LPL 4804 Conveyancing Q&A VERIFIED ANS.

Conveyancing Q&A 2014 – 2009 Unit 1 Briefly discuss: The South African deeds registration system is characterised by a high degree of state interference. (4) • Despite the South African registration system being nominally a negative system, there is a great deal of state interference. • In the South African system the registrar is obliged in terms of section 3 of the Deeds Registries Act, to check the deeds for registrability and reject deeds if they do not conform. • The registration system is linked to the state cadastral system. • The registration system requires municipal rates clearances from local authorities and transfer duty receipts or exemptions from the South African Revenue Service. Briefly discuss: The limited state liability for incorrect data in the South African deeds registration system in terms of section 99 of the Deeds Registries Act, illustrates both positive and negative characteristics. (4) • Section 99 provides that the state and or the registrar/official will be liable for incorrect data where they were either o Mala fide or o Failed to exercise reasonable care and diligence. • This is a positive characteristic in the sense that the state does accept some liability although South Africa has a negative registration system. • However, simultaneously, the fact that the state liability is so limited and defined, and not a general acceptance of state liability, is a negative characteristic. Why is the South African deeds registration system generally described as negative? (4) • The state provides no automatic guarantee that information is correct. • The state does not have a special fund to compensate for incorrect information. • A new deed is required for every transfer. • In terms of section 99 of the Deeds Registries Act, the state is, however, liable for incorrect information as a result of an act or omission by an employee that is mala fide or does not reflect reasonable care and diligence. • The South African deeds registry system has characteristics of both positive and negative systems, but is regarded as nominally negative. The act or omission was mala fide @yash0505 Explain why and how deeds which are lodged for execution in a South African deeds registry are linked. (5) • Deeds that must be registered simultaneously for financial reasons, although prepared and lodged by different conveyancers, can be linked as a batch. • This is done by completing their lodgement covers in a specific way. • These are then lodged on the same day in separate lodgement covers. • The deeds are then examined/checked together, by the deeds personnel, as a batch, and are registered simultaneously as a batch. • The linked deeds are all deemed to be registered only when the last transaction in the batch has been signed by the registrar. List five characteristics of the South African deeds registration system that are indicative of a positive system. (5) • The state examines/investigates documentation and transactions for legality. • The state completes and maintains a register to title. • Register of title is linked to a cadastral system of maps and diagrams. • The state is liable under specific circumstances for shortcomings. • The state register is subject to a great deal of state supervision and intervention/interference. • The public relies on the accuracy of the deeds registry data, although no guarantee is given by the state. • Linking of transactions occurs. Why is the South African deeds registration system regarded as a negative deeds registration system? (3) • The state gives no guarantees as to the accuracy of the state register. • The state as a general rule does not incur liability for inaccurate or incomplete records, except in very specific and limited circumstances. • Transfer is generally effected in a new deed of transfer for each transaction. Unit 2 Briefly discuss: The preparation certificate of a deed of transfer must always be signed by a conveyancer before lodgement of the deeds in the deeds registry. (4) @yash0505 • The general rule is that draft deeds of transfer must have a preparation certificate signed by a conveyancer before lodgement. • The conveyancer who signs the preparation certificate takes responsibility for the correctness of the deed. • However, exceptions to this rule are government officials and land bank officials, who may also sign the preparation certificate of a deed of transfer. • Likewise, attorneys practising in the former Transkei before 1997 may sign the preparation certificate of a deed of transfer, as they are under the definition of a conveyancer in the Deeds Registries Act. • Unlike powers of attorney and other documents, deeds of transfer may not be prepared by an attorney or notary. Discuss the following preparation certificates which appear on the top of a CONSENT TO CANCELLATION of a mortgage bond. (3) & (3) a) Prepared by me Ramwell D Notary Public b) Countersigned by me Shanbangu S Conveyancer a) Consents may be prepared either by a conveyancer, an attorney, or a notary, who takes responsibility for the correctness of the consent. This is therefore a valid preparation. If a consent to cancel is prepared by an attorney or a notary, as in the above case, it must be countersigned by a conveyancer to confirm that the preparing notary is in fact a practising notary. b) As per the explanation above, this is a valid countersignature by a conveyancer. Where a preparation clause is signed by an attorney or notary, it must be countersigned by a conveyancer, confirming that the attorney or notary is in fact practising as such. List five general format requirements that all deeds lodged at the deeds office for registration must comply with, and then, using those criteria, evaluate whether this examination paper complies with each of those five format requirements. (10) • A4 good quality paper – complies