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Regulation 68 comments response

23 November 2006

  1. I express my views and observations on Marie Grovè's article Regulation 68, which appeared in the General Section of the GhostDigest on Thursday 16 November 2006.

  2. With reference to an application for a copy of a lost deed in terms of Regulation 68 (1) of the Deeds Registries Act, 1937, Marie Grovè states that, where a mortgage bond is registered over a property: "The title deed is more often than not held by the bondholder, as security for the debt." I do not agree because, in such a case -
    (a) the security for the debt is the property over which the mortgage bond is passed; and
    (b) the title deed is retained by the bondholder purely for safe-keeping.

  3. Marie Grovè argues further, that, if the title deed was lost while in the possession of the bondholder, the application for a copy of the lost deed must be made by the bondholder: "the reason being that the registered owner will not always be aware of the circumstances under which the title deed went astray, while in the possession of the bondholder." I do not agree because -
    (a) in terms of Regulation 68 (1), the application and affidavit must be made by "the registered holder thereof or his duly authorised agent";
    (b) the fact that the title deed was in the custody of the bondholder does not detract or subtract from the competence of "the registered holder thereof or his duly authorised agent" to make the application and affidavit - refer to sub-paragraph (d) below;
    (c) "the registered holder thereof or his duly authorised agent" would base his application and affidavit on the report received from the bondholder about the loss, the circumstances relating thereto and the diligent search conducted - a supporting affidavit from the bondholder would be best; and
    (d) Regulation 68 (2) provides, amongst other things, that: "If the circumstances of the loss or destruction are not stated, or if they are stated and the Registrar is of the opinion that further evidence is necessary, either from the applicant himself or some other person in whose custody the deed …………………may have been before the loss or destruction thereof, to establish such loss or destruction, he shall be entitled to call for such evidence".

  4. On the basis of paragraphs 2 and 3 above, I subscribe to the circular quoted by Marie Grovè, which circular is reported to have been issued by the Registrar of Deeds at Pretoria, to the effect that it is not necessary to refer to registered mortgage bonds in the applications for copies in terms of Regulation 68. Actually, and for the sake of clarity, I would state that it would be inappropriate to make such reference since the safe custody of a title deed by a bondholder is not a pledge. It follows, therefore, that I see no need for the Regulation Board to reconsider the wording of Regulation 68 (1) as suggested by Marie Grovè.

  5. Marie Grovè submits that: "When a VA copy is issued, it serves as the original." It is necessary to stress that, even if a VA copy "serves as the original", it (the VA copy) is and remains a copy and may not be regarded as the original. The distinction between an original deed and a copy thereof is clearly spelt out and consistently kept throughout Regulation 68.

  6. Finally, Marie Grovè questions the correctness of Registrars' Conference Resolution 26.1 of 1996 in so far as it requires an application/affidavit for a copy of a lost or destroyed copy under Regulation 68 (7) to refer to all previously issued copies. I fully agree with Marie Grovè on her submission in this regard and would add that -
    (a) this requirement is neither expressed nor implied in Regulation 68 (7), which clearly does not impose additional requirements;
    (b) each Registrar of Deeds has a record of previous applications/affidavits made as well as VA copies issued; and
    as a matter of course, no extra burden should unnecessarily be placed on any application.

Thabo Nqhome
17 November 2006

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