Title Deeds: Deeds Registry briefing; Housing Consumer Protection Bill: adoption
30 November 2022
Chairperson: Ms R Semenya (ANC)
On a virtual platform the Portfolio Committee considered the B version of the Housing Consumer Protection Bill [B10B-2021] and adopted it and the Committee Report on the Bill. Most of the amendments were minor due to the renumbering caused by the removal of clause 39 which provided for the establishment of a non-profit company. The Committee Report was amended to reflect the rationale for the removal of clause 39 and to state that not all the issues raised at the public hearings were included in the Bill as many were not directly related to the Bill but human settlements in general. On the consolidated report on the provincial public hearings, Members made it clear that their mandate was to provide oversight of the Department of Human Settlements to ensure that it followed up on these concerns raised during the public hearings.
The Office of the Registrar of Deeds (OCRD) briefed the Committee on title deeds.
Committee members requested clarity on the Deeds Registry’s role in the issuing of title deeds. The response was the Registrar did not issue title deeds, deeds of transfer were registered by the Registrar. Also in response to Members' questions, the OCRD said that issues around land allocated by traditional leaders fell outside the parameters of the Deeds Registry. It said that for deeds of grants which did not confer full ownership, legislation enabled the upgrading of these tenure rights from grant rights to full ownership. The OCRD highlighted the importance of the conveyancer in the sale of property after Members said that communities complained about the high costs involved in the transferring of property. Conveyancers provided protection to consumers who were protected by the Fidelity Fund in cases of financial mismanagement.
Housing Consumer Protection Bill: finalisation
Ms Thiloshini Gangen, Parliamentary Legal Advisor, said she had liaised extensively with the state law advisor and she would be taking the Committee through the final version of the A list and the B version of the Bill. The Bill contained one small error which was an incorrect reference to a clause.
In going through the A list changes, Ms Gangen noted that the Clause 2 wording had been changed to make the clause sound better. She reminded the Committee that clause 39 that referred to the non-profit company was removed.
The Chairperson requested the Committee adopt the A list with the amendments.
Adv M Masutha (ANC) said the amendments were the best formulations and he was impressed.
The Committee adopted the A list (see document)
Ms Gangen went through the B version of the Bill noting that the cover page was amended to read “As amended by the Portfolio Committee on Human Settlements”.
The Chairperson noted the reference to “Minister of Human Settlements, Water and Sanitation” on the cover page. She said the minister was now the Minister of Human Settlements.
Ms Gangen explained that it was previously the Minister of Human Settlements, Water and Sanitation who had introduced the Bill so it would remain the same.
Ms N Sihlwayi (ANC) requested clarity. Was the current Minister not involved with the Bill?
The Chairperson said that the Bill would reflect the person who introduced the Bill until it was adopted and enacted. It was not a private members Bill, it was a Bill that was introduced by the Minister. At the time of introduction, the minister was the Minister of Human Settlements, Water and Sanitation.
Adv Masutha said the Chairperson was spot on in her explanation. Once the Bill was introduced in terms of the Constitution by either a committee, a minister or a private member, it was no longer their Bill, but Parliament’s business. From then on, the Minister no longer had a role to play.
Ms Gangen said she could not have explained it better than the Chairperson and Adv Masutha. It was for exactly those reasons it read as it did.
Ms Gangen pointed out that the Committee removed clause 39 so all the clauses thereafter moved one up so clause 40 was now clause 39 and so on. The numbering consequential amendments were noted.
Page 2, definition for “certifier” now referred to section 69;
Page 6, space removed before definition of “head of department”;
Page 6, definition of “ homebuilding contract” now referred to section 47;
Page 6, definition of “Home Building Manual” now referred to section 85;
Page 7, definition of “inspector” now referred to section 69;
Page 7, definition of “technical requirements” now referred to section 85(1);
Page 8, at section 2(5)(a) and subsection (b), the insertion of the words “from the provisions of this Act”;
Page 9, section 6(8) now referred to section 89(1);
Page 9, in section 7(5), moved the words “within which period the Minister must appoint the replacement” to the end of section;
Page 10, section 8(3)(a) now referred to section 89;
Page 12, section 13(5)(a) now referred to section 87;
Page 12, section 14(1)(j) now referred to section 39;
Page 13, section 14(1)(o) now referred to section 49(1)(b);
Page 13, section 16(2) the word “only” has been placed in the middle of the sentence;
Page 15, section 25(5) now referred to section 39;
Page 15, section 25(6) now referred to section 39;
Page 16, section 27(2)(a) now referred to section 63 or section 64;
Page 16, section 27(2)(a)(i) now referred to section 63(6) or section 64(6);
Page 16, section 27(4) now referred to section 89(2);
Page 17, section 30(5)(b) now referred to section 39;
Page 17, section 30(8) now referred to section 63 or section 64;
Page 17, section 30(9) now referred to section 63(6) or section 64(6);
Page 18, section 35(1) now referred to section 41;
Page 19, section 35(2) now referred to section 41;
Page 18, section 34(1)(b) now referred to section 42(3);
Page 19, section 38(7) now referred to section 39;
Page 20, section 40(5) now referred to section 39(2);
Page 21, section 41(1) now referred to section 42(1);
Page 21, section 42(1) now referred to section 40;
Page 21, section 42(2) now referred to section 43;
Page 21, section 42(3) now referred to section 41;
Page 22, section 42(3) now referred to section 43 twice;
Page 22, section 42(5)(a) now referred to section 43;
Page 22, section 43(a) and (b) now referred to section 42;
Page 21, section 42(2) now referred to section 43;
Page 23, section 48(d) now referred to section 41;
Page 23, section 48(d)(i) now referred to section 40
Page 23, section 48(d)(iii) now referred to section 40;
Page 26, section 59(4) now referred to section 65;
Page 27, section 61(1)(a) now referred to section 64(6) and 63(6);
Page 27, section 61(1)(d)(ii) now referred to section 87(1);
Page 27, section 61(5) now referred to section 72;
Page 28, section 63(1)(i) now referred to section 64;
Page 29, section 64(1)(d) now referred to sections 81, 82 or 83;
Page 29, section 64(7) now referred to section 65;
Page 30, section 66 now referred to section 67 or 68;
Page 30, section 67(1) now referred to section 66;
Page 31, section 68(1)now referred to section 67 and section 66 respectively;
Page 32, section 71(1)(6) now referred to section 70;
Page 32, section 75 now referred to section 65;
Page 33, section 78 now referred to section 72, 73, 74, 75, 76 or 77;
Page 36, section 92 now referred to section 91;
Page 38, in 2.7, reference to a non-profit company had been removed.
On section 8(3)(a) Adv Masutha asked how correct were the words “appoint the replacement”. Was a replacement effected or appointed? Could a person be called a replacement in English? As English was his second language, he wanted to be sure that this was correct.
Ms Gangen said the drafters were satisfied with the term “replacement”. If they felt that it was not appropriate, they would have changed the word.
Adv Masutha said he wanted to be sure that in ordinary spoken English this was appropriate.
The Chairperson insisted that this was not a big issue.
Members agreed to all the amendments with no further debate.
Ms Sihlwayi moved that the Bill be adopted by the Committee,
Mr C Malematja (ANC) seconded the adoption of the Bill.
The B version of the Bill was adopted.
Mr Tseki asked if the B version could be circulated with the changes highlighted.
Ms Gangen replied that the legal team would be happy to share the highlighted amendments for ease of reference for Members. She would send it to the Committee Secretary for circulation.
The Chairperson asked Ms Gangen what the next steps were.
Ms Gangen replied that the Committee had adopted the B version and it would now adopt its report. The Committee would then be done with its role on the Bill.
Mr Tseki asked where the Bill would go next. He assumed that it went to the National Assembly and the Committee was going to be tabling it.
The Chairperson agreed and said that was why a report needed to be presented.
Committee Report on Housing Consumer Protection Bill
Ms Kholiswa Pasiya-Mndende, Committee Secretary, read through the report.
Ms Mokgotho requested clarity about point six which stated that the Committee had responded to the issues of the people who attended the public hearings.
The Chairperson clarified that the point read as the Department had responded to the issues and not the Committee. The Department had come to the Committee to present its responses.
Ms E Powell (DA) suggested adding that the Committee made a number of changes to the Bill. For example, the reason the Committee had rejected clause 39 and it had discussed the rationale for reducing fees for small-scale entry market builders and developers. For future readers of the report, it would not be very clear what the Committee did to safeguard the industry. This report was an opportunity for the Committee to reflect the changes made, why those changes were made and the discussions had.
Mr Tseki agreed that the Committee’s reasons for changes must be reflected. The benefits and the improvements must be illustrated. The rejection of clause 39 was irrelevant. The report should not reflect what the Committee rejected but rather the positive aspects that they agreed on. The intention was to respond to the constituencies that would benefit from this Act.
Dr N Khumalo (DA) agreed that the entire work of the Committee needed to be reflected in the report. Whether it was rejection or improvement, there were reasons for every change made.
Ms N Tafeni (EFF) referred to point six: "the Department had responded to the issues of the people who attended the public hearings". DHS should tell the Committee which issues they were able to respond to because it was the Committee who was moving around the country for the public hearings. The Members would like to know which issues were resolved from the concerns put forth by communities.
Adv Masutha disagreed about point six. He understood where Members were coming from but warned the Committee not invite complications for itself where it was not necessary. The moment the Committee adopted an approach that sought to explain the reasons for every other clause, it was going to have to deal with all the suggested changes, whether they were received orally or in writing, and address the reasons they were agreed or not agreed to. Even if all Members agreed, the reasons amongst them might be different. The Committee would be involved in the impossible task of splitting hairs trying to indicate who agreed to what on what basis. It was either the Committee explained all the reasons properly and fully which could be textbook lengthy or alternatively stay out of it. It was the Committee’s constitutional responsibility to listen, hear the views of the public, take them into account – which he believed they did. It sufficed to give that assurance that the Committee did unless somebody felt the Committee did not.
The Chairperson replied that the changes made were in the Bill and in the report. The report outlined what the Committee had done in the process of arriving at this point. The individual issues and changes raised by Members were part of the Committee minutes which would be adopted.
On point six of the report "the Department had responded on issues that were raised in the public hearings", based on the Bill. In that meeting, the Committee agreed that the Department should develop a plan of action on Human Settlements problems that were not Bill-related which the Committee would continually follow up and receive feedback on. The Department said it established a task team which would deal with the issues raised by communities but not addressed in the Bill. The Committee was now reporting on the Bill.
The Chairperson said that the Committee Content Advisor had distributed the public hearings reports of the last three provinces visited. The reports of the other provinces were already adopted. The reports isolated the problems that people had raised about the Bill itself. In a previous meeting, the Committee had said clause 89 had to be put in the report because there was a certain format required for the report. The other concerns were reflected in the Committee minutes as part of the Committee record and were not lost.
The Committee Secretary explained that this was the short report on the Bill. The only thing she could do was to list the Committee amendments but not add the deliberations because they appeared in the minutes. The minutes for each meeting stated clearly what was deliberated on. She would add the adopted A-list as part of this report to show what was amended.
Mr Tseki said the Chairperson’s explanation covered all Members, particularly what was raised by Ms Mokgotho. He compromised his view and agreed with the Chairperson’s summary. When the Committee reported in the National Assembly, political parties would be allowed to present in their own way.
Ms Mokgotho said point six should not be general. The words “issues raised” meant that it included both the concerns about the Bill and those not on the Bill such as general problems communities had. That was why she needed clarity. She was aware that DHS may have responded about the Bill but did not respond to all the other issues that were raised.
The Chairperson said Ms Mokgotho was correct hence she clarified that this report was on the Bill itself. The Committee had gone out to solicit views on the Bill but ended up having to listen to communities’ other problems about Human Settlements. The Committee had agreed to isolate those concerns from the Bill and DHS would have to come back and respond to these. The Committee Content Advisor had been asked to consolidate these concerns, develop a report which would then be adopted by the Committee to follow up on the issues. The Committee Secretary had added the words “the Bill” to point six which would cover the problem.
Ms Sihlwayi said the Bill was a mechanism to address the issues of Human Settlements. The Bill presupposed that it was aware of and understood the problems of Human Settlements but did not detail the issues because it was an Act which had intentions and purposes. The Bill outlined what certain role players had to do and how those things would be done. Concerns raised in the public hearings would be dealt with in terms of implementation and rectifying. She was happy with the Chairperson’s response that the particular issues raised would be packaged and sent to the Department to engage with as there must be a separation between the Bill and general issues raised in communities. Although they were not mutually exclusive, the former related to an Act of Parliament while the latter related to the administration and implementation role of the Department. If issues were not addressed and implemented accordingly, reference would be made to the Act. The Act was a tool to enforce implementation in administration in different spheres of government. She said her view may not be absolute.
Adv Masutha agreed with the Chairperson's approach on what the Committee was mandated to do by Parliament. Parliament had referred the Bill to the Committee; the Committee did not refer the Bill to itself. Parliament expected the Committee to report back on the task it was given. The Committee completed that task and was now reporting back to Parliament, that was it. The Committee did need to confirm that they engaged in public consultation because that was a constitutional requirement in law-making. He did not have a problem with a general statement in point six that referred to the Committee and not the Department because it was no longer the Department’s Bill. The Department was merely assisting the Committee at a technical level to clarify certain issues to the public on the Committee’s behalf. However it would not be wise to even mention the Department responding because it formed part of this process. This Committee was the one with the obligations about the public inputs that did not relate directly to the Bill. The Committee had referred those matters to be dealt with by DHS on an ongoing basis and would continue to exercise oversight to ensure the concerns were addressed going forward. All the Committee needed to do was to give assurance that it took account of all the suggested amendments to the Bill. It did not need to give details on what it did or did not consider. The only other body that would deal with the Bill once it was adopted was the House itself. Once the Committee had presented the Bill to the House, it would no longer be the Committee’s Bill but the House’s Bill. The Department was simply assisting the Committee to respond to those concerns.
Ms Gangen said the legal team had received the final version of the B-Bill while in the meeting which reflected the corrections and would be circulated to the Members The Department was of the view that the entire removal of clause 39 was quite a substantial deletion and therefore it requested that it be indicated to some extent in the report. It would be prudent to alert whoever read the report that the clause was no longer in the Bill subject to the Committee’s view.
In the meeting chat, Dr Khumalo agreed with Ms Gangen.
The Chairperson said the A-list would be attached to the Committee Report. Did this approach cover the Department’s instruction?
Ms Gangen replied that the Department requested a sentence or two explaining the removal of clause 39 for ease of reference in addition to the A-list.
Adv Masutha agreed with Ms Gangen’s advice. The removal of the clause was a policy shift made to the Bill because law reflected policy. It would be prudent to be transparent about the reasons for making such a substantial deviation. It was just a matter of being careful in the manner in which those reasons were couched so that the Committee did not open up a can of worms with different people expressing different views culminating in an endless debate.
The Chairperson reminded the Committee that the agreement for the removal of clause 39 was based on lack of urgency for putting it in the Bill. If the Department still felt it needed to proceed with the NPC, it would follow the relevant process at the time to implement it. The word “may” in the clause could have opened up the clause for manipulation by those implementing the Act. That was what the Committee agreed on and there was no problem in putting that as the reason in the report, along with the A-list.
Adv Masutha said that the reason could be put in very simple words. He lost network connection before he could propose the wording.
Ms Sihlwayi moved for the adoption of the report with the amendment
Ms Powell objected the report on behalf of the DA.
Ms Tafeni seconded the adoption of the report with the amendment particularly in respect of the EFF contribution to the Bill.
The Committee Report was adopted.
Consolidated Report on Provincial Public Hearings for Housing Consumer Protection Bill
Mr Sabelo Mnguni, Committee Content Advisor, went through the report incorporating all the provinces.
Adv Masutha noted that in the disability sector the appropriate terminology was “people with disabilities” not “people living with disabilities”.
Mr Tseki said that the concerns raised by communities needed to be programmatised for response by the Committee. He proposed that arrangements be made to deal with these or alternatively meeting the people in the communities. He wanted the Department to find a way of reporting its responses on the specific issues raised by communities.
The Chairperson asked the Committee Content Advisor how many reports were outstanding.
Mr Mnguni replied that the Public Hearings reports had been drafted for all the provinces. This was the consolidated report for all nine provinces.
On the other concerns relating to Human Settlements, the outstanding provinces were KwaZulu-Natal, Northern Cape, Gauteng, Free State and part of the Western Cape. The issue in the Western Cape was that there were many Afrikaans submissions that needed to be translated and this was being worked on.
The Chairperson said the Department tried to pick up on all the issues raised, including those received from the Committee. Did this mean the Department did not receive the submissions from the Western Cape, KwaZulu-Natal, Gauteng and Free State? She wanted the Committee to be systematic because the concerns were individual based issues raised by community members.. There were also systemic issues like the non-availability of National Home Builders Registration Council (NHBRC) inspectors and the entity’s non-existence in Northern Cape for example. But she did not want the Committee to lose sight of the concerns of individual community members because they wanted the Department to give feedback on them. Now that the report was consolidated, would those individual concerns not be lost?
The Chairperson noted the debate in the House on the Bill would depend on the programming committee. There was no certainty but the Committee would negotiate for it to be debated before Parliament rose.
Mr Mnguni explained that a framework had been developed from all the written submissions with four categories: name of the person, cellphone number, address and their issue. For example, if a person said that they had been waiting for a house since 1990, this would be indicated and the Department could follow up by using either the phone number or address provided. The address included the the specific ward they were referring to.
The Chairperson said this meant that as the Committee got specific feedback from the Department and it would not be general in its response. It would identify specific persons, the specific issue and how far it had gone to deal with the issue.
Mr Mnguni confirmed this.
Adv Masutha suggested that the Committee simply defer their role in exercising oversight on the implementation of all the concerns, whether they were individual or systematic, as forming part of the ongoing oversight work by way of requiring (inaudible). Where the Committee went back to communities to follow up, it could that it was not the same people attending who had raised the complaints there. Therefore, the Committee should not over-commit beyond its general oversight role in Parliament beyond expecting DHS to report on a regular basis on progress on the resolution of concerns raised by citizens during the public hearings.
The Chairperson said her understanding from Mr Mnguni’s explanation was that the Department would receive this report and the information of those individuals that raised issues in the public hearings that needed to be addressed by the Department. When the Department responded, it would identify those that were systemic such as strengthening the NHBRC. It would also identify those that were individual-based and attend to those. The Department could submit a written report stating what it had done to resolve those. The Committee would then look at the list when conducting oversight and determine if DHS had indeed resolved the matters. The Committee would not call a forum and give the community members feedback. They would just confirm through the Committee staff if individual issues had been finalised and how they were finalised without going and checking on individual houses as a Committee.
Mr Masutha said as long as it was anecdotal and the Committee was not committing themselves to go to each and every individual’s house. Even when the Auditor-General sampled, he did not audit every single thing that happened. Sampling was fine just for reassurance and quality assurance.
The Chairperson asked for the adoption of the report as a true reflection of what the Committee found on the ground, which would be part of their ongoing oversight on matters raised by communities.
The Committee adopted the report.
Office of the Chief Registrar of Deeds Presentation
Mr George Tsotetsi, Registrar of Deeds: Legal Support and Deeds Training, OCRD, presented the process and procedure for issuing title deeds, in particular for RDP houses.
Duties of the Registrar of Deeds
These are in section 3 the Deeds Registries Act and include taking charge of and preservation of records, record notices and court orders and it keep registers necessary for giving effect to the Act.
Key Deeds Registration Concepts
Lodgement: Process of submitting deeds to a deeds registry.
Examination: Process of verifying registrability or otherwise of deeds.
Numbering: Process of giving numbers to deeds for distinguishing between different deeds for retrieval purposes.
Black booking: Process of verifying presents or otherwise of impediments to registration e.g. sequestration.
Execution: Process of signing deeds to signify assent to registration.
Key Deeds Registration Officials
- Registrar of Deeds: Attests to deeds.
- Conveyancer: Prepares deeds, attends to queries raised and executes deeds.
(see document for the work flow in a Deeds Registry)
Who Initiates Deeds Registration
- In terms of section 16 read with section 20 of the Deeds Registries Act land ownership is transferred from one person to another by the registration of a deed of transfer prepared and executed by a conveyancer authorised by the owner.
- The registrar of deeds does not issue title deeds, but registers deeds of transfer conveying ownership from one person to another.
Role that can be played by Registrar of Deeds
Regulation 45(3) of the Act provides for registration of deeds on the sixth working day after lodgement and gives the registrar of deeds the discretion to permit registration before the sixth working day after lodgement. The Registrar of Deeds would exercise this discretion upon request by the conveyancer who had lodged the deeds.
Adv Masutha asked Mr Tsotetsi to clarify his statement that the Registrar did not issue title deeds but registered transfer of title deeds. His understanding was that property that was the subject of a title deed could not have a new title deed created for it. All one could do was transfer ownership or title from the one person holding the title to the other, whether by sale of the property or through succession and so on. South Africa had a unique situation where black people under the Land Act could not own land. The forms of tenure under which they could acquire occupation and use of land would be through some other form other than by way of acquiring a title deed such as a deed of grant. In the case of communal land ownership, his understanding was that title deeds were not even issued at all because land was collectively or communally owned by that community but under the trusteeship and management of the sovereign or whoever was the traditional leader. This leader administered the land for the benefit of his community but did not necessarily as an individual own the land.
Once pieces of land in a traditional area had been allocated, what was the status of occupation of that individual beneficiary who received the land from the chief? What was this called and what legal protection accrued from such allocation? This point also related to the process to be followed upon succession whether in terms of a will or intestate succession.
The presentation said the owner would be the one who initiated the transfer but in the case where the owner was dead, who initiated the transfer? Was it the executor who had been confirmed by the Master? If so, what was the process from the point the executor was appointed all the way to the distribution of the deceased estate and confirmation of the registration of transfer from the deceased’s name to the heirs under intestate succession or a will?
Adv Masutha wanted clarity of the sequence because his concern was that informal transfers were taking place which were not recorded at the Deed’s Office. People were inheriting without official transfer. How were these layers of succession that had not been completed by deed transfer being dealt with?
Mr Tsotetsi explained that the Registrar of Deeds would receive a deed of transfer prepared and lodged by a conveyancer together with the title deed for the purposes of registering the transfer to the new owner. In practice, the old title deed would be endorsed with a transfer endorsement to indicate that it was a dead title. There would be a new title deed after registration. The new title deed would have been registered and numbered. The deed of transfer that came into the Deed’s Registry transposed into a title deed after registration, hence it would be given a new number and signed by the Registrar of Deeds. His point was that the notion of the Registrar of Deeds issuing title deeds was a misnomer. Deeds of transfer got registered.
On land in communal areas, from a deeds registration point of view, the owner of the land which had been surveyed and for which there was a title deed would always be the state.
Mr Tsotesti explained that the status of the rights of people to whom land had been allocated by traditional leaders was a matter that fell outside the parameters of the Deeds Registry. However, those rights were protected by the Interim Protection of Land Rights Act (IPILRA). Those issues are not dealt with in the Deeds Registry.
On succession, section 102 of the Deeds Registries Act has a definition of “owner” which includes the legal representative of a person who had since died, which was the executor. The person who would initiate registration once the registered owner died would be the executor who would have been appointed by the Master of the High Court. If there is not an executor, then an administrator in terms of 18(3) of the Administration of Estates Act would do that. The person who had been appointed to deal with the estate takes the steps required between the death and the registration. The Deeds Registry did not even know at a particular given moment that the current registered owner had died until the executor registered that at the Deeds Registry. What happened between death and the winding up of an estate fell outside the Deeds Registry's mandate.
Follow up questions
Adv Masutha noted his question on black people not being permitted to hold title deeds under the Land Act. His understanding was that the deed of grant was also handled by the Deeds Office but were not referred to as title deeds. He assumed that people could apply to have the deed of grant elevated, whether on transfer or not, to the status of fully fledged title deeds. He asked if the deed of grant still existed in the system or these had been automatically converted into title deeds? Did they mean the same thing? Were owners entitled to specifically apply to have them registered as fully fledged title deeds?
Mr Malematja referred to Permission to Occupy (PTO) and asked if there was any chance of giving title deeds to people on communal land since they were on their own erfs even though not formally. Would they have their own title deeds which would permit them to venture into business or sell their property in a valuable way? Would there be any provision for such?
Mr Tsotetsi replied to Mr Malematja that PTOs were a tenure matter that was not regulated by the Deeds Registry. Land in the communal areas was registered in the name of the state. It was incumbent upon the state to have township registers for land in communal areas. After opening those township registers, it was incumbent upon the state to transfer the pieces of land on which community members had built their houses. That was not something that could be initiated by the Deeds Registry as deeds registration was always initiated by the person who was registered as the owner in the deeds register. It was for the state to undertake those steps to provide community members in the communal areas with title deeds. The Deeds Registry could not do anything because that fell outside its mandate.
On deeds of grant which were normally registered in the Deeds Registry in terms of Proclamation 293 of 1962, the properties registered by that proclamation were indeed surveyed and there were deeds of grants registered in the Deeds Registry.
The only difference between deeds of grants and the other title deeds was the question of tenure. In the deeds of grants the tenure was not full ownership. In 1991 the Upgrading of Land Tenure Rights Act (ULTRA) was passed. In terms of this Act, all the properties in Schedule 1 of the Act, which included these grant rights, once the township register had been opened, the tenure right was upgradable from a grant right to full ownership. In practice, as and when a deed of grant was being dealt with and it transpired that the upgrading process had taken place, that is a township register had been opened, the Registrar of Deeds was enjoined by section 2(2) of ULTRA to endorse that particular title deed that the grant right there was no longer a grant right but full ownership. So was no need to have a new title. If that grant right was lodged for purposes of registering a bond, the owner need not apply to have a deed of grant endorsed in terms of section 2(2) of ULTRA. The Registrar of Deeds did that in terms of section 2(2) of ULTRA. Once that endorsement was effected, its effect was to upgrade those tenure grant rights to full ownership. In instances where the property had been sold, there would be a new deed of transfer that would be registered, and in that new deed of transfer full ownership to the property was granted.
Follow up questions
Adv Masutha gave an example of where a parent died intestate and left three offspring. The three siblings would become equal heirs to that one single property. How did the OCRD deal with the registration of the title deed for co-owners of the property? Could a title deed be co-owned by more than one person? Did they have to individually lodge? Would a conveyancer act on behalf of all three of them? In African culture, there was the concept of a family home which opposed the idea of an individual having exclusive right of ownership upon the death of a parent but rather allowed for collective ownership, use and enjoyment of that property by different beneficiaries. How was this dealt with?
The Chairperson said a challenge raised by communities was that a lot of money had to be paid to buy land or sell their land or house. Was it not possible to remove the conveyancer as middleman? Could people go to the Deeds Office for help without the involvement of a conveyancer?
Adv Masutha said generally there was a practice in black townships, especially areas where deeds of grants were issued, that municipalities issuing the valuation certificate of the property taxed it at below R250 000. This was to alleviate the burden of having to incur transfer costs and to make it easier for people in those areas who could not afford the costly transfer process. He asked for Mr Tsotetsi’s comment on that.
Mr Tsotesti replied that people can co-own property under one title deed as the definition of “land” in the Act included a share in land. In practice, the three offspring would be a registered owner of a one-third share in the property inherited from their parent. The Deeds Registry did permit having property registered in the name of various persons under one title deed. If there were four people, each one will be an owner in respect of a quarter share.
Although the Chairperson’s idea of removing the middleman was noble, firstly, that matter needed to be canvassed. The Deeds Registry was in the process of having the current Act repealed and replaced by a new act. For now, the conveyancer played a very important role as to finances. The conveyancer kept the purchase price in his trust account and then paid it over to the seller of the property after registration. If he was removed, there was a risk of the finances not being held properly. Nevertheless, this matter was still going to be canvassed going forward.
Perhaps a better solution would be found but currently the reason there was a conveyancer was for the purposes of handling the finances. There was the risk of selling property to someone then that person disappearing with the money with no recourse. When using a conveyancer, the money would be a trust account. A conveyancer was somebody who was accountable to the Legal Practice Council and there was a Fidelity Fund which covered instances such as the conveyancer disappearing with the money.
On municipalities taxing properties below R250 000, the purpose was not to deal with transfer costs and remove the middleman as suggested. Even if a municipality valuated a property at less that R250 000, the Deeds Registries Act would still stand and the deed would have to be prepared by the conveyancer for the reason previously stated. The reason for giving those valuation certificates at less than R250 000 was in terms of the Administration of Estates Act, if an estate exceeded R250 000 that estate must be dealt with by an executor. If it was below R250 000, it must be dealt with by a representative appointed in terms of section 18(3) of the Administration of Estates Act.
The meeting was adjourned.
Semenya, Ms MR
Khumalo, Dr NV
Malatji, Mr T
Malematja, Mr C N
Masutha, Adv TM
Mkhize, Dr Z
Mokgotho, Ms SM
Powell, Ms EL
Sihlwayi, Ms NN
Tafeni, Ms N
Tseki, Mr MA
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