SECURING LAND TENURE: AN OVERVIEW OF THE KEY PROVISIONS OF THE DEEDS REGISTRIES AMENDMENT BILL
The Deeds Registries Amendment Bill (‘the Bill’) is currently awaiting presidential assent. The Bill, which was first tabled before Parliament in late 2022, is expected to be signed into law shortly. Designed to advance the realisation of secure land tenure under section 25(6) of the Constitution, the Bill introduces numerous amendments to the Deeds Registries Act (‘the Act’), which governs the registration of deeds in South Africa. These amendments, which are largely technical in nature, are intended to modernise and improve the implementation of the Act by streamlining the administration and registration of deeds. This article briefly considers some of these key changes.
The appointment of Deeds Registry officials
Pursuant to the efficient administration and registration of deeds, clause 1 of the Bill expressly provides for the appointment of the Chief Registrar of Deeds, Deputy Registrar of Deeds, and Assistant Registrar of Deeds by the Minister of Agriculture, Land Reform and Rural Development (‘the Minister’) in accordance with the provisions of the Public Service Act. During parliamentary deliberations, the Minister indicated that this amendment shall enable government to better regulate the membership, composition, duties, voting powers, and remuneration of members of the Deeds Registry.
Expanding the definition of a legal practitioner
Clause 12 of the Bill provides for the insertion or amendment of various definitions. For one, it aligns the Act’s definition of ‘attorney’, ‘conveyancer’ and ‘notary’ with the definitions contained under section 1 of the Legal Practice Act. To that end, a ‘conveyancer’ is understood as ‘any practising attorney who is admitted and enrolled to practi[c]e as a conveyancer in terms of [the Legal Practice] Act’. Significantly, the Bill broadens these definitions to include attorneys, conveyancers, and notaries in the employ of the Department of Agriculture, Land Reform and Rural Development (‘DALRRD’) in respect of transactions related to state-owned land. Elaborating on these proposed amendments, the Minister highlighted the importance of enabling DALRRD’s legal practitioners to perform the duties of other attorneys, conveyancers, and notaries concerning state-owned land.
Moving towards an electronic deeds registration system
The Electronic Deeds Registration Systems Act (‘EDRSA’), which provides for the development, introduction, and maintenance of an electronic deeds registration system, was promulgated in 2019. Much of the statute’s provisions, however, are not yet in force. Intended to modernise a traditionally paper-based process, EDRSA facilitates the ‘electronic preparation, lodgement, registration, execution, and storing of deeds and documents.’ In the process of establishing a fully computerised registration system, the Bill invests the Chief Registrar of Deeds with the responsibility to maintain and streamline the current registration system
Pursuant to its core objective of enabling security of land tenure, clause 13 of the Bill amends EDRSA to incorporate the electronic recordal of existing and future land tenure rights in communal areas. Currently, communal landowners’ tenure rights are not formally recorded in Deeds Registries. Instead, communal land is administered informally by traditional bodies. To that end, the Bill conceives of a ‘land tenure right’ as right which is ‘created or confirmed by legislation’. Acknowledging the economic, political, and socio-cultural importance of formalised land ownership, parliamentarians note that these amendments are crucial to formalise the recordal and registration of land tenure under a single system.
The power to regulate
The Bill proposes to divest the Deeds Registries Regulations Board (‘the Board’) of the power to make Regulations under the Act. In its place, the Bill empowers the Minister to introduce Regulations upon the recommendation(s) of the Board. Clause 5 of the Bill, read with section 10 of the Act, indicates that the Board may make recommendations related to the determination of fees, the manner and form of preparing, lodging, executing and registering deeds, and the prerequisites for conducting searches at the various Deeds Offices. Although the Board may freely offer advice to the Minister, she is under no obligation to implement said advice.
In its submission on the Bill during the public enquiry stage, the Law Society of South Africa (‘the LSSA’) suggested that the Board – composed mostly of experienced conveyancers and Deeds Registry officials – is currently ‘best suited’ to regulate technical matters connected with the registration of deeds. Rejecting the proposed amendment, the LSSA emphasised that, given the ‘procedural nature’ of Regulations, the Board is in a better position than the Minister to amend such instruments ‘quickly and on short notice’ pursuant to the effective application of the Act.
Collection of personal data
In light of South Africa’s history of colonisation, land dispossession, and racially skewed land ownership, clause 6 of the Bill permits the Minister to regulate ‘the manner and form in which personal information relating to race, gender, citizenship and nationality of landowners in South Africa may be collected for statistical and land audit purposes’. Per the Bill, this information shall be captured in a register for ‘official use’ by any national or provincial department. During parliamentary debates, the Minister stressed that the collation of this statistical data will enable the state to measure the extent to which it is meeting its constitutional obligation to facilitate equitable land reform and rural development. Mindful of the existing statutory obligations placed on conveyancers, the LSSA does not object to this proposed amendment – provided only that conveyancers are not further burdened with the responsibility of collating and supplying this information beyond current requirements.
Introduction of penalty provisions
Presently, section 99 of the Act exempts registrars, Deeds Office employees, or government from liability for damages sustained by any person consequent to the act or omission of a registrar or officer, unless said conduct was performed mala fide or without ‘reasonable care and diligence’. Clause 10 of the Bill proposes to amend this section by criminalising the mala fide acts or omissions by a registrar, officer, and any party to such ‘collusion’. Per the Bill, these persons shall be liable to a fine, imprisonment, or both upon conviction.
Similarly, clause 11 of the Bill proposes the insertion of a new section – section 99A of the Act – to penalise the unlawful preparation, execution, or attestation of any deeds and or documents by unauthorised persons. While the LSSA acknowledges the necessity of penalising the unauthorised execution or signature of a preparation clause in a deed, it cautions against the ‘wide’ wording of the proposed provision. In its place, the LSSA suggests that the clause should penalise non-conveyancers who sign a preparation certificate for a deed or document, or execute or attest to a document.
Supported by an accurate and advanced cadastral system, South Africa’s deeds registration processes are highly reputed. To preserve this high standard, the Bill seeks to improve the technical aspects of deeds registration for the ultimate benefit of conveyancers and the broader public. At the heart of the Bill, however, is the need to give effect to the constitutional right to security of land tenure through the implementation of operational measures which support transformative land redress.
