A rose by any other name would smell as sweet......reference to The Bard’s “Romeo and Juliet”. I myself am a bit closer to Boesman and Lena. In other words, a bit at odds with Mr. West’s article.
A. Section 93 of DRA
The section provides for the registrar to require that changes in the name of persons and partnerships be noted against title deeds containing the old name. What is relevant in this discussion is of course surnames. Section 93 of DRA provides as follows:
93. Registration of change of name —(1) If any person....whose name appears in any registered deed or other document has changed his or its name, the registrar shall, upon written application by that person.....accompanied by proof of the change of name....endorse on the said deed or other document that the name of the person....has been changed to the name stated in the application: Provided that—
(c) a person—
(i) who assumes his or her spouse’s surname or resumes his or her former surname; or
(ii) who, whether in a civil union, married or divorced, or a widow, adds to the surname which he or she assumed after the union or marriage, any surname which he or she bore at any prior time,
shall not be obliged to record such assumption or resumption of surname against any registered deed or other document to enable him or her to deal with land or a real right in land held by him or her under such deed or other document.
Section 93 of DRA must be read with section 26 of the Births and Deaths Registration Act, Act 51/1992(BDR), which reads as follows:
26. Assumption of another surname —(1) Subject to the provisions of this Act or any other law, no person shall assume or describe himself or herself by or pass under any surname other than that under which he or she has been included in the population register, unless the Director-General has authorized him or her to assume that other surname: Provided that this subsection shall not apply when—
(a) a woman after her marriage assumes the surname of the man with whom she concluded such marriage or after having assumed his or her surname, resumes a surname which she bore at any prior time;
(b) a married or divorced woman or a widow resumes a surname which she bore at any prior time; and
(c) a woman, whether married or divorced, or a widow adds to the surname which she assumed after the marriage, any surname which she bore at any prior time.
(2) At the request of any person, in the prescribed manner, the Director-General may, if he or she is satisfied that there is a good and sufficient reason as may be prescribed for that person’s assumption of another surname, authorize the person to assume a surname other than his or her surname as included in the population register, and the Director-General shall include the substitutive surname in the population register in the prescribed manner.
Keep in mind that section 93(1)(c) of DRA was amended specifically to be in line with section 26(1)(c) of BDR. Consequently Registrars Conference Resolution 20/2005, which required a section 93 of DRA application where a surname was added to until section 93 of DRA was brought in line with section 26 of BDR, was also withdrawn.
Whilst the DRA refers to “his or hers”, BDR does not do so. Section 26(1)(a) to (c) of BDR specifically refer to “a woman”. Instead, in the case of a male who wishes to assume or resume a previous surname, add to his surname or wishes to assume his spouse’s surname, would have to submit a request in terms of section 26(2) of BDR to the Director General for approval of such assumption.
Mr. West deals with the different scenarios under separate headings, which I will follow for ease of reference:
Retention of maiden name
I agree that section 93 is not obligatory in this case, but cannot agree with the reference to the “(born Lavigne”, should that be a reference to the vesting clause in a title. It may be practice in other deeds registries now, but it was never practice in the Cape Town deed registry to refer to former surnames in the vesting clause, if that is what is meant. It is also not in line with section 17(2) of DRA. One must keep in mind that the practice of referring to the former name where a person has changed name was instituted for “black booking” purposes, so that “black booking” would be performed on both the old and the new surname, and that is only performed in respect of transferors, mortgagors, etc. i.e. persons who are dealing with/disposing of land/rights in land. It did not have as a main purpose establishing a nexus, only to ensure that proper/complete “black booking” was performed.
As for a nexus to be established, there is no need for that in regard to a vesting when land or a real is registered in the name of such a person. Maybe the paragraph need to be qualified as to in which clause of a deed exactly such reference is required.
RCR24/2007 states quite clearly that lodgement of proof of the retention of a person’s maiden name is not required as it is covered by regulation 44A of DRA. Examiners are legally trained persons and should be able to understand that that a person may retain his/her maiden name and that spouses may have different surnames, and that regulation 44A of DRA applies. I fail to see how of regulation 44A of DRA should apply to the extent that proof of the retention of the maiden or former name is not required but former names must be disclosed in a vesting clause (if that is what is referred to in the article).
Assumption of double-barrel surname
I fully agree with what Mr. West states under this heading.
Reversion to maiden name
I cannot agree that proof is needed when a woman decides to revert to her maiden name. This falls squarely within the provisions of regulation 44A(d)(i)(aa) of DRA which is confirmed by RCR25/2007 – the registrar should simply accept the change in surname on face value, however difficult this seems to be to examiners. Section 15A(3) of DRA must prevail – “.... A registrar shall accept...”. A nexus is easily established by means of the first names and identity number of the person concerned, if that is the concern.
Retention of married surname
Change of double-barrel surname
Again this cannot be correct. Section 93 of DRA certainly does not require an application to be made in such a case. In fact, this will amount to nothing else than a resumption of a former name as envisaged in section 93(c)(i) of DRA.
In my opinion a copy of any approval of the Director General required for a man’s assumption of another surname or addition to his surname must be obtained by the conveyancer and retained on his file as the correctness of the person’s name etc. falls squarely under the conveyancer’s responsibilities in terms of regulation 44A of DRA.
Examiners use section 4(1)(a) of DRA as a sort of “ cover all” to call for whatever proof they think may be necessary. Section 15A(3) of DRA and regulation 44A of DRA makes those matters referred to in regulation 44A of DRA solely the responsibility of the attorney/notary/conveyancer, in other words, matters that need NOT be proved to the registrar. Section 4(1)(a) of DRA read as follows:
4. Powers of registrar —(1) Each registrar shall have power—
(a) to require the production of proof upon affidavit or otherwise of any fact necessary to be established in connection with any matter or thing sought to be performed or effected in his registry;
The matters set out regulation 44A of DRA do not need to be established to the satisfaction of the registrar – section 15A(3) of DRA states that “....a registrar shall accept......”. Examiners must therefor be prudent when relying on section 4(1)(a) of DRA as authority to call for proof of facts. It may very well not be available in the specific case.
I fully concur that the reference to former surnames do not have to be disclosed in the vesting clause of a deed. However, I am of the opinion that if one assumes a surname at marriage and before the dissolution of the marriage changes that surname to a pervious or married surname, this will be tantamount to a change of name and the provisions of section 93 of the DRA will be peremptory.
It is trusted that this matter will be deliberated at the upcoming Conference of Registrars and a uniform practice will follow. In the same vein it is submitted that if one assumes a double barrel surname and opts to change back to a former surname this will also be tantamount to a change of name and must be recorded in terms of section 93. Cognizance must also be taken of the fact that when section 93 was amended, the word woman was substituted with person.
In terms of Section 26(1)(a) and (b) BDR the dissolution of a marriage is not a prerequisite for a woman to resume a surname she bore at any prior time. Section 93 DRA doesn't apply.
It has always been the practice that where a woman elects to retain her maiden name or revert to a former surname on dissolution of a marriage that such party must provide an affidavit in this regard and aver that she will not utilized any surname other than the one she assumed . In this instance no section 93 application is required . However , once the surname is assumed and the spouse elects to assume another surname , it is submitted that this is a change of name and requires to be recorded as such
I agree with Allen that such was the practice. I have no doubt that the practice was incorrect. Every responsibility that a conveyance/attorney/notary accepts by signing the prep clause need not be proven to the registrar. Section 15A(3) of DRA says the registrar shall accept those facts as proven. Read with section 93 of DRA and 26(1) of BDR there can be no doubt that, at least women, may assume and resume names/former names , and resuming a former surname after divorce must fall within the ambit of that provision(93(1)(c)(ii) of DRA) Furthermore, regulation 44A(d)(i)(aa) makes the names, status, etc. of the persons the responsibility of the person signing the prep clause. Hence my point - incorrect practice, complied with over years with nary a thought as to its correctness. Other practices in the deeds offices, specifically related to the provisions of section 15A(3) and regulation 44A of DRA, are equally wrong, but that's another story.