Umsebenzi Online
Umsebenzi Online, Volume 15, No. 10, 17 March 2015 In this Issue * Transform property relations now, open access to the Deeds Office! Prioritise repealing colonial and apartheid era laws rather than first and foremost the review of new laws passed after the 1994 democratic breakthrough! Red Alert Transform property relations now, open access to the Deeds Office! Prioritise repealing colonial and apartheid era laws rather than first and foremost the review of new laws passed after the 1994 democratic breakthrough! http://www.sacp.org.za/pubs/umsebenzi/images/umsebenzi_hand.gif Transform property relations now, open access to the Deeds Office; Prioritise repealing colonial and apartheid era laws, rather than first and foremost the review of new laws passed after the 1994 democratic breakthrough! BY UMSEBENZI ONLINE Going to the root, South Africa's colonial history began at the south-westerly point of the continent; the Cape Peninsula. Cape Town was originally established in 1652 by the Dutch East India Company as a convenient supply house for Dutch ships navigating spice trade route to India. The company held a monopoly over all trade at the Cape.[i] South Africa's deeds registration system has its roots in the region where the Dutch East India Company originated. During the 16th century a Plakaat was issued in Holland whereby, among others, all transactions pertaining to land and mortgaging of land had to take place before a Judge. Any sale of land contrary to the Plakaat was null and void. In this system, the Judge would travel to various districts where he would adjudicate on a transaction between a seller and buyer on a piece of land.[ii] Back in South Africa, with the allocation of land in the 17th Century at the Cape a system similar to the one in Holland was applied. However, when the Dutch East India Company took over, no Judge was willing to work in the Cape due to distance, among other issues. The Cape was rural at that time and marred by diseases such scurvy and generally not lucrative for judges to work there. Thus in the South African System, no Judges were appointed but two Commissioners were appointed by the "Court of Justice". The Commissioners were referred to as the "Commissioned Gentlemen". There were no prerequisite qualifications for the Commissioners in handling all transactions relating to property transfer.[iii] In summary, when a person sold land, deeds of transfer were prepared by or under the supervision of the State Secretary. The State Secretary or his/her deputy introduced the seller to the court. After the appearing person - the seller - was introduced to the Court, the Clerk of the Court furnished it briefly with the main concept of the deed. The deed which was prepared in duplicate was then handed to the Judges who in turn briefly perused the contents and thereafter signed the papers, giving the legal deed certainty. The seller then vacated the room, and the next one followed with the exact routine followed until all the deeds were dealt with.[iv] After time, all transfers of land did not take place before Judges, but were dealt with by the Secretary. In the office of the Secretary there were two clerks, of which one was responsible for receiving the applications of persons wishing to transfer their land. This application was accompanied by the original deed of grant or the existing deed of transfer. No professional knowledge of form which had to be completed or any legal knowledge was required from the clerk. The clerk was, however, allowed when in doubt, to refer the matter to the court for assistance or guidance.[v] The Office of the Conveyancer: origin and definition After some time with more developments taking place, in 1844, in terms of Ordinance No.14 of 1844, the work of transferring property was extended to advocates or other persons appointed in terms of the said ordinance.[vi] This was the start of the Office of the Conveyancer as we know it today. Although even after this, the deeds could still be prepared in the Deeds Office, conveyancers soon monopolised the preparation of all deeds. The Deeds Registries Act 47 of 1937 narrowly defines a conveyancer as any person duly admitted to practice as conveyance in any part of the Republic of South Africa. A more comprehensive definition is that a conveyancer is an admitted attorney who has passed a specialised conveyancing examination and has been admitted as a conveyancer of the High Court of South Africa. The conveyancer is one of the critical role players in land transfers and plays a pivotal role within the land registration system because of the number of obligations entrusted to him/her. The duties of the conveyancer have been set out in the Deeds Registries Act, including, certificate of registration of whatever nature, to lodge and execute the deeds at the deeds registry. The registration of the deeds must be done in the presence of the registrar on behalf of the transferor, if authorised by power of attorney. Up to 1979 all admitted attorneys had the right to transact at the Deeds Office within the predominantly white community and as such "non-white" attorneys had very limited access to the Deeds Office. The origins of the Office of the Registrar Reforms to the registration system were introduced gradually, which around 1813 led to the introduction of the cadastral survey as the basis of the present registration system. The office of the Registrar of Deeds was instituted in 1828 - this year falls in the period of colonial dispossessions which were further intensified after the formation of the "Union of South Africa" in 1910 through the "Native Land Act" of 1913. The Act deepened expropriation of the African people and confined them only to 10% of the total land mass of South Africa and later expanded it to 13%). The Registrar took over the responsibilities formerly attributed to the commissioners and secretary. Initially the Registrar was responsible for the preparation of deeds, but from 1844 onwards, as per the above-mentioned ordinance, advocates were authorised to prepare the necessary documents themselves.[vii] For over 100 years the Registrar remains to be an officer of the State and was not required to have any form of qualification such as a law diploma or degree, conveyancer, a magistrate or judge. It was only in the Registries Amendment 62 of 1984 that the registrar was required to have some form of qualification which is not equivalent to the stringent requirement of an attorney or conveyancer. In terms of section 2(2) of the Act, no person shall be appointed as Chief Registrar, Registrar, Deputy Registrar or assistant Registrar unless s/he has passed the final examination for law Diploma Luris, or for any other diploma or a degree, recognised by the Minister of Public Service and Administration. Post-1994: Deeds Office in the democratic constitutional dispensation With the brief history and background discussed, there are a number of issues and challenges to be raised regarding the current system of land registration as regulated by the Deeds Registries Act 47 of 1937 and the Attorneys Act 53 of 1979 in so far as it relates to the conveyancer. It is important to underline that these laws are apartheid era laws and that therefore the fundamental social relations upon which they were erected are in the first place those corresponding to the class and political relations of their time. There are therefore serious transformational questions that have not been addressed with their continued application. This, fundamentally, lies at the heart of some of the persisting or continually reproduced problems that impact negatively on transformation of property relations. The question is therefore not merely some textual issues relating to old laws that "fit in with" the post-1994 constitutional dispensation. The fundamental social relations upon which those laws were erected are incompatible with the vision of a non-racial, democratic and prosperous South Africa that the post-1994 democratic breakthrough was inaugurated to achieve. It would be more reasonable therefore for Parliament to overhaul the entire structure of continuing colonial and apartheid era laws, rather than, as it has now decided, to do prioritise first and foremost a review of post-1994 laws when there are colonial and apartheid era laws that remain the base structure inhibiting transformation. A few examples, in terms of section 15 of the Deeds Registries Act 47 of 1937[viii], only the Conveyancer may, amongst others, attend to attestation, execution and registration of deeds before the Registrar. And further in terms of the Attorneys Act 53 of 1979[ix], a conveyancer must be an admitted attorney and have passed the conveyancing examination. It is a well-known fact that the history of South Africa has been marred by the apartheid policy of separate development for the minority on the one hand and under-development of the majority on the other. Apartheid is known among other things most notoriously for its discriminatory land policy: the reallocation of land and forced removals or outright expropriation of "non-whites". The pertinent question is whether the land registration system, with the conveyancer as a key role player is effective in addressing the demands of the higher frequency of land actions due to land reform? The demands of land reform require the land registration process to adapt to radical changes in legislation for the restoration of land rights to the majority of the historically dispossessed. The current land registration which exclusively affords only the conveyancers to transact in the Deeds Office is ineffective for many reasons which we will expound on below. The creation of specialisation in conveyancing was incorporated in the Attorneys Act mainly to promote the discriminatory policies of the then apartheid regime, which include The Group Areas Act and the Slums Act of 1933 which further guaranteed that was registered under the name of a "non-white" without "proper" scrutiny on issues such as money laundering, security of the State and "discomfort" to the privileges enjoyed by the white neighbouring community. This was a restrictive measure in controlling and monitoring the homeland system. For instance, the process of specialisation in South Africa as a conveyancer takes a minimum of just over six years to complete. Although the process towards specialisation as a conveyancer is both structured and organised, it is very rigid, and strict as well as lengthy. It is therefore not an attractive route to consider for many people in the legal fraternity. This has resulted in only fewer conveyancers who cannot cope with the higher demands of land transfers. This route poses obstacles in increasing the frequency of land transactions. A further common symptom of cumbersomeness and complexity of the process of conveyancing is that a single property exchange can take up to 120 days or longer to be finalised. This process seems long, for instance, without delving into a comparative study (if we were to compare it to the system in Netherlands). With such a requirement of qualification as a conveyancer, the conveyancers appear before a Registrar of Deeds who possesses no qualification or has qualification lesser than the conveyancers themselves. The conveyancers appear before someone who is less qualified than them. This demonstrates that it is possible for someone, other than, the conveyancer, to transact in the Deeds Office. The critical question is why ordinary citizens are specifically denied access to the Deeds Registry Office? Why citizens cannot be afforded access to directly transact on their properties with the Deeds Office? The conveyancers are the gatekeepers to the Deeds Office. It is unconstitutional that they alone should exclusively transact in this office? A comparison of property transactions and other transactions with the different organs of state will indicate that the monopoly held by conveyancers is unjustified: The Companies and Intellectual Property Commission deals with registration of companies and other transactions. Whereas there are specialists in the industry such as attorneys, accountants, bookkeepers, an ordinary citizen is not precluded to directly transact with the Commission without being assisted by a qualified specialist. The critical question is, why is there an exception in landed property transfer and registration, to the extent that it is impossible to transact direct? The South African Revenue Services (SARS) handles all matters relating to tax. It is a fact that tax matters can be complex. There many qualified tax practitioners across the country. An ordinary citizen may elect to appoint a tax practitioner to handle his/her tax matters; however, s/he may also elect to do so himself/herself. SARS directly transacts with ordinary individuals without any legislative restriction. Why is there an exception in conveyancing matters? Above all, every arrested person in South Africa has a right to fair trial, and may choose to be represented by a legal practitioner, or to have a legal practitioner assigned to him/her by the state its expense. Criminal matters may get complicated as most of them are. However, an ordinary citizen still has a choice whether to represent himself/herself or to be represented by a legal practitioner. Even in civil matters, the same principle applies. Nothing precludes a person to handle his/her own matter or case. If an ordinary citizen has direct access to the courts, what in principle precludes him/her to access the office of the Registrar? The Constitution is clear that legislative measures must be put in place to realise the rights accorded to all people in terms of the Constitution itself. The State has a duty to promote all values enshrined in the Bill of Rights. It must develop and promote the utilisation of its offices for the benefit of all citizens. By not promoting access to the Deeds Office this constitutional responsibilities have been neglected. In terms of section 26 of the Constitution, everyone has the right of access to adequate housing. The State is required to take reasonable legislative and other measures within its available resources to achieve the progressive realisation of this right. The issue of housing is directly linked to ownership of property, and the right to deal with your property as you deem necessary. Currently, it costs between an amount of R4, 000 and R5, 000 to transfer a property valued at about R100, 000. The majority of our people do not have this amount of money. The cost becomes even more depending on the value of the property. Even if a person secures a loan from the bank, the obstacles become the conveyancing fees, of which most people do not have and the bank does not provide them. Access to property is thus limited and restricted, and as such most people do not have properties and fail to participate actively in the economy. Ownership of property has many advantages. Other people use the security of their properties to access loans, help in improving their lives, and paying for example higher education for their children to in case they are not eligible to assistance under the National Student Financial Aid Scheme. Many white South Africans are used to transferring properties given their better off economic position and most of them have title deeds compared to their black counterparts. This has made it easier for them to access funding in various financial institutions with ease and manage to fund their productive endeavours. The demands of land reform and the right to housing require a radical change in legislation for the promotion of land rights and ownership. What is to be done? The State must implement its constitutional obligations and allow ordinary citizens access to the Deeds Office. Freedom of choice must be promoted to allow people to choose whether to make use of a conveyancer or personally attend to their transfer/registration of property directly without a conveyancer. The State must remove the conveyancers as gatekeepers who have over time monopolised the property industry, which is undemocratic. The panel set up to review all legislation passed after 1994, led by former President and Deputy President Kgalema Motlanthe must review the Legal Practice Bill, which has incorporated section 18 of the Attorney Act 53 of 1979 which entrenches the specialisation of conveyancers who act as gatekeepers to the Deeds of Office. Most important, rather than the new focus on prioritising the review of post-1994 laws, priority must be placed on repealing colonial and apartheid era laws that continue to be in force and replacing them with new laws whose premise are property relations that are aimed at propelling South Africa to realise its vision of a non-racial, democratic and prosperous South Africa in which inequality is eliminated. Endnotes _____ [i] Allen West, Conveyancing and Notarial Practice( Law Society of South Africa, 2013) 01 [ii] Allen West, Conveyancing and Notarial Practice 01 [iii] Allen West, Conveyancing and Notarial Practice 01 [iv] Allen West, Conveyancing and Notarial Practice 01 [v] Allen West, Conveyancing and Notarial Practice 01 [vi] Badenhorst, Pienaar & Mostert. The Law of Propertyn 204. [vii] Badenhorst, Pienaar & Mostert. The Law of Propertyn 204. [viii] The Deed Registries Act 47 of 1937 [ix] The Attorneys Act 53 of 1979. . This piece was commissioned by Umsebenzi Online and finalised by it with research involving participation by progressive lawyers as part of SACP's Campaign to push for transformation in the financial sector. 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