Historical background of the deeds registry and the office of the conveyancer
Our deeds registration system is not unique. In Egypt, in approximately 3000 BC, a system for the conveyance of ownership, similar to our system, existed. From the Bible (see Jeremiah, Chapter 32, verses 9-14) it is also evident that during that time a system for the transfer of land existed, in many ways similar to our system as it exists today.
Our registration system has its roots in Holland. During the 16 century a Plakaat was issued in Holland whereby, inter alia, all transactions pertaining to land and the mortgaging of land, had to take place before a judge (Schepenen). Any sale of land contrary to the Plakaat was null and void. Furthermore, it was held that registers had to be kept of all transactions pertaining to land.
Back in South Africa: with the allocation of land in the 17 century at the Cape, a system similar to the one in Holland was applied. There were, however, no judges and two Commissioners were appointed by the Court of Justice – they were referred to as the ‘Commissioned Gentlemen’.
Prior to 1686 there was no actual registration of titles. This led to Simon van der Stel issuing a resolution and proclamation in that year whereby all registrations of land were made obligatory. All land owners were given two months to register their titles, failing which they forfeited their right to the land. This led to the official formation of a register of titles.
No provision in the Plakaat of 1686 was made for the registration of mortgage bonds; the bonds only had to
be executed before the Commissioned Gentlemen. In 1714 a further Plakaat was issued whereby all bonds had
to be submitted so that a proper register of all bonds could be compiled. Where bonds were not submitted
for registration, the bondholders lost the preference they were afforded against creditors.
When a person sold land, the process was as follows: All deeds of transfer were prepared in duplicate by or under the supervision of the State Secretary. The State Secretary or his deputy introduced the seller (appearer) to the court. The clerk of the court informed the court briefly of the main concepts of the deed. The deed was handed to the judges who briefly perused the contents and then signed the deed, which made the deed legal. The appearer then left the room and the following appearer took his place. This was done until all the deeds were dealt with.
Subsequently, transfers of land were not dealt with by judges, but by the State Secretary. In the office of the State Secretary there were two clerks; one was responsible for receiving the applications of persons wishing to transfer their land. This application was accompanied by the original deed of grant of the existing deed of transfer. No professional knowledge of the forms that had to be completed or any legal knowledge was required from the clerk. The clerk could, however, when in doubt, refer the matter to court for assistance or guidance.
In those days transfers of land was done on Fridays. A deed was accompanied by a receipt from the ‘Receiver of Tenths in Transfer Duty’ to show that the transfer duty was duly paid. In the Cape this duty had to be paid within four months from the date of the transaction; and in other districts within six months.
Sales very often took place on credit, for which bonds were passed. These bonds were also prepared in the office of the State Secretary. The forms were extremely elementary and seldom exceeded one page. The mortgage bonds were, however, not endorsed against the title deeds of the property concerned. Ordinance No. 39 of 1828 was issued which provided for the preparation, execution and registration of deeds of transfer and mortgage bonds. For this purpose a post of registrar of deeds was created. The office fee for the said three duties -preparation, execution and registration of a deed of transfer or mortgage bond – amounted to the equivalent of 97 ½ cents per deed.
As a result of the vast expenses which were incurred with the building of roads, an investigation was held in 1844 to curb expenses where possible. Three of the five clerks who were responsible for the preparation of deeds were dismissed and, in terms of Ordinance No. 14 of 1844, the work was afforded to advocates or other persons appointed in terms of the said Ordinance. This was the start of the office of the conveyancer as we know it today.
Although deeds could still be prepared in the deeds office, conveyancers soon monopolised the preparation of all deeds and this gave rise to the regular and methodical examination of deeds by the staff of the deeds office. The owners or mortgagors had to appear before the registrar of deeds to execute the deeds in his presence. The deeds were then examined and if found in order, the registrar of deeds signed them a few days later, but the deeds were backdated to the date of lodgement. No further appearance by owners was required, irrespective of whether the deeds were rejected and thereafter relodged.
The first Deeds Registry Act (Act 19 of 1891), which consisted of 23 sections, provided for the practice and procedure that had to be followed for the acceptance of deeds of transfer and mortgage bonds for the registration in the deeds registry at Cape Town. In terms of section 4, judges of the High Court were empowered to make rules and regulations ‘for the order and management of the Land and Debt registers’ . The regulations were prepared and came into operation on 1 January 1892 in the deeds registries of Cape Town, Kimberley and King William’s Town.
Notes by examiners on deeds were made for the first time in November 1891. It was made with indelible pencil on separate sheets of paper and attached to the back of the deed. Response by conveyancers was made in soft pencil below the queries raised by the examiners. In October 1892, notes were raised for the first time in the back of deeds, by which time the number of examiners in the Cape Town office was increased to seven. The examination of deeds became more and more imperative given the vast amount of legislation being passed as well as the pre-union legislation which was consolidated into the Consolidated Deeds Registry Act of 1918 and
which was later replaced by the Deeds Registries Act 47 of 1937. The number of examiners throughout the
Republic have increased to literally hundreds who are daily responsible for the meticulous examination of all deeds and documents lodged for execution or registration.
Approximately 20 per cent of all deeds and documents lodged are rejected for some or other serious error in the deeds of documents lodged for the execution or registration. It is through the meticulous and through work performed by the deeds registry and conveyancers alike that the trust of the public in the guarantee of the title deeds, bonds and other deeds remain intact.
