Thoughts on Resolutions

19 February 2009

The conveyancing fraternity have by now had ample opportunity to become familiar with the annual Conference of Registrars' Resolutions (RCR's) passed in 2008, either as a result of a rejection or Mr. West's workshops or by actually reading through them all.

Resolution 14/2008, which confirms RCR 31/2006, seems to me to be ludicrous. These abbreviations have been used for decades, even centuries, in literally hundreds of thousands of deeds, yet lately their use in deeds seems to bother someone. Is this really so important that the use thereof must be decided upon at a Registrars Conference? Will the use of an abbreviation render a deed invalid? Has it ever rendered a deed invalid or voidable?

Question is: do we leave the abbreviations where they appear in conditions or must they be removed? Apparently it is in order to refer to diagram "no 1234/2008" but not deed of transfer no T1234/2008. Can we say "…deed of transfer T1234/2008" or must it be "…deed of transfer number T1234/2008", and can we say ".. the farm 206" or must it be "…the farm number 206"? Will the abbreviation be in order in the supporting documents or are they also to be avoided there? When will it then be in order to use an abbreviation and when not?

If a conveyancer now uses one of these offensive abbreviations in a deed, I assume that the deed may be rejected, given that two RCR's now prohibit the use thereof? Is this the way that the public's money will be wasted? Are we playing games or are we in the business of registering legally valid deeds? De minimis non curat lex....

RCR19/2008 at last brings some sanity to the application of section 4(1)(b), and RCR 47/2008 at last clears up the practice regarding the application of section 40 of the Administration of Estates Act 66/1965.

RCR48/2008 is, I am afraid, not in keeping with stare decisis, no matter which way one looks at it. We are in the business of applying and administering the law, and should follow the rules.

RCR40/2008 begs commentary. Let us first look at a related matter, namely the matter regarding registering an original General Power of Attorney (GPA) in more than one deeds registry. This was brought to the Conference in 2005 and in RCR 25/2005 it was decided that registering the original GPA in more than one registry cannot be allowed and that regulations 65(6) and (7) must be followed. However, regulation 65(6) allows the Registrar of one deeds registry the discretion to refuse to accept a copy of a registered GPA issued by another Registry.

One must keep in mind that the regulation dates from the original regulations, but it was clearly the intention of the legislator not to force a Registrar of Deeds to only accept a copy of a GPA issued by another Registrar in whose office the original GPA was registered. Given the fact that in the past, before microfilming, the original GPA was retained in that registry when registered, what circumstances could exist that rendered the original GPA available for registration in another office, I do not know. The regulation was probably not aimed at that circumstance.

It may be that, should a Registrar find some valid reason why he is of the opinion that the copy of the GPA issued by another Registrar cannot be registered, such as a formal requirement that was not complied with, etc., such Registrar can refuse to accept such a copy of a GPA issued by another Registrar for registration in his office. He has the discretion to so refuse. I cannot imagine any other reason why the regulation provided the discretion, although there may be other reasons of which I am not aware.

However, given that the microfilming of deeds has been with us for some 25 years, with numerous amendments having been made to the Act and the regulations, the regulation has certainly stood the test of time. It also fits in with the current practises in deeds registries, whether the office is still on the double deeds system or mechanized.

There seems to be no earthly reason why the original GPA cannot be accepted for registration in every office that has been mechanized, i.e. where deeds are microfilmed or scanned. It will be clear from the GPA at which office or offices that GPA was first registered or already registered, and the Registrar need only advise that office/s that the GPA was also registered in his office. The Registrar in the office where the GPA was first registered can then make a note on his records to reflect this so that should the GPA be revoked or agents substituted, he can in turn advise every other Registrar in whose office the GPA was registered of such occurrence.

What amazed me more than anything else then was the decision in RCR40/2008 that the original GPA will now, once it is registered, be destroyed. And the reason for this decision is to "…avoid further dealings with a power of attorney, which may possibly already be revoked". Several problems with this now leap to mind:

  1. There are literally hundreds of registered original GPA's filed in the deeds registries around the country which have either been revoked or have lapsed for some reason and the deeds registries are none the wiser. Why is this reason now advanced as being reason to destroy the original? Straight after registration?
  2. As set out above, there is no reason to not accept the original for registration in more than one office;
  3. A GPA is meant to be used for all sorts of purposes, not only the Deeds Office, and hence the name. It is the very nature of the document that it can be used in general for a multitude of purposes. To say that a person may be walking around with a GPA that has already been revoked may be true, but that is, with respect, not the concern of the Deeds Office. Registration of a GPA does not detract from its generality in any way. The use of the GPA for other purposes than for the deeds registry is obviously a fact of life. GPA's are granted by a principal so that he may go touring and leave matters at home in the capable hands of his agent;
  4. Apparently it has now been decided that the GPA will not be destroyed, but defaced. Does that change the matter? Defacing the GPA is as good as destroying it;
  5. Section 3(4) of the Deeds Registries Act states that: "A reproduction referred to in sub-section (3) shall, for the purposes of the deeds registry, be deemed to be the original record…..". RCR 25/2005 is patently wrong in this regard. Clearly that does not mean that the actual original of a document is no longer the original, purely by reason of its registration in a deeds registry. It certainly does not grant the registrar the authority to destroy the original of any document, least of all a GPA that, unlike most other deeds and documents registered in a deeds registry, is, by its very nature, meant to be used in a wide variety of applications. If the client can be handed back the original GPA, it should be done. Some banks as well as other institutions refuse to accept copies of GPA's in any event and destroying or defacing the original GPA will be leaving the agent effectively incapable of performing the job his principal has entrusted him with.

With respect, CRC40/2008 must urgently be rendered ineffective. It creates an intolerable situation.

Dudley Lee


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