Articles

A NEW ERA FOR CONVEYANCING

This article aims to elaborate on a recent article done by our Mr Peter Bowes.

On 19 September 2019, the Electronic Deeds Registration Systems Act was published in the Government Gazette. “The Electronic Deeds Registration Systems Act provides for the development of an Electronic Deeds Registration System – also known as e-DRS – through which South Africa will take advantage of the benefits offered by internet access, e-commerce and global computerisation in the management of security of property title,” a press release from the office of the President read.

The new system will enable the electronic processing, preparation and lodgement of deeds and documents by conveyancers and the Registrar of Deeds. It will also enable the registration of large volumes of deeds effectively; improved turn-around times for providing registered deeds and documents to clients; countrywide access to deeds registration services; enhanced accuracy of examination and registration; availability of information to the public, and security features including confidentiality, non-repudiation, integrity and availability.  This will furthermore greatly enhance security of title and the acquisition and disposal of fixed assets. The system also aims to improve transparency and allow for greater accuracy of examination and registration.

The proposed system will allow for the preparation of deeds and documents, deed searches, the examination process, the registration process, the delivery and archiving process and lastly, provide the conveyancer with access to all authority used by the examiners and deeds office staff.  In addition to these functions, the system will interface with the Surveyor-General’s databases to ensure that the registration process is only permitted on existing land parcels, and that the Surveyor-General’s database is also up to date.  

The process all starts with the conveyancer. The conveyancer will have to register with the Department of Land Affairs to access the system, at which stage his / her credentials and electronic signature will be validated and verified.  When the conveyancer logs into the system he / she will verify his / her credentials by means of an advanced electronic signature.  The Electronic Communications and Transactions Act provides that an advanced electronic signature is “data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature.”

The conveyancer at a law firm receives an instruction from the client (estate agent, financial institution, etc).  The conveyancer then has to determine which type of transaction it is (transfer / bond etc).  The next step is to link with all the different role players (e.g. seller, buyer, holder of rights, financial institution, SARS etc.).  All the required documents need to be obtained (e.g. consents, rates clearances etc.). At this stage the conveyancer is sure that the transaction will be proceeding, and it would be an appropriate time to conduct a deeds search. The conveyancer enters the e-DRS “Deeds Preparation Facility” by means of an encrypted password. If you are registered, you then have to prepare the Deeds by choosing a type of e-form and insert the registration information in the draft deed (e.g. the property description, owner’s name, ID act.). The new information has to be added (e.g. cause, date of the transaction, vesting clause etc.). The system will have the function of checking for encumbrances (bonds etc), comparing the information contained in the draft deed with the e-DRS database and compare the property description and extent with the SG Diagram. If the system finds any variations, the system will notify the conveyancer to rectify the draft deed. If there are any encumbrances, the conveyancer has to obtain the required approval, consent, releases, withdrawal, etc. The system must have links to the Master, Registrar of the High Court, Registrar of Companies, SARS, Local Authority etc.  All supporting documents must be scanned, authenticated by the conveyancer’s advance electronic signature and attached to the matter.  Municipal clearances, HOA consents, Body Corporate consents and transfer duty receipts will not be attached but conveyancers furnish a certificate, similar to a section 15b(3) certificate in terms of the Sectional Titles Act. All original paper copies should be filed in the conveyancer’s protocol.

If there are simultaneous transactions, lodgement has to be arranged and an e-lodgement cover will be prepared. If there are no simultaneous transactions the drafted deed is then ready for lodgement. The owner signs his/her signature on an electronic signing pad, sealing the document and preventing alteration.  All deeds of transfer and mortgage bonds will be executed by the owner in the presence of the conveyancer. The Draft Deed is then lodged by the conveyancer attaching an advanced electronic signature to the execution clause. 

The examiners receive the draft deeds, validate the conveyancer, check payment of fees, link simultaneous transactions, check double lodgement and attach identification codes to deeds. If there is a system query the query is attached to the deed and sent back to the conveyancer.  If no system query preliminary validation, if the draft deed takes place (If the Title is not on the e-DRS the Deeds Office must scan the paper of microfilm copy).  They will check for double registration, interdicts, sequestrations, attachments, bonds, restrictive conditions etc.  They also compare the info in the draft deed with registration particulars in the e-Title and e-DRS database (e.g. property description, diagram deed number, title deed number, owner’s name, ID, marital status, title conditions). Furthermore they compare property description and extent with SG database and attach generic types of endorsements to the draft deed.  A note or warning to the examiner of any discrepancy or change is attached to the draft deed.

The next step is distributions or allocation of deeds to examiners or examination teams. They then examine the draft deed and attend to the system notes or warnings and validate, check for new or changed and restrictive conditions. They flag the new restrictive conditions, draft and attach non generic endorsements. They also check legal capacity of parties, matrimonial status, contractual assistance, the cause and vesting clause is checked, the supporting documents are checked, they view and validate information, servitudes on SG diagrams and then lastly make the necessary notes to the conveyancer. If there are examiner’s notes the monitor rejects the deed where a query is attached to the deed and sent back to the conveyancer. If there’s no system query, the monitor passes the deeds to the preliminary execution and notifies the conveyancer that the deed is fit for execution. The system will calculate the fees payable and notify the conveyancer. The system then places a hold on the matter, until the Deeds Offices fees are paid, and the conveyancer has authorised registration.  When the latter is done the deed goes to Final Black Booking. If there is an interdict on the property, they attach the query to the deed and send back to the conveyancer. If there are no interdicts, then the registrar initiate execution. The Registrar attaches their e-signature, number, date, time to deeds and endorsements and emboss the new deed. They update the e-DRS and SG database and inform the Local Authority. Finally, they initiate microfilming and notify the conveyancer by transmitting an e-Certificate of Registration to the conveyancer.

Given the fact that the electronic concept has been coming from as far back as 1996, and although this is a positive step in the right direction, it may still take a very long time for this system to become a reality in practice. For the time being, the status quo will remain.

Author : Leandre Meyer

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