Subject to ties - VI

9 September 2010

With reference to Mr. Nqhome's latest Subject to ties V reply the following:

Re paragraphs 2 and 3 of his letter, I can only say: exactly!! All those words -sold, alienated, mortgaged, pass, cede cancel a deed, transfer, hypothecate all point to "dispose of" or "burden", suggesting that "deal with" should have a similar meaning. My point exactly. Regulation 65(1) does not concern itself, in my opinion, with any such meaning or intention, but merely the fact that in principal the registered owner of land or a right in land is the person who must act when such land or real right is affected by a registration, and any other person who alleges to be acting on behalf of the owner must lodge his power of attorney to do so with the registrar. A certificate of title is certainly "…perform(ing) any other act in a Deeds Registry on behalf of any other person…", but is merely required to prove agency. It most certainly does not change a certificate of title's nature in any fashion. The application for the CRT is normally brought by the owner. Now an agent brings it.

As regards the "general rule as used by me and by Jones in Conveyancing in South Africa, note that the meaning of the word there indicates that as a general rule, the Registrar will only extract information from his records for the issue of the certificate of title. See page 182 where he states "… additional matter or change of circumstance not reflected in the existing titles can be embodied in the certificate, except where authorized under the Act or regulations or in terms of any other statute, or because of difficulties in practice which have led to the modification of the rule". Thus we now use persons' identity numbers and add marital status in a certificate of title even if the existing title/s only reflect names and date/s of birth of the owner. Thus and exception to "general". Yes, a certificate of title is an act of registration in a Deeds Registry, but so is the registration of a general power of attorney or an ante nuptial contract, which is certainly not "dealing" with anything simply by reason of the act of registration.

Of course a consolidation or certificate of registered titles are still born if not registered. But so is a deed of transfer, if not registered. The fact that the owner must apply for the issue of a certificate of title also does not, in my mind, make the issue thereof an act of dealing with the property, but is a mere request for a substituting title. It is as much dealing with the property as a section 31 "transfer" is dealing with the land.

With respect, I submit that what judge Mahomed was discussing in S v Mhlungu and Others was far removed from what is discussed here and does not relate to dealing with land in any manner.

Dudley Lee
7th September 2010

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