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Subject to ties - V

12 August 2010

In Subject to ties - IV ("the article"), after setting out a 4-point simple argument, Mr Lee calls for a judicial interpretation of the situation and asks: "Anybody prepared to take this matter on?"

For the way ahead, let us compare the words "….. that the property may not be sold / alienated / mortgaged / or in any other way dealt with ……", in the tie condition cited in the third paragraph of Subject to ties, on the one hand, with the words (i) " … pass, cede, or cancel a deed or to perform any other act in a Deeds Registry ….." in Regulation 65 (1) of the Deeds Registries Act, 1937, (Act No. 47 of 1937), as amended, ("the DRA"), (ii) "….transfer, hypothecate or otherwise deal with land or other immovable property ….." in Regulation 65 (3) of the DRA and "…..dealing with immovable property………" in Regulation 65 (4) of the DRA, on the other hand (my italics). I see no dissimilarity here in the meaning of "deal with", which, according to the decision in Re Estate Margaret Young 1942 NPD 276 ("the decision"), which decision is cited in the fifth paragraph of Subject to ties, mean acts of registration in a Deeds Registry.

The 1st argument in the article is that "a certificate of title is not dealing with the land concerned". An immediate question, directly prompted by this argument, is whether a Deeds Registry can, therefore, properly issue a certificate of title to land to a person who purports to act on behalf of the registered owner of such land without such person "lodging for filing with the Registrar the original power under which he claims to act", as contemplated in Regulation 65 (1) of the DRA. In my opinion, particularly on the authority of the decision, the answer is in the negative.

The 3rd argument in the article is that "the original nature of a certificate of title was merely a certificate by the registrar as to certain facts extracted from his records - a substituting title - and not dealing with the land" (emphasis added). This argument should be compared with the second paragraph on page 182 of the fourth edition of JONES CONVEYANCING IN SOUTH AFRICA, in which it is stated that "… as a general rule a certificate of title is merely a statement of fact extracted by the registrar from the existing titles and replacing them ……." (emphasis added).

In conformity with the KISS principle, recommended at the beginning of the article, I submit that, (i) the original, or current, nature of a certificate of title to land does not subtract or detract from the fact that its issue is an act of registration in a Deeds Registry, as interpreted in the decision and (ii) unless and until registered in a Deeds Registry, a sub-division or consolidation, for example, is still-born and useless. Therefore, for the purposes of Regulation 65 of the DRA, obtaining a certificate of title to land is dealing with the land in question.

In conclusion, I refer to paragraph 26 of S v Mhlungu and Others 1995 (3) SA 867 (CC) at page 880-881, where Mahomed J said: "'Deal with' is a more protean, inherently more tentative idea…... The phrase therefore has different nuances………"

Thabo Nqhome
06 August 2010


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