LPL4804 CONVENYANCING EXAM QUESTIONS AND ANSWERS
UNIT 1
1. Briefly discuss: the South African deeds registration system is
characterised by a high degree of state interferences (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, in terms of section 3 of the Deeds
Registries Act, the registrar is obliged to ensure that all deeds
conform to the standards for registration, and he/she must reject
deeds which do not conform. The registration system is linked to
the State Cadastral system and requires municipal rate
clearances to be acquired from local authorities including transfer
duty receipts or any exemptions from SARS(South African
Revenue Service)
2. 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)
• Although South Africa has a negative registration system, since the
state accepts liability, it can be declared a positive characteristic.
• However, simultaneously, it is declared a negative characteristic
and state liability is limited and defined and there is no general
acceptance regarding state liability
In terms of Section 99 of the Deeds Registries Act, the government,
registrar and official employed at the deed’s office will not be
liable for damages sustained by any person due to any act or
omission on their part unless:
I. The act or omission was mala fide.
1) The registrar/official did not exercise reasonable care and
diligence in carrying out their duties.
Although we have a negative registration system, and the State
accepts liability, it is therefore deemed a positive characteristic.
State liability is limited and defined and no general acceptance
regarding state liability exists/is present and it is therefore deemed
a negative characteristic.
3. Why is the South African deeds registration system generally
described as negative? (4)
The State does not guarantee correctness of data or
, accuracy of the register. (Parties rely on correctness of
information)
The new deed will reflect the transfer; therefore, a new
deed is required for each transaction.
The State will not incur any liability for incomplete records,
if a title has defects, a party may claim delictual or
contractual remedies against the conveyancer.
The State will be liable in terms of Section 99 of the Deeds
Registries Act, if the following can be proved:
a) The loss was a result of an Act/omission committed
by a registrar/official employed in a registry.
b) Was committed in bad faith and failure to exercise
reasonable care and diligence.
4. Explain why and how deeds which are lodged for execution
in a South African deed’s registry are linked. (5)
Deeds can be linked as a batch irrespective of the fact that different
conveyancers prepared them and lodged them, they are registered
simultaneously for financial reasons.
This is done by completing their lodgement covers in a specific way.
The deeds are then lodged on the same day in separate lodgement
covers.
The deeds are then examined/checked together, by the deed’s
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
5. List five characteristics of the South African deeds
registration system that are indicative of a positive system.
(5)
The State completes and maintains a register of title and guarantees
accuracy and correctness of register.
The State is liable for shortcomings in records.
The State examines/investigates documents and transactions for
legality.
The transfer takes place when the register of title is annotated, and
deeds are merely endorsed. New deeds are not required for each
transaction.
The register of title is linked to a cadastral system of maps and
diagrams.
, There is a high degree of state interference.
Linking of transactions occur.
6. Why is the South African deeds registration system regarded
as a negative deeds registration system? (3)
The State does not guarantee correctness of data or
accuracy of the register. (Parties rely on correctness of
information)
The new deed will reflect the transfer; therefore, a new
deed is required for each transaction.
The State will not incur any liability for incomplete records,
if a title has defects, a party may claim delictual or
contractual remedies against the conveyancer.
The State will be liable in terms of Section 99 of the Deeds
Registries Act, if the following can be proved:
a) The loss was a result of an Act/omission committed
by a registrar/official employed in a registry.
b) Was committed in bad faith and failure to exercise
reasonable care and diligence.
7. Discuss which system applies in South Africa, substantiate your
choice with references to cases
Land registration is based on statute in South Africa (Alienation of Land Act
and Deeds Registries Act) and is unique because it is nominally negative but
has some characteristics of a positive system as well.
The data contained in the South African deed registries are not guaranteed for
it correctness according to the State, the state does not record deeds at face
value either. Owners/real right holders with a security title, title holders and
bona fide third parties would however rely on the correctness of information
contained in the title and deed registry records. Another point to be made, is
the unnecessary step which South African titleholders have to comply with to
ensure that their rights in are protected in the event a third party would other
prove to have a better titled of property as the case may be with other negative
registration systems.
In Barclays National Bank v Registrateur van Aktes – land which was subject
to a mortgage bond was transferred to a bona fide purchaser without the bond
first being cancelled. It was held by the court that the mortgagee’s secured real
right was not terminated by the transfer, and that the transferee therefore
acquired the land subject to the bond. Until the mistake is discovered and
rectified, the same principle will apply to all subsequent transfers. This means
that the mortgagee’s rights remain intact to the detriment of subsequent
transferees although a number of subsequent transfers may have been
registered.
, d. In Standard Bank v Breitenbach -a bond which had mistakenly not been
endorsed on the Title Deed was still duly registered once the Registrar of
Deeds signed the bond and that any bona fide purchaser who later purchases
the land, will acquire the land subject to the bond.
e. Legator McKenna Inc v Shea (SCA) – following a motor vehicle accident in
which Ms Shea suffered severe brain injuries making it impossible for her to
manage her own legal and financial affairs, attorney McKenna of Legator
McKenna Inc was appointed by the court as curator in March 2002. Then
before receiving a letter of appointment from the Master, in April 2002,
McKenna sold Ms Shea’s immovable property to Mr and Mrs Erskine, in order
to pay Ms Shea’s pressing debts. With his signature McKenna inserted the
words “curator” and “Subject to the approval of the Master”. The Master’s
appointment in favour of McKenna was issued in June 2002 and the Master’s
consent to the sale followed on 17 July 2002. The transfer in favour of the
Erskine’s was registered on 27 July 2002 and in March 2003. Ms Shea
recovered to such an extent that the court declared her once more capable of
managing her own affairs.
Approximately a year later Shea applied to court for, among others, an order
for the return of the immovable property against repayment of the purchase
price. The Erskines in turn instituted a conditional damage claim against
McKenna for R1.7m should the immovable property be returned to Shea,
based on McKenna’s breach of his implied warranty that he was authorized to
sell the property. In the court a quo Shea succeeded. The sale was declared
void, so was the subsequent registration of transfer in the deed’s office. On
appeal this decision was reversed and the abstract theory of the passing of
ownership applied.It has thus now been definitively decided that the abstract
theory of passing of ownership applies in SA.
This means that even though the original causa of a transaction registered in
the deed’s office may be defective, if there is a real agreement to transfer
ownership and both parties have performed under that real agreement, then
the subsequent transfer is valid. In terms of the abstract theory, there are 2
requirements for passing ownership:
1) Delivery: In the case of immovable property, this is affected by registration
of transfer in the Deeds office.
2) Real agreement: The intention of the transferor must be to transfer
ownership and the intention of the transferee must be to become the owner of
the property.
Mc Kenna’s mistake about the validity of the sale had no effect on the
effectiveness of the real agreement. In addition to other delictual or contractual
remedies one may have against the conveyancer, a prejudiced party may in
some cases recover damages from the State under Section 99 of the Deeds
Registries Act 47 of 1937. However, the claimant must prove: - the loss
resulted from an act or omission of a registrar or official employed in a registry
- the act or omission was committed in bad faith or due to failure to exercise
reasonable care and diligence.
UNIT 1
1. Briefly discuss: the South African deeds registration system is
characterised by a high degree of state interferences (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, in terms of section 3 of the Deeds
Registries Act, the registrar is obliged to ensure that all deeds
conform to the standards for registration, and he/she must reject
deeds which do not conform. The registration system is linked to
the State Cadastral system and requires municipal rate
clearances to be acquired from local authorities including transfer
duty receipts or any exemptions from SARS(South African
Revenue Service)
2. 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)
• Although South Africa has a negative registration system, since the
state accepts liability, it can be declared a positive characteristic.
• However, simultaneously, it is declared a negative characteristic
and state liability is limited and defined and there is no general
acceptance regarding state liability
In terms of Section 99 of the Deeds Registries Act, the government,
registrar and official employed at the deed’s office will not be
liable for damages sustained by any person due to any act or
omission on their part unless:
I. The act or omission was mala fide.
1) The registrar/official did not exercise reasonable care and
diligence in carrying out their duties.
Although we have a negative registration system, and the State
accepts liability, it is therefore deemed a positive characteristic.
State liability is limited and defined and no general acceptance
regarding state liability exists/is present and it is therefore deemed
a negative characteristic.
3. Why is the South African deeds registration system generally
described as negative? (4)
The State does not guarantee correctness of data or
, accuracy of the register. (Parties rely on correctness of
information)
The new deed will reflect the transfer; therefore, a new
deed is required for each transaction.
The State will not incur any liability for incomplete records,
if a title has defects, a party may claim delictual or
contractual remedies against the conveyancer.
The State will be liable in terms of Section 99 of the Deeds
Registries Act, if the following can be proved:
a) The loss was a result of an Act/omission committed
by a registrar/official employed in a registry.
b) Was committed in bad faith and failure to exercise
reasonable care and diligence.
4. Explain why and how deeds which are lodged for execution
in a South African deed’s registry are linked. (5)
Deeds can be linked as a batch irrespective of the fact that different
conveyancers prepared them and lodged them, they are registered
simultaneously for financial reasons.
This is done by completing their lodgement covers in a specific way.
The deeds are then lodged on the same day in separate lodgement
covers.
The deeds are then examined/checked together, by the deed’s
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
5. List five characteristics of the South African deeds
registration system that are indicative of a positive system.
(5)
The State completes and maintains a register of title and guarantees
accuracy and correctness of register.
The State is liable for shortcomings in records.
The State examines/investigates documents and transactions for
legality.
The transfer takes place when the register of title is annotated, and
deeds are merely endorsed. New deeds are not required for each
transaction.
The register of title is linked to a cadastral system of maps and
diagrams.
, There is a high degree of state interference.
Linking of transactions occur.
6. Why is the South African deeds registration system regarded
as a negative deeds registration system? (3)
The State does not guarantee correctness of data or
accuracy of the register. (Parties rely on correctness of
information)
The new deed will reflect the transfer; therefore, a new
deed is required for each transaction.
The State will not incur any liability for incomplete records,
if a title has defects, a party may claim delictual or
contractual remedies against the conveyancer.
The State will be liable in terms of Section 99 of the Deeds
Registries Act, if the following can be proved:
a) The loss was a result of an Act/omission committed
by a registrar/official employed in a registry.
b) Was committed in bad faith and failure to exercise
reasonable care and diligence.
7. Discuss which system applies in South Africa, substantiate your
choice with references to cases
Land registration is based on statute in South Africa (Alienation of Land Act
and Deeds Registries Act) and is unique because it is nominally negative but
has some characteristics of a positive system as well.
The data contained in the South African deed registries are not guaranteed for
it correctness according to the State, the state does not record deeds at face
value either. Owners/real right holders with a security title, title holders and
bona fide third parties would however rely on the correctness of information
contained in the title and deed registry records. Another point to be made, is
the unnecessary step which South African titleholders have to comply with to
ensure that their rights in are protected in the event a third party would other
prove to have a better titled of property as the case may be with other negative
registration systems.
In Barclays National Bank v Registrateur van Aktes – land which was subject
to a mortgage bond was transferred to a bona fide purchaser without the bond
first being cancelled. It was held by the court that the mortgagee’s secured real
right was not terminated by the transfer, and that the transferee therefore
acquired the land subject to the bond. Until the mistake is discovered and
rectified, the same principle will apply to all subsequent transfers. This means
that the mortgagee’s rights remain intact to the detriment of subsequent
transferees although a number of subsequent transfers may have been
registered.
, d. In Standard Bank v Breitenbach -a bond which had mistakenly not been
endorsed on the Title Deed was still duly registered once the Registrar of
Deeds signed the bond and that any bona fide purchaser who later purchases
the land, will acquire the land subject to the bond.
e. Legator McKenna Inc v Shea (SCA) – following a motor vehicle accident in
which Ms Shea suffered severe brain injuries making it impossible for her to
manage her own legal and financial affairs, attorney McKenna of Legator
McKenna Inc was appointed by the court as curator in March 2002. Then
before receiving a letter of appointment from the Master, in April 2002,
McKenna sold Ms Shea’s immovable property to Mr and Mrs Erskine, in order
to pay Ms Shea’s pressing debts. With his signature McKenna inserted the
words “curator” and “Subject to the approval of the Master”. The Master’s
appointment in favour of McKenna was issued in June 2002 and the Master’s
consent to the sale followed on 17 July 2002. The transfer in favour of the
Erskine’s was registered on 27 July 2002 and in March 2003. Ms Shea
recovered to such an extent that the court declared her once more capable of
managing her own affairs.
Approximately a year later Shea applied to court for, among others, an order
for the return of the immovable property against repayment of the purchase
price. The Erskines in turn instituted a conditional damage claim against
McKenna for R1.7m should the immovable property be returned to Shea,
based on McKenna’s breach of his implied warranty that he was authorized to
sell the property. In the court a quo Shea succeeded. The sale was declared
void, so was the subsequent registration of transfer in the deed’s office. On
appeal this decision was reversed and the abstract theory of the passing of
ownership applied.It has thus now been definitively decided that the abstract
theory of passing of ownership applies in SA.
This means that even though the original causa of a transaction registered in
the deed’s office may be defective, if there is a real agreement to transfer
ownership and both parties have performed under that real agreement, then
the subsequent transfer is valid. In terms of the abstract theory, there are 2
requirements for passing ownership:
1) Delivery: In the case of immovable property, this is affected by registration
of transfer in the Deeds office.
2) Real agreement: The intention of the transferor must be to transfer
ownership and the intention of the transferee must be to become the owner of
the property.
Mc Kenna’s mistake about the validity of the sale had no effect on the
effectiveness of the real agreement. In addition to other delictual or contractual
remedies one may have against the conveyancer, a prejudiced party may in
some cases recover damages from the State under Section 99 of the Deeds
Registries Act 47 of 1937. However, the claimant must prove: - the loss
resulted from an act or omission of a registrar or official employed in a registry
- the act or omission was committed in bad faith or due to failure to exercise
reasonable care and diligence.
