returns, statements or orders of court lodged in terms of any law.
  • Orders of liquidation or sequestration.
  • Regsitrations, modifications, extinctions and cessions of the above, where authorised.

The Deeds Registries Act clearly gives the Registrar of Deeds the responisbility to take charge of and to preserve certain categories of records described in section 3 of the Act.  Only records not covered by section 3 of the Act are subject to the records management requirements of the National Archives and Records Service of South Africa Act, e.g. normal correspondence created or received by the Deeds Registry in its pursuance of its activities filed according to its approved file plan.  The latter should be handled according to the records management requirements stipulated in section 13 of the National Archives and Records Service of South Africa Act.

If it is the intention that the electronic version of records described in section 3 of the Deeds Registries Act become the official, legally admissable version (and to retain the records in electronic form only), it would be advisable for legal advice to be taken on which version would have the necessary evidential weight for legal admissibility.  Even though the Electronic Communications and Transactions Act (No. 25 of 2002) provides for electronic images to carry evidential weight, it does so only if it can be demonstrated that the records created in such systems were created in a trustworthy manner and there was no room to tamper with them in the scanning process.  The procedures followed in scanning and indexing would need to be aligned with the national standard SANS 15801: 2005 Electronic imaging - Information stored electronically - Recommendations for trustworthiness and reliability to enable the scanned images to be legally admissable. 

A standard which would be useful to take note of is the Digitisation Standard of Archives New Zealand S-6 Archives New Zealand's Standard for Digitising Non-Electronic Records for Recordkeeping Purposes and Retention of Non-Electronic Records in Electronic Form.  It is a digitisation standard, which excluding those standards that are specific to Archives New Zealand, could be used essentially as it is to produce an international standard. 

 

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