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Nederzettingswet - a response

15 May 2014

I hereby explore and discuss the problem set out in the last paragraph of Kroongrond Nederzettingswet, (“the article”), by Mrs Annette Fyfer, (“Annette”), which article was published in GhostDigest on 8 May 2014.

The gist of Annette’s problem is that, in response to her recent enquiry, the Deeds Registry at Pretoria (“the DR”) requires lodgement of a consent letter (“the consent”) from a Government Department for the removal, from her client’s title deed, of a condition of title, (“the condition”), in favour of the State President, imposed in terms of the Kroongrond Nederzettingswet, 1912, (“the Act”), which Act has been repealed. Annette cannot understand the need for the consent in the light of the clear repeal thereof, as a result of which repeal “the condition can no longer be relevant or applicable.”

It is noteworthy that, previously, Annette had, in another transaction (“the previous transaction”), secured removal, by the DR, of the condition on the basis of a “Conveyancer’s Certificate setting out the facts and the legislation whereby the Act was repealed.”

Viewed in the light of the previous transaction, Annette’s contention is that a Conveyancer’s Certificate, as opposed to the consent, should secure removal of the condition. However, the article is silent on the authoritative source of reference for the removal of the condition, if not any condition, of title on the basis of a Conveyancer’s Certificate!

Be that as it may, attention is drawn to Regulation 35 (1) of the Deeds Registries Act, 1937 (Act 47 of 1937), as amended, (“the DRA”), about the procedure to be “observed in the preparation of deeds conferring title to land in regard to the conditions to which such land is or may be subject”. Regulation 35 (1) (h) of the DRA provides that: “Should the provisions of this regulation not be applicable, the decision of the Registrar in regard to the procedure to be followed shall be observed.” In the absence of an explanation therefor, it would appear, therefore, that, in the previous transaction, the DR purported to act in terms of Regulation 35 (1) (h) of the DRA. However, the validity of the latter action is questionable in the light of the next paragraph hereof.

Attention must be drawn to section 2A of the State Land Disposal Act, 1961 (Act 48 of 1961), as amended, (“the SLDA”) which provides as follows:-

2A. Powers of President in relation to certain rights of State in respect of private land.– (1) The President may-

(a) on such terms and conditions as he may deem fit, consent to the amendment or cancellation of any condition which was, before or after the commencement of this Act, embodied in or registered against a deed of grant or deed of transfer in terms of any law or otherwise and whereby any right was reserved to or acquired by the State in respect of Land;

(b) at any time exercise any such right.

(2) If the President has in terms of subsection (1) (a) consented to the amendment or cancellation of a condition referred to in that subsection, he may authorize the registrar of deeds concerned in writing to endorse the amendment or cancellation, as the case may be, on the title deed of the land concerned, and the said registrar shall give effect to the said authorization in such manner as may to him appear to be most practicable and convenient.”

I, therefore, conclude that the consent required by the Deeds Registry at Pretoria, for a removal of the condition imposed in terms of the Kroongrond Nederzettingswet, 1912, is that provided for in section 2A of the State Land Disposal Act, 1961.

Thabo Nqhome
12 May 2014

Reader Comments: 1
Marius 15/05/2014:

A title deed condition does not lapse merely because the enabling legislation used to create the condition had been repealed. In fact it might be that the enabling legislation is still deemed to be in force. See section 12(2) of the Interpretation Act, 1957 which reads as follows:

“12 (2) Where a law repeals any other law, then unless the contrary intention appears, the repeal shall not-

  1. revive anything not in force or existing at the time at which the repeal takes effect; or
  2. affect the previous operation of any law so repealed or anything duly done or suffered under the law so repealed; or
  3. affect any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed; or
  4. affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed; or
  5. affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, forfeiture or punishment as is in this subsection mentioned, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing law had not been passed”.

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