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Subject to ties – a response

27 May 2010

Contrary to the conclusion expressed in Subject to ties ("the article"), in my opinion, for the reasons set out herein, the Deeds Office and Department of Agriculture are correct in seeing consolidation as a separate dealing with a tied property or tied properties referred to in the article.

I fully endorse the concession made by the author of the article ("the author"), after making reference to the decision in In Re Estate Margaret Young 1942 NPD 276, that: "Certainly transfer will be dealing with the property." The author states that: "The Court found that "dealing" in regulation 65 (4) pertains specifically to dealings or registrations in the deeds registry."

Section 3 (1) (d) of the Deeds Registries Act, 1937, (Act No. 47 of 1937), as amended, ("the DRA"), provides that a Registrar of Deeds shall "attest or execute and register deeds of transfer of land, and execute and register certificates of title to land" (my emphasis). It cannot be disputed that a Certificate of Consolidated Title is a "certificate of title to land" as contemplated in section 3 (1) (d) of the DRA.

On the basis of the afore-going, I am satisfied that the issue of any certificate of title to land, including a Certificate of Consolidated Title, constitutes a dealing with the property or properties involved. This is more so if proper regard is had to the implication of the words "in any other way" in the usual Minister's tie condition cited in the article, which words I consider to have a very wide connotation.

As a matter of course, where two properties are subject to a tie, a consolidation of one of them with another property would constitute a separate dealing with the former and, therefore, require a Ministerial consent. Similarly, the issue of a Certificate of Registered Title in respect of one of the tied properties, without a Ministerial consent, would violate the tie condition.

Finally, on the basis of the afore-going approach, I do not regard a requirement to obtain a Ministerial consent for the issue of any certificate of title to land to be absurd. Even if there would be apparent absurdity, I submit that such absurdity ought not to detract from faithful compliance with a clear condition of title.

Thabo Nqhome
25 May 2010




From Peter Newmarch

Dear Sir,

I wish to differ in certain aspects of your article "Subject to ties" 20 May 2010.

As of 1 May 2010, consent to consolidate is indeed required (unless you wish to have a criminal record) and in many instances a public consultation process is needed, as stipulated by the KZN Planning and Development Act 6 of 2008. The proposed amendments to this Act (which is currently being undertaken) looks at including the consolidation by Notarial Tie. The current form of the act only dealing with a consolidation by means of a consolidated diagram.

The penalty for non compliance by any person is a criminal conviction of up to 5 years in jail or a fine or both.

Additional aspects to consider is whether the diagram has lapsed in the case of any unregistered portions of land. As provided for under the transitional arrangements of the Act.

In a similar manner, an alteration, suspension or deletion of a restriction relating to land is also subject to the same act and its approval cycle - non compliance being a criminal offence.

The Powers under this act is delegated to each Municipality in KZN and no law or state entity is exempt from its provisions - it makes no difference if one is dealing with farm or urban land.


Sincerely
Peter Newmarch

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