South African Deeds Journal

The Deeds Registry as a Necessary
Economic Infrastructure
By: Professor Andreas van Wyk
University of Stellenbosch
Astrike of Deeds Registry officials during 2006 hardly received
attention in the highest quarters of Government. The reaction
might well have been that it is a strike by just another relatively
obscure group of aggrieved civil servants, within the
Department of LandAffairs.
In reality, the offices of the registrars of deeds, which are
mostly situated in areas where there are also Divisions of the
High Court, form a vital piece of economic infrastructure.
Without it our modern free market system would hardly
function or function with great difficulty, as has been shown in
countries aligned to the former Soviet Union. Likewise, in
many Third World Countries, the lack of a proper land register
stifles economic development.
As an everlasting asset, land forms the most obvious security
one has to offer for the repayment of a loan. However, this
presupposes that the particular piece of land may be clearly
identifiable. Only then will individual or institutionalized money
lenders be prepared to provide credit on the strength of a real
right against the debtor's land this which we nowadays call a
mortgage bond.
This is the basis upon which the whole modern banking
system is built. If all land in a country belongs to the State, then
banks are largely restricted to providing loans to the different
organs of State or merely providing short term loans, even if
individual property rights on land are acknowledged without a
credible system which proves X or Y's legal right. So for
example, in Indonesia, or in other parts of the developing world
no bank will provide significant credit to say a Javanese
subsistence farmer.
It is exactly in this area where South Africa inherited one of its
most significant strategic advantages from the Roman Dutch
law. Fundamental to a credible cadastre (property register) is
the survey performed by many generations of surveyors,
which enables almost each piece of land to be identified. This
provides not only the creation of a register of who owns a piece
of land or has rights thereto, but may also provide this
information for public knowledge.
This all may sound obvious, but it is not really so?
In some of the most highly developed Western countries, such
as Britain there is not really an equivalent to South Africa's
reliable deeds registers (property registers).
During the late Roman times the transfer of land took place by
physically handing over a document in which the transferor
(i.e. the seller of a house) confirmed that he transfers the land
to the transferee (the buyer). This event was not accompanied
by public notification. This in essence is still the situation in
England today with their “conveyance by deed” and
complicated matters to outsiders who wish to know who the
owner of a specific piece of land is.
However, in other parts of North Western Europe things
developed differently during the Middle ages. The transfer of
land had to take place in public, usually in the presence of
family or neighbours. This developed into a practice where this
function was performed in the presence of the local judicial
official who had to keep a copy of the transfer deed in his office.
This finally gave rise to legislation enacted between 1529 and
1580 by the then Austrian-Spanish rulers who also ruled the
Lower Lands of Holland. Accordingly, all transfers of land and
rights thereto (such as a mortgage or servitude) had to be
registered in the local court.
This is precisely what happened in the Cape. Simultaneously
with the establishment of a separate Council of Justice (“Raad
van Justisie”) in 1680, all land transfers were registered there
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until the early 19 century when the British administration in
the Cape established a separate registration office for land
titles. The Roman-Dutch principles upon which this office then
functioned remained, and indeed still does so to this day.
South African Deeds Registries are therefore government
offices where information relating to land and certain other
related judicial information (such as antenuptial contracts) are
readily provided for public access. Information kept there
enable potential land purchasers or credit providers to decide
whether they wish to proceed with such transactions or not.
Land registers may function in one or the other way. In certain
Western European countries a so-called positive registration
system is employed, which means that information recorded
may be fully relied upon. By implication this means that the
relevant State will guarantee the accuracy of the information
contained in its land registers.
In South Africa, and elsewhere, the system however is
negative. This means that the information contained in deeds
registers create a strong presumption, but total reliability
cannot be guaranteed.
Nevertheless, great care is taken to ensure the accuracy of our
registers. In its present form, the Deeds Registries Act, 47 of
1937 places a great deal of responsibility on conveyancers
(the specialized attorneys who deal with land transfers and the
rights thereto) to take responsibility for this.
On the other hand, our system also relies to a great extent on
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