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The Legal Practice Bill and Conveyancers

25 February 2003

Abstract
The Legal Practice Bill - Submissions made by the Property Law Committee of the Law Society of South Africa concerning conveyancers is an article found in the August 2001 issue of De Rebus. This article discusses the pivotal role of the conveyancing attorney in land registration in South Africa as well as issues currently facing the profession. Conveyancers are much more than "those who convey". Their responsibilities are wide and their knowledge must be thorough. To members of the legal profession and anyone involved in property - this article is well worth reading. It clearly explains the value and central importance of the conveyancer in the transfer of property in South Africa - a role that must not be undermined by the cavils of those outside the profession.

Extensive knowledge
South African Conveyancers' knowledge has to include some 44 Acts of Parliament such as the Companies, Administration of Estates and Matrimonial Property Acts. They also have to know many branches of the law - the law of persons, contract law, insolvency law, company law and the law of trusts. In addition to being able to draft Deeds Office and other documents, conveyancers also have to superintend and control the finances of the transaction. This is a finicky business that requires an efficient accounting system as registration procedures involve numerous interlinked and dependent transactions.

Why retain the status quo?
The submissions of the committee all support the retention of the status quo - that only an attorney or a legal practitioner with the necessary qualifications should be admitted to the High Court as a conveyancer. The reasons for this are compelling. In the 1980s the Competition Board found that the statutory preservation was "still justified in the public interest".

Suitably qualified conveyancers are required for a soundly implemented and maintained electronic deeds registration system. If the responsibilities of the Deeds Office are increased, their fees will go up - to the detriment of the consumer.

Newly empowered emerging conveyancers will also lose out on business from banks and estate agents if such institutions were allowed to undertake "in-house" conveyancing. The Attorneys Fidelity Fund has a vital role to play in protecting the public against dishonest attorneys. Conveyancing fees are not high; they are in line with international norms. It is the estate agent's commission and transfer duty that are higher than the norm.

Value of professional independence
One cannot over emphasise the professional independence of the conveyancer in private practice, and the duty of care that he or she owes to the public. Moreover, the Law Societies enforce high standards of performance. In fact, if the existing land registration system was inexact, there might be a need for title insurance, which would be yet another cost for the landowner to bear. New technologies, such as those that automatically produce conveyancing documents, do not entitle paralegals to practise as conveyancers. The law is simply too involved.

Although the idea of licensed conveyancers was welcomed in some quarters in England and Scotland, their role and function have diminished. Firms of solicitors now employ many of these licensed conveyancers and their roles have been clearly defined.

Need for security of title
The De Rebus article continues with excerpts from Land Title in South Africa by David Carey Miller and Anne Pope. All of these excerpts emphasise the fundamental aim of conveyancing, that is to give tenure of maximum utility and security of title, distinguishable from lesser rights.

The committee's memorandum on the question of licensed conveyancers is also interesting to read. It contends that the existence of licensed conveyancers is possible only if the process is more or less mechanical, with the title guaranteed by the state. This is not the case at the moment, because the system relies largely on the expertise of the conveyancer. It is a system that entails "registering deeds" rather than "registering titles". The committee emphasises that conveyancing law is too inextricably linked to the broader context of the law as a whole. It believes that non-lawyer licensed conveyancers practising within an insurance-based system would not necessarily lead to an improved and cost-effective service.

Electronics do not a conveyancer make
The committee feels that the electronic factor per se will not make any difference in principle because this does not affect the nature of the system from a legal perspective. In the long run it feels that our present system of properly trained lawyer-conveyancers is still the most effective and efficient. A compelling case would have to be made to justify changing it.

Annexure C, by Gustav Radloff, gives an overview of English and Scottish law. The author discusses points of interest extracted from the Rules and Codes of the Law Society as set out in The Guide to the Professional Conduct of Solicitors. Here, clear conflict-of-interest rules have been developed for the solicitor; strict rules also apply to mortgage lending. He looks at the position of solicitors being employed by non-solicitors and how the Employed Solicitors Code of 1990 defines the manner in which such solicitors may practise.

Finally, Radloff looks at the introduction of licensed conveyancers. This is interesting because stringent requirements have been laid down to protect the public. These include the conveyancer having audited accounts, the backing of a Fidelity Fund and expensive indemnity insurance. These have not benefitted the consumer much, as conveyancing fees have already been reduced as a result of the increased competition between solicitors. Furthermore, solicitors also offer ancillary legal services.

derebus.org.za website

Reader Comments: 1
Amit Ramasar 10/05/2012:

This article does not discuss the specific function of the conveyancer where he/she ensures that the sale price of the property is secured by his/her office, before proceeding with the registration of transfer. Is it one of the specific duties - to ensure the monies are available and paid to the seller when registration of transfer is complete?

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