Deeds Registries Amendment Bill; Sectional Titles Amendment Bill: clause by clause consideration

Meeting report

The Chairperson remarked that an apology had been received from the Minister for Rural Development and Land Reform, who was unavoidably absent, as he had to attend another meeting.

Deeds Registries Amendment Bill: clause by clause consideration
The Chairperson Mr J Thibedi (ANC) read out the objects of the Bill: to amend the Deeds Registries Act, 1937, so as to provide discretion in respect of the rectification of errors in the name of a person or the description of property mentioned in deeds and other documents; to provide for the issuing of certificates of registered title taking the place of deeds that have become incomplete or unserviceable; to substitute an obsolete reference; to substitute an outdated heading; to delete reference to the repealed Agricultural Credit Act, 1996; to further regulate the updating of deeds in respect of the change of names of companies, close corporations and the surnames of women; to amend a definition; and to provide for matters connected therewith.

The Chairperson read out clause 1 of the Bill which sought to insert the words “unless the registrar, on good cause shown, directs otherwise, in section 4(1)(b)(iii) of the Deeds Registration Act of 1937”. The amendment would accord the Registrar of Deeds the discretion not to insist on the lodgment of all affected deeds in appropriate circumstances.

The Committee agreed to the clause.

Clause 2 amended section 38 of the Deeds Registry Act, 1937 which sought to provide for the issuing of certificates of registered title in instances where title deeds became incomplete or unserviceable, which would help facilitate  the application of section 38 with regards to incomplete and unserviceable title deeds.

Mr K Mileham (DA) remarked that there was a grammatical error in clause 2(b) which needed to be corrected.

Mr N Mandela (ANC) asked if the State Law Adviser could advise on the grammatical error.

Mr Sisa Makabeni, State Law Adviser, noted that the sentence in clause 2(b) was correct as it started in the past tense, hence it would be inappropriate to change it.

The Committee agreed to clause 2.

Clause 3 of the Bill sought to omit the reference to the old Survey Act No. 9 of 1927, and reflect the reference to the new Survey Act No. 8 of 1997.

The Committee agreed to the clause.

Clause 4 substituted the words, Rand Township which was outdated, with the area of jurisdiction of the deeds registry at Johannesburg, in order to provide legal certainty with regard to which deeds registry has jurisdiction for the purposes of section 48 of the Deeds Registry Act, 1937. This was especially necessary since there were presently two deeds registries located within the Gauteng province.  

The Committee agreed to the clause.

Clause 5 of the Bill provided for the deletion in section 56(1)(b) of the Deeds Registries Act, 1937,  of the reference to the Agriculture Credit Act no. 28 of 1996.

The Committee agreed to the clause.

Clause 6 amended section 93(1)(a) and (b), and was aimed at addressing the  problems experienced with lodgements of consents and operative deeds in instances of change of names of big companies or close corporations. Clause 6 also provided for the amendment of section 93(1)(c) in order to cater for double-barrel surnames. This was necessary in order to bring the Deeds Registries Act of 1937 in line with section 26 of the Births and Deaths Registration Act, 1992 (Act No. 51 of 1992).

Mr M Swathe (DA) requested clarity on the fate of women who divorced and wanted to go back to their maiden name.

Mr George Tsotetsi, Registrar of Deeds, Department of Rural Development and Land Reform, replied that the amendment targeted by clause 6(c) of the Bill was aimed at alleviating the position of women who were assuming double-barrel surnames. Legislation had already provided for other positions including the one presently raised.

Mr Mileham asked why a person would not be notified or give consent in written form if there was a name change which involved a company or closed corporation. He asked if the Bill was saying that the same person could continue using the document without having to alter his surname.

Mr Tsotetsi replied that the provision especially with the words in parenthesis was only for the purposes of dealing with companies. It was not correct to suggest that the provision in the Bill was implying that the other party should not be consenting.

Mr Mileham agreed with the Department’s viewpoint on the change of name of individuals, but remarked that an individual was supposed to provide his consent in a situation where the individual had a relationship with a land owning organisation that had its name changed.

Mr Mileham referred to the civil union legislation which allowed for same sex marriage. He noted that men can now be legally married to men, and that the amendment that clause 6(c) was addressing did not provide for and include such issues, but only referred to women.

Mr Tsotetsi replied that the civil union issue was not considered in the Bill as the Bill was drafted before the civil union law came into legislation. The Department would however look into that and another bill that would consider the matter would be introduced later.

Mr Mileham asked if the Bill was coming back to the Committee for another meeting before it would finally be tabled in the National Assembly. He asked if it was not possible to include the issue of same sex marriage in the Bill if the Bill was still going to come back to the Committee for final adoption.

Ms Sueanne Isaac, Parliamentary Legal Adviser, noted that the legal arm of the Parliament and Office of the State Law Adviser would need time to research the civil union issue and its implication on the Bill.

The Chairperson stated that it would be fair for the Department and drafters of the Bill to research and refer to the civil union legislation now, and then come back for a final reading and consideration of clause 6(c).

The Committee agreed to the Chairperson’s proposition.

Clause 7’s amendment of the definition of ‘deeds registry’ was consequential to the promulgation of the Mineral and Petroleum Resources Development Act, No 28 of 2002, which provided for the discontinuation of the registration of mineral rights in a deeds registry.

The Committee agreed to the clause.

The Chairperson commented that the Committee had accepted and agreed to all clauses except clause 6(c).

Mr Mileham said he had not received an appropriate answer to the concern he raised in clause 6(a) and (b).

The Chairperson remarked that the Bill would be placed before the Committee on 11 September 2013, and it would be clearer by then.

Mr Brian Mbatha, Acting Chief Registrar of Deeds, Department of Rural Development and Land Reform replied that clause 6(c) could be omitted and included in the next amendment bill, if it pleased the Committee. It might also be left as is, as there were current mechanisms in use in the Department that addressed the issue raised in clause 6(c).

Mr Swathe responded that the Committee had made it clear to the Department that it must go back and address and incorporate the issue of civil union into the Bill. He added that he did not see any reason or logic in leaving clause 6(c) out.

Ms P Ngwenya-Mabila (ANC) said that the Committee had reached an agreement on clause 6(c). The Department had to look at the matter and consider the civil union legislation in clause 6(c) and report back on the amendment in the Bill on 11 September 2013.

The Chairperson stated that the Department had to address the civil union issue raised in clause 6(c), and the Department would have to come back for the acceptance of clause 6(c) after it had been revised. The Bill would only have to wait for about three to four weeks before it would be fully accepted by the Committee.

Sectional Titles Amendment Bill: clause by clause consideration
The Chairperson read out the Long Title of the Bill amending the Sectional Titles Act No. 95 of 1986 which aimed to amend certain definitions; to further regulate notification of the intended establishment of schemes and the sale of units to lessees; to provide for the cancellation of registered sectional plans in a prescribed manner; to regulate the issuing of a certificate of registered sectional title in respect of a fraction of an undivided share in a section; to provide for the deletion of an obsolete reference; to provide for the registration of a transfer of a part of the common property with the consent of the owners of the sections and the holders of registered real rights; to provide for the endorsing of title deeds to reflect amended  participation quota schedules; to regulate the alienation of a portion of land over which a real right of extension or part thereof was registered; to provide for the consent of holders of registered real rights over exclusive use areas to the alienation of common property; to provide for the cession of a mortgage real right of extension and a mortgage real right of exclusive area; to provide for the cancellation of part of a section pursuant to an expropriation; to further provide for the consent of bond holders with the registration of a sectional plan of extension; to provide for the issuing of more than one certificate of real right of extension and more than one certificate of real right of exclusive use area; and to provide for matters connected therewith.

Clause 1(a) of the Bill sought to correct the reference made to architects in the Architects’ Act No. 35 of 1970, which had been replaced by the Architectural Profession Act No. 44 of 2000. Clause 1(b) expanded the reference made to a developer’s agent to relate to the entire section 4 of Sectional Titles Act, 1986 and not only paragraph 3 of the said section. The proposed amendment of definition of land surveyor in clause 1(c) of the Bill sought to clarify which land surveyors may sign a section 7(2)(a) certificate, similar also to the position of architects stated earlier. Clause 1(c) was also intended to reflect the correct short title of the Professional and Technical Surveyors’ Act No. 40 of 1984.

Mr Mileham referred to Mr De Clark’s submission about representatives which the Department agreed with in principle to refer back to the Sectional Titles Regulation Board. He asked if the department had done that and what the response of the Sectional Titles Regulation Board was.

Mr Mbatha replied that the Sectional Titles Regulation Board had its sitting once a year, and the meeting for 2013 would take place on 12 September. The issue being raised was on the agenda for the board’s meeting.

Mr Mileham referred to the Geomatics Profession Bill 2013 which had been adopted by the Parliament, and noted that clause 1(c) of the Bill ought to take the Geomatics Profession Bill into consideration as the new Geomatics Profession Bill would repeal the Professional and Technical Surveyors’ Act No. 40 of 1984.

Mr Mbatha replied that the proposed amendment in clause 1(c) was presently correct as the Geomatics Profession Bill had not been passed into law.

Ms Isaac responded that the Select Committee had passed the Geomatics Professional Bill and it would soon be passed by the National Council of Provinces (NCOP). It was therefore important and apposite to revise clause 1(c) so as to ensure that it did not become obsolete in a matter of weeks.

The Committee agreed on the provisions in clause 1 with the exception of clause 1(c), which they noted had to be revised to consider the new Geomatics Professional Bill.

Clause 2 deleted the reference to the developer’s agent in section 4(3) of the Sectional Titles Act, 1986. The amendment aligned section 4(3) with the definition of developer.

The Committee agreed to the clause.

Clause 3 proposed a prescribed manner to be followed in the amendment and cancellation of sectional plans, which section 14(8) of the Sectional Titles Act was not specific about. The amendment thus provided for a procedure that the Registrar of Deeds would follow in recording the cancellation of a sectional plan.

The Committee agreed to the clause.

Clause 4 of the Bill proposed the addition of new subsections to section 15B of the Sectional Titles Act, 1986. Section 15B(5A) provided for the issuing of a certificate of registered sectional title in respect of a fraction of an undivided share of a section, but needed to also include provisions in respect of application by the owner of a section, as well as the lodgement and endorsement of the relevant bonds and title deeds. The amendment therefore inserted sub-sections 7 to 11 in section 15B.

Mr Mileham referred to subsections 7, 8(a), 8(c) and 8(d) of section 15B, and requested clarification on why someone applying for a certificate would have to submit a certificate as part of the application.

Mr Tsotetsi replied that the Deeds Office was not responsible for the preparation of the certificate, but it always prepared by a conveyancer.

Mr Mbatha added that there was a certificate that would initially be filled by the owner when applying for a certificate of registered title. The conveyancer would then prepare the certificate in a prescribed format, and the application would be in the form of a power of attorney which entitled the conveyancer to prepare the certificate in a prescribed format. The initial application would therefore become a supporting document to the certificate of registered title.

The Committee agreed to the clause.

Clause 5 amended section 17(4) by inserting paragraph (bA), sub-section 4C and substituting subsection 5 with a new subsection. The amendment made it obligatory that the consents and title deeds of affected owners or holders of right of extension or affected holders of exclusive use areas be lodged when part of common property was alienated.

The Committee agreed to the clause.

Clause 6 provided for the necessary inclusion of the cession of mortgaged real rights of extension and mortgaged real rights of exclusive use areas, which Section 18 of the Sectional Titles Act, 1986 was hitherto silent about. The amendment now provided a statutory basis for the cancellation of bonds hypothecating real rights over units, rights of extension and rights of exclusive use areas.

The Committee agreed to the clause.

Clause 7(a) and (b) contained proposed amendments aimed at providing for the cancellation of the registration of part of a section pursuant to an expropriation, which Section 19 of the Sectional Titles Act, 1986 did not provide for.

The Committee agreed to the clause.

Clause 8(a), (b) and (c) provided for the amendment of sections 25 and 27 of the Sectional Titles Act, 1986 to allow for the extension of the time period within which a sectional title scheme may be extended with the consent of the bondholders that are in existence at the time of taking the unanimous resolution by the body corporate. The amendment would assist Notaries to identify the bondholders whose consent was to be sought and would make it possible to issue as much certificates as the developer would require.

The Committee agreed to the clause.

Clause 9 of the Bill amended section 27 of the Sectional Titles Act, 1986, and provided for the possibility of the issuance of more than one certificate of real right in respect of all exclusive use area delineated in the sectional plan, which section 27 of the Sectional Titles Act did not provide for.

The Committee agreed to the clause.

The Chairperson remarked that agreements were reached on all clauses, with the exception of clause 6(c) of the Deeds Registries Amendment Bill and clause 1(c) the Sectional Titles Amendment Bill. Clause 6(c) of the Deeds Registries Amendment Bill would need to address the civil union legislation that allowed for same sex union, while clause 1(c) of the Sectional Titles Amendment Bill needed to make reference to the new Geomatics Profession Bill. The Committee would consider the revision of these clauses, and the final acceptance of the Bills on 11 September 2013.

The meeting was adjourned.