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Transfer and registration

18 August 2016

This article has been prompted by the last sentence (“the sentence”) of paragraph 3.3.2 of Chief Registrar’s Circular No. 16 of 1998 (“the Circular”), which paragraph 3.3.2 provides that: “A Registrar must on submission of a certificate by the Minister that State land has been transferred to the Authority, make such entries and endorsements, free of charge, as he or she considers necessary in or on any appropriate register, title deed or other document in his or her office or laid before him or her, in order to register the transfer (section 32 (2)). The wording of this subsection is incorrect in view of the fact that transfer of land is effected by operation of law and not by registration.” (emphasis added). The Circular is a guideline on certain aspects of the South African Maritime Safety Authority Act No. 5 of 1998 (“the SAMSA Act”).

Section 32 (1) of the SAMSA Act provides that: “Where the Minister for the purposes of this section determines and describes any land owned by the State by notice in the Gazette, such land is transferred to the Authority on the date specified in the notice, not being earlier than the date of publication of the notice.” (emphasis added). It is, therefore, unquestionable that the date of transfer precedes the date of registration of the transfer. However, the last sentence implies that the words “in order to register the transfer” (i) mean that the transfer is effected by the registration thereof and, therefore, takes effect on the date of registration thereof, and (ii) are in conflict with the vesting in terms of section 32 (1) of the SAMSA Act.

In my opinion, the last sentence is based on a mistaken appreciation of the subtle difference between a transfer and a registration of a transfer and is, therefore, in itself, incorrect. A transfer and a registration are two different things. A transfer is a conveyance. This conveyance can take place, for example, by (i) registration, as contemplated in section 16 the Deeds Registries Act 47 of 1937 (“the DRA”), in which case a registration serves two purposes, namely a transfer and a registration thereof, or (ii) statutory vesting, as provided for in section 32 (1) of the SAMSA Act. Registration, as such, is a recording. In the case of section 32 (2) of the SAMSA Act, the registration does not effect a transfer but provides a record of a transfer that has taken place already.

Registration of a preceding transfer, as is the case, for example, with section 32 (2) of the SAMSA Act and Item 28 (1) of Schedule 6 to the Constitution of the Republic of South Africa, 1996, does not detract or subtract from the effectiveness of the vesting (or transfer) that has taken place already. It merely serves to convert a vested owner into a registered owner, as contemplated in the definitions of “owner“ and “registered” in section 102 of the DRA.

On the basis of the afore-going, I submit that the last sentence of paragraph 3.3.2 of CRC 16/1998 is erroneous and should be deleted.

Thabo Nqhome
Consultant
Diana Mabasa Inc.
Johannesburg

Reader Comments: 1
Ken Mustard 19/08/2016:

I think the wording of the Registrars circular is correct. I think the error is in section 32(2) of SAMSA, because if registration has already taken place then the words "register the transfer" in section 32(2) should surely read "record the transfer"?

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