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Reversal – a reply

8 July 2010

In response to Reversal of intent ("the article"), my view is that considerations of legal questions, however careful they may be, are not immune to error. The fact that "such vesting was purely intentional and carefully considered by the department" cannot render an otherwise illegal vesting legal.

If it is now clear that the vesting in question was, in law, erroneous, the matter can, and ought to, be rectified in terms of a Court Order, pursuant to section 6 of the Deeds Registries Act, 1937, (Act No. 47 of 1937), as amended, ("the DRA"), or, alternatively, by means of a rectification transfer, in terms of section 16 or 31 of the DRA.

The afore-going position is distinguishable from, and not in conflict with, the decision in Prophitius and Another v Campbell and Others 2008 (3) SA 552, which decision was confirmed in Du Plessis v Prophitius and Another 2010 (1) SA 49 (SCA) and did not deal with the vesting of ownership by operation of the law.

To the extent that it is implied in the article that a no-conveyancing error does not qualify for a rectification transfer, I do not agree. For an example of a non-conveyancing error, that qualifies for a rectification transfer, refer to the penultimate paragraph of page 388 of the fourth edition of JONES CONVEYANCING IN SOUTH AFRICA ("Jones"), that is: "It happens more frequently than may be supposed that a person buys a particular property pointed out on the ground to him as being, say Erf 418, when in actual fact the ground pointed out to him is Erf 419. He thereupon builds upon Erf 419 and receives transfer of Erf 418. This might happen with successive owners until some wide awake-person discovers the error and the fat is in the fire. ………………"

I do not agree to the conclusion contained in the last page of the article, to the effect that sections 16 and 31 of the DRA are only applicable to "the acquisition per se" and not to "reversing what has already been vested in a wrong tier of the same organ" also - refer to Jones, page 388, where it is stated that: "The only way to rectify the position - see s 16 of the Act - is for the occupier of Erf 419 to transfer Erf 418 to the township owner and receive transfer back from that owner of Erf 419." Further, I do not agree to the conclusion that, whereas "concrete evidence of the alleged error" is essential to a "formal Rectification Transfer from RSA to the Provincial Government", such "concrete evidence of the alleged error" is not essential to the transfer by "a normal Deed of Transfer". Actually, a "formal Rectification Transfer" and "a normal Deed of Transfer" are both governed by sections 16 and 31 of the DRA. The causa for both transactions is the same and must be proved, let alone equally. A rectification transfer would, therefore, result in a registration of transfer from "RSA to the Provincial Government" - a simultaneous reversal and acquisition. If, however, the alleged error cannot be proved, there is no valid basis at all for the "reversal" of the vesting in question.

Thabo Nqhome
06 July 2010


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