The Department of Rural Development and Land Reform briefed the Committee on the Deeds Registries Amendment Bill and the Sectional Titles Amendment Bill. Members were taken through the Bills clause by clause and given explanations about what had necessitated the amendments. The Committee asked if the appointment of board member alternates by the Minister in the Deeds Registries Amendment Bill was for the term of office or for specific meetings only. They queried why the Bills had been classified as section 75 bills (which did not affect provinces). It was suggested that the Sectional Titles Amendment Bill was perhaps over-regulation.
The Department of Rural Development and Land Reform (DRDLR) briefed the Committee on the Deeds Registries Amendment Bill and the Sectional Titles Amendment Bill. The delegation comprised of Dr Nozizwe Makgalamele, Acting Director General, Mr Sam Lefafa, Chief Registrar of Deeds, Ms Antoinette Reynolds, Chief Registrar of Deeds, and Ms Melissa Chetty, Parliamentary Legal Officer DRDLR. Ms Suraya Williams, Principal State Law Adviser: State Law Adviser’s Office, was also in attendance. Ms Reynolds undertook the briefings. The Committee was given a clause by clause explanation of the Bills.
Deeds Registries Amendment Bill
The object of the Bill was to amend the Deeds Registries Act No 47 of 1937 to substitute certain obsolete expressions and to enhance the application of the Act to conform to current and uniform practices of the deeds registries.
Section 2 of the Deeds Registries Act referred to as the principal Act was hereby amended. The clause clarified the powers of the Chief Registrar by defining “supervision” to include the issuing of practice and procedure directives.
Section 3 of the principal Act was amended. The amendment proposed in Clause 2(a) was consequential to the promulgation of the Mineral and Petroleum Resources Development Act 28 of 2002 which provided for the discontinuation of the registration of mineral rights in a deeds registry. The substitution of “Supreme Court” for “High Court” aimed to rectify the wording to reflect the present legal situation with reference to the High Court.
At present Registrars of Deeds were not obliged to follow practice and procedure directives that were issued from time to time by the Chief Registrar of Deeds. The result was that different practices and procedures were followed at different deeds registries. The amendment in Clause 2(b) made it obligatory on registrars to comply with directives and thus promote uniformity in all deeds registries.
It often happened that members of the Deeds Registries Regulations Board were unable to attend meetings due to unforeseen circumstances. The absence of members of the Board at a meeting may lead to the absence of a quorum and the cancellation of the meeting. The amendment of section 9 of the principal Act as proposed in this clause aimed to provide for the appointment of alternate members to the Board. It would prevent the cancellation of meetings due to a lack of quorum.
Section 17(2) of the principal Act currently provided for the disclosure of the full names and marital status of a person in a deed that needed to be lodged for registration record or execution in a deeds registry. The proposed amendment of section 17(2) provided for the disclosure of the full names and marital status of a person in any documents other than deeds, that need to be registered, recorded or executed by a registrar of deeds.
Section 34 of the Act allowed an owner of a piece of land to apply for a certificate of registered title for his or her undivided share in land, but only in instances where such land was owned in joint ownership. The proposed amendment of section 34 in this clause catered for the issuing to any sole owner of a certificate of registered title for any fraction of his or her undivided share in land.
The amendment of the definition of “Master” as proposed in the clause was consequential to the change of name of the High Court as contemplated in Clause 2 of the Bill. The amendment of the definition of the “Minister” also proposed in this clause sought to express the correct title of the Minister in view of the recently changed name of the Cabinet portfolio.
Clause 7 contained the short title of the Bill.
Sectional Titles Amendment Bill
Clauses 1 (a), (b) and (c) of the Bill provided for the amendment of the definition of “developer”, “Minister” and “owner”. Clause 1(a) provided for a developer’s agent or successor in title to act on behalf of a developer in respect of the approval of development schemes.
Clause 1(b) provided for the amendment of the definition of “Minister”, which was necessary in view of the change from “Land Affairs” to “Rural Development and Land Reform”. Clause 1(c) of the Bill provided for the deletion of reference to the repealed Agricultural Credit Act, no 28 of 1966. Clause 1(d) of the Bill proposed the amendment of section 1(3A) of the principal Act to provide for a body corporate to approach the Court in instances where it was unable to obtain a unanimous resolution.
The phrase “the median line of the dividing floor, wall or ceiling”, in section 5(4) of the principal Act, stipulated the boundary of any section in a sectional title scheme. The amendment of section 5(5)(a) provided that the median line of a section would pass through the centre of exterior windows, doors and other structures built into the section’s exterior walls, floors and ceilings. This provided assistance in determinations of this nature.
Clauses 3 and 4
A sectional title register could be opened on more than one piece of land. If any such piece of land was hypothecated under a mortgage bond, then the provisions of section 40(5) of the Deeds Registries Act of 1937 must be complied with. However the application of section 40(5) caused confusion especially regarding the format and content of its application. The amendment of section 11(3)(d) as proposed in Clause 3(a) sought to eliminate the confusion. Sections 11 and 12 of the principal Act provided for the issuing of one certificate of real right of extension /exclusive use areas as reserved by a developer. That position created problems where a real right of extension was subdivided. The amendments proposed in Clause 3(a), 3(b) and Clause 4 addressed the issue.
Section 14 of the principal Act made provision for the cancellation of a registered sectional plan only by order of the Court. However, a registered plan may also be cancelled upon the destruction of or damage to buildings, without the necessity of a court order. Clause 5 made it clear that a court order was not necessary for the cancellation of a sectional plan where the buildings were damaged or destroyed.
Section 15B of the principal Act did not cater for the issuing of a certificate of registered sectional title in respect of a fraction of an undivided share in a unit (e.g. a title deed for a 1/52 share in a unit) in a sectional titles scheme. Clause 6 of the Bill provided for the issuing of a certificate of registered sectional title for a fraction of an undivided share in a unit.
Section 24 of the principal Act required the consent of every mortgagee if the extension of a section results in a deviation of more than 10% in the participation quota of any section. Conveyancers were not in a position to determine a deviation and thus encountered difficulties in obtaining such consents. The amendment of section 24(6)(d) in this clause addressed the problem.
Section 25 of the principal Act did not provide for the extension of a scheme by the addition of rights to exclusive use only. Such an extension was only possible where the rights were linked to the extension of a scheme by the creation of new sections in such scheme. Clauses 8(a), (b), (d), (h) to (m) remedy the defect by making it clear that a scheme could be extended by the addition of exclusive use areas only. Section 25 also did not have a mechanism to extend the period of time in which a right of extension must be exercised. Clause 8(b) catered for such an extension upon agreement between the developer and the body corporate. Clauses 8(b) and (c) provided for the reservation of a right of extension in respect of a building(s) that already exist.
It was necessary to reconcile the provisions of sections 25(4)(a) and 27(6) of the principal Act with the provisions of the National Credit Act of 2005, since the repeal of the Mutual Building Societies Act No 24 of 1965 and the Building Societies Act No 82 of 1986. Clauses 8(f) and 9(d) achieved this goal.
The amendment of section 27 of the principal Act as proposed in Clause 9(a) made the registration of exclusive use areas on a sectional plan obligatory. The amendment of section 27(4) of the Act as proposed in Clause 9(b) provided for the vesting of an exclusive use area in the body corporate free from any mortgage bond, a registered lease, usufruct, habitation or usus.
Section 29(3) of the principal Act provided for the consent of every bondholder for purposes of the registration of a servitude over land in a sectional title scheme. New bonds were registered on a daily basis and it becomes virtually impossible to get the consent of every such bondholder. Clause 10 therefore provided for the obtaining of the consent of bondholders that exist on the date of execution of such servitude or agreement.
Section 37 of the principal Act did not oblige a developer to pay attributable costs in respect of areas of common property subject to future developmental rights. The deletion of section 25(2)(e) and the amendment of section 37(1)(b) in Clauses 8(e) and 11(a) of the Bill, addressed the problem. The addition of the proviso to section 37(2) as proposed in Clause 11(b) gave clarity on the payment of contributions in cases where ownership of units had changed. Section 37 of the principal Act did not provide for the levying of special contributions and the amendment proposed in Clause 11(c) merely confirms and legalises a situation that had existed for a considerable number of years.
The clause provided for the amendment of section 44 of the principal Act to include the regulation of the use of exclusive use areas for purposes shown on the registered sectional plan.
This clause amended section 54(2) of the principal Act to provide for the change of name of the Association of Law Societies of the Republic of South Africa to the Law Society of South Africa.
Clauses 14 and 15
Sections 60 and 60A of the principal Act contained provisions in respect of savings and transitional provisions that had already lapsed. Clauses 14 and 15 made provision for the removal of the lapsed provisions.
Clause 16 contained the short title of the Bill.
Mr M Makhubela (COPE, Limpopo) referred to Clause 2 of the Deeds Registries Amendment Bill, and asked about the discontinuation of the registration of mineral rights in the Act. What happened in the interim period whilst the Bill was still being processed, where a person had already started the process of registering mineral rights at a deeds registry? He referred to Clause 3 of the same Bill which allowed the Minister to appoint alternate board members when the need arose. Was the appointment of the alternate board members only for that specific meeting or was the appointment to stand for all meetings?
Ms Reynolds replied that mining legislation did provide for a transitional period regarding the deregistration of mining rights in deeds registries.
Mr Lefafa expanded that mining titles used to be registered in deeds registries. When the Mineral and Petroleum Resources Act came into place the Department no longer had the competency. It fell within the ambit of the Department of Minerals and Energy. Applications would be handled by the Department of Minerals and Energy.
Mr Makhubela was concerned that the problems experienced with the implementation of the Firearms Control Act would repeat itself with the current provision.
Mr Lefafa said that everything was running smoothly with the process. Ms Reynolds added that there were different periods for deregistration. There was ample time.
Mr D Worth (DA, Free State) asked why both Bills were section 75 bills and not section 76 bills. He pointed out that both Bills were technical in nature and that many bodies or organisations had been consulted. Did the bodies make inputs or lodge objections on either of the Bills?
Mr Lefafa replied that the classification of bills as either section 75 or section 76 of the Constitution was always a problem. Sometimes the difference was blurred. The Bills were classified as section 75 bills.
The Chairperson also asked why the Bills were classified as section 75 bills which did not affect provinces.
Ms Williams replied that guidance was taken from a list contained in a schedule in the Constitution which assisted with the classification of bills as either section 75 or section 76 bills. The Deeds Registries Bill for instance spoke to deeds registries and did not for example deal with land use issues that would affect provinces. Deeds registries were not listed in the schedule contained in the Constitution.
Ms Reynolds replied that the organisations did make inputs. The inputs made were proposals for amendments. The organisations were represented on the Boards as well.
Mr Lefafa explained that the appointment of alternates by the Minister was for the term of office. The appointment was not for specific meetings.
Mr S Plaaitjie referred to the amending and regulating of the Sectional Titles Amendment Bill and asked whether there was not over regulation. He said that planning was approved at lower levels. How did the Bill enforce implementation on an entity that had its own autonomy? He referred to the amendment in Clause 4 of the Deeds Registries Amendment Bill requiring personal information. Was the information not already obtained?
Ms Reynolds replied that the full names and marital status information was now required for documentation such as cancellation of bonds or for powers of attorney. Full particulars were already contained in deeds.
Mr Worth said that the Memorandum at the end of the Sectional Titles Amendment Bill stated that the Bill need not be referred to traditional leaders. He asked what about instances where traditional leaders subdivide property or land. The Bill made provision for fractions of title deeds. Was it really practical? How small was a fraction to be?
Ms Reynolds replied that the fraction was an undivided fraction. It did not refer to the registration of a bathroom or toilet. The Sectional Titles Act spoke about joint ownership of property being divided into shares. The Bill made provision for the division of property not only in joint ownership but also property that was wholly owned by an individual.
Mr Lefafa said that the division of traditional land had to abide by the Sectional Titles Act. There could be a sectional title registration.
Mr Plaaitjie asked how the amendments were to assist government with its asset register.
Mr Lefafa stated that the Government Asset Register was a separate issue.
Ms Williams added that the only time when traditional leadership was taken into consideration was if bills contained provisions on customary law. Both Bills did not contain customary law provisions.
Mr Worth referred to Clause 7 of the Sectional Titles Amendment Bill and asked if the 30 days notice by way of registered post was acceptable.
Ms Reynolds responded that the Banking Council themselves had proposed the 30 days notice period.
The meeting was adjourned.
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