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To certify or not to certify … II

21 September 2006

I respond to the article To certify or not to certify … , which was published on Thursday, 14 September 2006, in the General category of the GhostDigest.

The article expresses regret that "the Conference of Registrars held in 1988 and again in 2005 that any document, the original of which is filed with the Master of the High Court, may only be certified a true copy by the Master (see RCR 31 of 1988, as confirmed by RCR 21 of 2005)".

In my opinion, for the reasons set out below, Registrars Conference Resolutions 31 of 1988 and 21 of 2005 cannot be faulted.

It is important to observe that the main object of Regulation 20 (7) of the Deeds Registries Act 47 of 1937("the Act") is to specify who are qualified to certify copies of the documents referred to therein for acceptance for record by Registrars of Deeds. In terms of the said Regulation 20 (7) of the Act ("Regulation 20 (7)"), a copy of "a will, codicil or other testamentary document" may be certified by the Master only.

It is important to observe that, as a contrast to Regulation 20 (7), whose scope is unlimited, the object of Regulation 50 (1) of the Act ("Regulation 50 (1)") is to require lodgement, with a deed of transfer of land "in pursuance of the provisions of a will, codicil, or other testamentary document" of "an accepted and certified true copy by the Master, of the will, codicil or other testamentary document, as the case may be". Regulation 50 (1) prescribes, further, that: "The Registrar may also in the exercise of his discretion require any executor who seeks to transfer land belonging to the estate under his administration, to lodge an accepted and certified a true copy as aforesaid, of the will, codicil, or other testamentary document, and of the liquidation account in the estate." [my emphasis]

It seems to me that the critical problem with the article is its unfortunate omission of "or other testamentary document" in its statement that: "Given the above, it is clear that only a will, codicil, diagram and liquidation and distribution agreement needs to be certified by the Master or Surveyor-General respectively." It is clear that the legislature rightly saw it fitting, in Regulation 50 (1), to add a liquidation account to a will and a codicil, without withdrawing the requirement to have certified by the Master any "other testamentary document". The same unfortunate omission is contained in the statement preceding the question posed for consideration, which resulted in Registrars Conference 21 of 2005, that is: "Regulation 20(7) of Act No. 47 of 1937 only requires a will or codicil to be certified as a true copy by the Master." Both Regulations 20 (7 and 50 (1) expressly require certification by the Master of any "other testamentary document" also.

Therefore and by way of summary, the aforesaid two Regulations are, in my view, clearly complementary to, and in harmony with, each other as confirmed by Registrars Conference Resolutions 31 of 1988 and 21 of 2005.

Thabo Nqhome
19 September 2006

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