Our conveyancing system (the process of transferring immovable property from one owner to another) is based on a very sound and old property system, one that has indeed stood the test of time.
The basic principles and requirements of the transfer of immovable property followed in our law are referenced in the Holy Bible in Jeremiah 32. Jeremiah purchased a piece of land from his cousin, Hanamel. A deed of purchase was drafted and signed by Jeremiah, Hanamel, and two witnesses. The land was purchased by Jeremiah, who paid seventeen shekels (the purchase price). The deed of purchase contained certain terms and conditions relevant to the transaction, similar to conditions in a title deed such as servitudes. After all the formalities were completed, the deed was sealed and locked in a clay jar to last for a long time, resembling the Deeds Registry where title deeds are lodged and filed today for record keeping.
The registration of land at the Cape originated in 1657 when grants of land were given to the first colonists along the Liesbeek River at Rondebosch. In 1686 it was found that many colonists possessed erven in property or on loan but could not produce sufficient evidence of their rights. On 1 July 1686, the Council of Policy resolved that deeds and leases were to be registered with the Secretary of the Council.
Transfers and mortgages of immovable property took place before two Commissioners of the Council of Policy and the Secretary to the Council, who were later replaced by Commissioners of the Court of Justice.
During the years 1806 to 1827, the registration of deeds was attached to the office of the Colonial Secretary. By Ordinance 39 of 1828, the method of certifying, enregistering, and subscribing deeds before two members of the Court of Justice in the presence of the Colonial Secretary was abolished. Henceforth, all transfers, bonds, and deeds were required to be registered before an official designated as the Registrar of Deeds.
Lieutenant-Colonel GJ Rogers was appointed the first Registrar of Deeds.
By 1839, the business of the Deeds Registry Office had increased to such an extent that the Governor, Sir George Napier, recommended to the Secretary of State on 29 March 1839 that a separate Deeds Registry Office be created and that JG Brink be placed in charge of the office. The measures for implementing the institution of a separate Deeds Registry Office were sanctioned by the Secretary of State on 29 October 1839.
In terms of Ordinance 14 of 1844, the practice of drawing or preparing deeds exclusively in the Deeds Registry Office was discontinued. Deeds could now be prepared either by qualified conveyancers or in the Deeds Registry Office.
Ultimately, the functions of the various registrars of deeds in the four provinces of South Africa were set out in section 3 of Act 47 of 1937 (the Deeds Registry Act). As a result, we have an extremely well-developed conveyancing system rooted in tradition, Roman-Dutch and British law. The Deeds Registries Act is essentially a codification of various acts.
Registration in the Deeds Office gives assurance to property owners who can rely on the Title Deed they receive as proof of their ownership. In our conveyancing system, the general rule is that the State gives an implied guarantee that the person who is registered as the owner of a right to land in the deeds registry is indeed the owner thereof. And like Jeremiah, property owners can take comfort from that fact.
Article written by Faure & Faure director, Zane Meyer, and Faure & Faure conveyancer, Erika Le Roux.
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