LEGAL MATTERS SPONSORED BY STBB
If a deed or document gets rejected because the examiner raised a valid note the conveyancers will rectify the mistake and relodge it . On the other hand , if the examiner exercised the abovementioned right but interpreted the applicable legislation incorrectly which resulted in the rejection of the deed or document because of such incorrect note , the conveyancer can approach the examiner who raised the note to discuss its merits . If the conveyancer can persuade the examiner with convincing evidence that his note is incorrect the examiner will agree to allow corrective maintenance on the deed or document , with permission of his Assistant Registrar or the designated Deputy Registrar . This means the deed or document is restored back into the system at the desk of the responsible examiner without having to relodge it afresh . The note gets removed and within two days from date of corrective maintenance it can be ready for registration .
If the examiner is not persuaded by the conveyancer ’ s argument he can escalate the matter , with the knowledge of the examiner , to the examiner ’ s Assistant Registrar or the designated Deputy Registrar . If the conveyancer has a sound argument the Assistant Registrar or the designated Deputy Registrar will allow for the removal of the incorrect note and the reintroduction of the deed or document back into the system at the desk of the responsible examiner without having to relodge it afresh .
6 . A culture of accountability must be created Section 33 of the Constitution of the Republic of South Africa Act , 1996 states that everyone has the right to administrative action that is lawful , reasonable and procedurally fair . Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons for such action . The Promotion of Administrative Justice Act , 200 ( No 3 of 2000 ) was then enacted to promote an efficient administration and good governance as well as to create a culture of accountability , openness and transparency in the public administration or in the exercise of a public power or the performance of a public function .
Where the examiner raised an incorrect note and rejected a deed or document because of an incorrect interpretation of the law this must surely fall within the definition of “ administrative action ” in terms of the Promotion of Administrative Justice Act , 200 ( No 3 of 2000 ). This means that a party who is prejudiced by the invalid rejection of a deed or document as a consequence of the failure by such examiner to exercise reasonable care and diligence in carrying out his duties may be entitled to redress .
In terms of Section 99 of the Deeds Registries Act , 1937 ( No 47 of 1937 ) the State is accountable for the damages if an examiner executes his duties carelessly and neglectfully :
99 . Exemption from liability for acts or omissions in deeds registry . No act or omission of any registrar or of any officer employed in a deeds registry shall render the Government or such registrar or officer liable for damage sustained by any person in consequence of such act or omission : Provided that if such act or omission is mala fide or if such registrar or officer has not exercised reasonable care and diligence in carrying out his duties in connection with such act or omission , the Government shall be liable for the damage aforesaid : Provided further that the registrar or officer guilty of such act or omission shall be liable to make good any loss or damage resulting therefrom to the Government if such act or omission was mala fide .
7 . Conclusion The raising of incorrect notes by examiners as in the case of the FLISP house under discussion causes the rejection of deeds which are in fact permitted for registration by law . This postpones the registration of that matter unreasonably and subsequently also the flow of money linked to this transaction .
The majority of the examiners are willing to engage helpfully with conveyancers if they raised the wrong note and they accept accountability for such mistakes . If the incorrect note is removed by the examiner who acknowledges the mistake the delay in registration of that matter can be reduced and hopefully the same incorrect note will not be raised again .
The few examiners who refuse to budge when they raise the incorrect notes may have to be reminded about the financial implications of their actions on all the parties involved in that specific property transaction , which implications can be measured in monetary terms known as damages .
COSMOPOLITAN PROJECTS
STBB offers a variety of legal services where our expertise and friendly approach allows us to deal with every legal matter in an effective and efficient manner ensuring a pleasant experience for our clients .
In the property sector we cover :
• Property law : We offer benchmark services for both retail and development property transactions . We are reputed for our teams of seasoned property law practitioners who share an extensive set of skills to smoothly address every aspect of property law and land development transactions .
• Local Government , Planning , Development and
Environmental law : Our Development Law Unit has nine specialists addressing development requirements in the fields of planning law , environmental law , construction law , renewable energy law and local government law . The Unit partners with land developers to function as a vital watchdog and one-stop-shop for all legal requirements of land development projects , including low cost housing projects .
For more information related to the information published , please contact Gert Minnaar at gertm @ stbb . co . za or visit our website www . stbb . co . za to view contact information for your nearest branch .
www . saaffordablehousing . co . za NOVEMBER - DECEMBER 2020 21