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Section 45(bis) applied - II

17 August 2006

This is a comment on a very interesting, thought-provoking and comprehensive article; Section 45(bis) applied by Dudley Lee, which was published in the General category of the GhostDigest on Thursday, 11 August 2006.

It is noteworthy that, according to section 102 of the Deeds Registries Act, 1937 ("the Act"), "share", in relation to land means an undivided share. It is noteworthy, further, that, whereas sections 45(1) and 45bis(1) of the Act refer to "share", section 45bis(1A) refers to "undivided shares". Therefore, as a point of departure, it is reasonable to assume an intention on the part of the legislature to contemplate some difference in the meanings of "share" and "undivided share" in the said respective sections of the Act.

Further, in the said respective sections of the Act, "share" is expressly stated to relate only to a situation where a surviving spouse or one of the divorced spouses has lawfully acquired "the share of the deceased spouse" or "the share of his or her former spouse", respectively, whereas "undivided share" relates to an accrual - a term with an unquestionably wide connotation. Therefore, in the context of the said respective sections of the Act, "share" is intended to mean an entire undivided share (of the deceased spouse or divorcee) whilst "undivided share" is intended to mean any proportion of an undivided share.

It should be clear, therefore, that, having regard to its practical experience, if it had intended to restrict "undivided share" to "half share" in section 45bis(1A) of the Act, the legislature would not have hesitated to say so as it had clearly done in sections 45(1) and 45bis(1) of the Act.

A further important observation is that, in the said respective sections of the Act, "share" goes hand in hand with "shall" whereas "undivided share" goes hand in hand with "may", on the part of a registrar of deeds. A registrar of deeds would, therefore, not be justified in refusing to endorse a title deed under section 45bis(1A) of the Act purely on the grounds of an accrual of an undivided share, which is more than a half undivided share. However, a registrar of deeds would justifiably refuse to endorse a title deed under section 45bis(1A) of the Act where, for example, an accrual is prohibited by law (section 3 of the Subdivision of Agricultural Land Act, 1970) or where the two fractions of undivided shares are more or less than the whole property (1/5 and 2/5 or 3/5 and 4/5).

The fact that the court order, or the court order and authorisation, referred to in section 45bis (1A)(b) of the Act is not limited to a division in half undivided shares, is a further indication that an endorsement under section 45bis(1A) is not intended to apply to a retention of an undivided share only. The same applies to section 23, 23 bis and 24 of the Act, read with regulations 30 and 31 of the Act, from which it is clear that "undivided shares" is not limited to a half share.

Therefore, I endorse the statement in chapter 4 at 2.8.2 (iv) on page 29 of the Deeds Registration Law Manual, regarding the requirement to lodge a transfer duty receipt/exemption and a rates clearance certificate, to the extent that an endorsement under section 45bis (1A) of the Act entails an acquisition of an undivided share over and above a retention of an undivided half share.

While I fully endorse Dudley Lee's view to the effect that "[t]he "respective shares" can only be the share that accrues to each spouse as envisaged in section 45bis(1A)(a) and must include shares other than half shares as well", this view seems to be directly weakened by his next statement, to the effect that "[t]here can be no doubt that, should spouses agree to retaining shares other than a half share each, section 16 of the Deeds Registries Act 47 of 1937 must apply. In other words a transfer of property must take place." I do not understand why, exceptionally, transfer by way of endorsement should not take place in terms of section 45bis(1A) of the Act, particularly if regard is had to the fact that the fundamental common purpose of, which is expressly stated in, sections 45, 45bis(1) and 45bis(1A) is, notwithstanding section 16 of the Act, to enable a transfer or cession by way of endorsement.

In conclusion, I submit that the harsh realities of section 45bis(1A) of the Act may not be defeated by drawing a distinction between an endorsement, which confirms a retention of an undivided half share, on the one hand, and an endorsement, which entails an acquisition of a proportion of an undivided share.

Thabo Nqhome
14 August 2006

Note : See Dudley Lee's response below.

Reader Comments: 1
Dudley Lee 20/08/2006:

I read with interest Mr. Nqhome’s comments on my article on the application of section 45bis(1A) of Act 47/1937. Mr. Nqume’s assumption that there must be attached a different meaning to the word "share" as opposed to the words "undivided share" is in my opinion, with respect, not correct. It is clear from the very definition in the act (section 102 Act 47/1937) that the legislator intended the two terms to be interchangeable.

Since time immemorial the terms "share" and "undivided share" have been used as interchangeable phrases in land registration, and also seemed to have been used as such by the legislator if one considers the wording of, inter alia, sections 23, 24, 24bis, 26 of Act 47/1937, where both "share" and "undivided share" are used without the meaning of "an accrual" necessarily being able to be assigned or read into the term "undivided share".

Hence the definition of "share", as opposed to a "portion" in land or of land, which means a defined part of an existing land unit or parcel, or as opposed to "share" such as a share in a company. It is interesting to note that section 45bis(1A) also refers to "share". result when interpreting different sections of Act 47/1937.

It is true that in the interpretation of South African law the principle that words are not used unnecessarily and that every word in the act must be taken into account in its interpretation (see e.g. Keyter v Minister of Agriculture,1908 N.L.R. 522):
"It is the duty of the Court to give effect to every word which is used in a Statute unless necessity or absolute intractability of the language employed compels the Court to treat the word as not written". However, with respect, whether the word "undivided" was used by the legislator in section 45bis(1A) of act 47/1937 or not, would make no difference to its meaning. In Daitsh and another v. Osrin and another, 1950 (2) S.A. 334(A) on p 341 the judge also remarked that tautology is not an uncommon occurrence in legislation. It must also be borne in mind that the meaning of "share" or "undivided share" is not what is really the problem, but the effect of the situation where the "share" or "undivided shares" in a property to which each spouse is entitled in terms of their settlement agreement are unequal.

There is also nothing ambiguous in this instance as far as the meaning of "share" or "undivided share" is concerned. The cardinal rule in interpretation of statutes is that where the language is unambiguous, and its meaning clear, the Court may only depart from such meaning if it leads to absurdity so glaring that could never have bee contemplated by the legislature.

The assumption that the two terms have different meanings seems to me, with respect, to be a bit far fetched. If any other meaning, such as Mr. Nqhome is suggesting is given to these terms, a possibly untenable situation may result.

Mr. Nqhome’s statements in the last two paragraphs that section 45bis(1A) should find application as a means of transfer of ownership in property, notwithstanding section 16 of the act, seems to me to be directly opposed to what the judge found in Ex Parte Menzies et Uxor. Furthermore, the word "may" in section 45bis and 45bis(1A) gives the registrar the discretion to refuse an application if he so decides, other than section 45(1) which states that the registrar shall endorse.

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