Regulation 68(1) of the Deeds Registries Act 47 of 1937 provides that an application for a copy of a lost deed must be accompanied by an affidavit stating "that it has not been pledged and it is not being detained by any one as security for debt or otherwise …" The question begging an answer is: What will the position be where a mortgage bond is registered over the property? The title deed is more often than not held by the bondholder, as security for the debt. If the title deed was indeed held by the bondholder and was lost while in possession of the bondholder, it can be argued that the application and affidavit must be given 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.
Surely, given the above, this regulation causes headaches for many conveyancers, as numerous applications are lodged where it is stated in the affidavit that the title deed "has not been pledged and it is not being detained by anyone as security for debt or otherwise, except for a bond number B …/… registered in favour of ……………………………". Is this not an absolute contradiction of the regulation? The Registrar of Deeds at Pretoria went so far as to issue a circular stating that it is not necessary to refer to registered bonds in the application (RCR 2 of 1999). The words "it is not necessary" may be interpreted that the bonds can still be referred to in the application. The Regulation Board should perhaps reconsider the wording of the regulation. In the interim, however, conveyancers are urged not to refer to registered bonds registered over the relevant property, as it is in contradiction of the said regulation.
In the same vein, where a copy has already been issued, in terms of Regulation 68, and the title deed (VA copy) is lost or destroyed, which title must be addressed in the application -the original or the VA copy? It is submitted that, when the application and affidavit were initially made for the issuing of the VA copy, the affidavit was already issued in respect of the original deed. When the VA copy is issued, it serves as the original.
In RCR 26.1 of 1996 the question was raised whether it is really necessary to disclose in the application/affidavit the fact that a copy was previously issued and that it is also lost? Conference resolves that the full facts must be disclosed, i.e., reference must also be made to any subsequent copies issued. It is, however, submitted that in the initial application, the affidavit was already given in respect of the original title deed, and therefore the second or further application for any copy must actually only refer to the VA copy (the latest one): the reason being that the first affidavit already declared that the original deed is lost, etc.
What is the opinion of the registrars, deeds office staff and conveyancers in this regard? Are there different practices prevailing in the deeds offices?
Your comment would be appreciated - Editor of SA Deeds Journal