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Resolution 44/2005

19 October 2006

In his comments on the abovementioned Resolution in Conference Resolutions - II on 3 October 2006, Dudley Lee makes the following point:
"This resolution reflects really badly on the conference! Has nobody taken the trouble to read s57(5) of the Deeds Registries Act ("the DRA")? A right reserved in terms of s25 Act 95/1986 is surely a real right and therefore immovable? The resolution is patently wrong."

I agree with Dudley that, in the light of section 57 (5) of the DRA, the Resolution is wrong. However, my agreement in this regard is limited to the extent that the Resolution states that section 57 of the DRA "is only applicable to the substitution of a bond over land."

I agree entirely with Dudley's view to the effect that a real right reserved in terms of section 25 of the Sectional Titles Act, 1986 (Act No. 95 of 1986) ("the STA") is immovable property. The basis for my agreement in this regard is section 25 (4) (a) of the STA, in terms of which a right reserved in terms of subsection (1) or vested in terms of subsection (6) of the STA, and in respect of which a certificate of real right has been issued, "shall for all purposes be deemed to be a right to urban immovable property which admits of being mortgaged".

However, for the reasons set out below, I am unable to agree that section 57 of the DRA applies to the aforementioned real right ("the real right of extension").

It is noteworthy, for example, from section 3(1), and section 18 in particular of the STA, that no provision of the DRA is automatically applicable to the STA.

I am not aware of any provision of the STA, the DRA or any other law, in terms of which section 57 of the DRA is expressly or impliedly made applicable to the real right of extension.

It is significant that, notwithstanding section 3(4) of the STA, in terms of which a unit "is deemed to be land" (refer to "land" in section 57(1) of the DRA also), the legislature considered it to be necessary to enact section 18 of the STA in order to make section 57 of the DRA, in particular, applicable, amongst other things, to a "mortgage unit"!

In conclusion, I make the observation that, in my opinion, in the absence of a statutory provision therefore, section 57 of the DRA is not applicable to the real right of extension and that, although the reason given therefore was untenable, the resolution was technically correct.

Thabo Nqhome
10 October 2006

NB: See Section 57 Note of last week. - Editor

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