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Sales in execution - a reply

31 August 2006

This is my comment on Sales in execution by P J Weideman, which was published on Thursday 24 August 2006, in the General category of the GhostDigest.

After discussing section 30 of the Administration of Estates Act 66 of 1965 ("the Act") and, amongst other things, drawing attention to the fact that a sale in contravention of the said section is a nullity, P J Weideman enquires "whether it is the duty of the Registrar of Deeds to determine that no such transfers are registered unless accompanied by a direction of the High Court?" and makes the observation that: "In most cases, sale in execution transfers lodged at the Deeds Registry will not indicate whether the owner is deceased."

Sales by Sheriffs, pursuant to writs of execution against immovable property, are governed by Rule 46 of the Rules regulating the conduct of proceedings in the several Provincial and Local Divisions of the High Court ("the Rules"). Rule 46(5) of the Rules prohibits, in peremptory terms, a sale in execution of immovable property, which is subject to any claim preferent to that of the execution creditor, unless certain procedures, which I do not propose to set out herein, have been followed. I venture to express the belief that, in this case also, transfer documents lodged with deeds registries do not confirm that the aforementioned procedures have been followed. The same applies to documents relating to the transfer of erven arising from contracts, which contracts are of no force and effect in terms of section 67 (2) of the Town-planning and Townships Ordinance (Transvaal) 15 of 1986 ("the Ordinance").

A perusal of the vast literature, which has a bearing on conveyancing and/or registration of deeds, shows that there is no consistency at all regarding the allocation or assumption of responsibilities for the purposes of preventing, amongst other things, null and void registrations at deeds registries. As shown above, in some cases there is no allocation of responsibilities at all. In the circumstances and in the absence of any directive on a particular case, opinions will always differ on whether any role player, particularly the Transferor, the Conveyancer or the Registrar of Deeds, should take any responsibility at all and, if so, which role player should take the responsibility.

In the midst of a diversity of ways in which the challenge posed by P J Weideman can be addressed, I would suggest a requirement for the production to Registrars of Deeds of affidavits or certificates by Sheriffs in connection with section 30 the Act and Rule 46 (5) of the Rules (there might be more) - refer to section 15B (3) of the Sectional Titles Act, 95 of 1986, for example. Similarly and for the sake of completeness, Conveyancers should be required to certify about section 67(2) of the Ordinance. I submit that the approach suggested in this paragraph would be one of the responsible ways of taking reasonable steps aimed at improving the reliability of our deeds registration system and the protection of the interests of the public in general.

Thabo Nqhome
25 August 2006

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