To certify or not to certify …

A problem often encountered by practitioners and examiners alike pertains to when documents required as proof by the Registrar may be certified as a true copy by a conveyancer or notary public, and when they must be certified as a true copy by the Government Office in which such a document has been filed or recorded.

Regulation 20(7) of the Deeds Registries Act 47 of 1937 provides as follows in this regard:
"Not withstanding anything in this regulation contained, the Registrar may in his discretion accept for record any copy of a document which is filed or recorded in any Government office: Provided that such copy has been certified to be a true copy by or on behalf of the head of such office or by a conveyancer or by a notary public: Provided further that in the case of a diagram it has been certified by the Surveyor-General, and in the case of a will, codicil or other testamentary document it has been certified a true copy by the Master."

It is evident from the above regulation that the only copy of a document filed or recorded in any Government Office that may not be certified a true copy by a conveyancer or notary public is a diagram, which has to be certified a copy by the Surveyor-General, and a will or codicil, which must be certified a true copy by the Master (note that an attorney is not included).

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If the above regulation is read in isolation, there would appear to be no problem, but the legislation in Regulation 50(1) of the Act provides that a liquidation and distribution account must also be certified a true copy by the Master.

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. Unfortunately, however, 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).

To summarise, all documents except the following may be certified by a conveyancer or notary public (Note: not an attorney or commissioner of oaths):

1. Will or codicil
   
2. Diagram
   
3. Liquidation and distribution account
   
4. Any other document, the original of which is filed with the Master.

It is trusted that the above has shed more light on the interpretation of Regulations 20(7) and 50(1).

The above two regulations will be placed on the agenda for the Deeds Regulation Board Meeting for possible amendment.

Republished with permission from SA Deeds Journal.

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