The 2021 Amendment to section 99 of the Deeds Registries Act: what does this mean for the Conveyancing Fraternity?

FROM THE DESK OF ANNETJIE:

Section 99 of the Deeds Registries Act 47 of 1937 (‘the Act’) pertains to exemption from liability for acts or omissions in the Deeds Registry. Specifically, this section states that the government, the registrar and officials employed at the Deeds Office will be exempt from liability for damages due to any act or omission on their part unless the act or omission was made in bad faith or with the intent to deceive (mala fides). In 2012, an Amendment was effected to this section upon recommendation of the Deeds Registries Regulation Board. In terms of this Amendment, the government, the registrar and deeds office officials could also be held liable for their acts or omissions if they failed to exercise reasonable care and diligence when carrying out their duties. Arguably, such amendment was effected due to the fact that it was near impossible to prove that an examiner had acted male fide and for that reason, section 99 of the Act was seldom applicable. Accordingly, the proposed amendment had the effect of care and diligence also constituting factors to be considered when determining whether an examiner could be held liable for costs.

However, most notably for the conveyancing fraternity, a further substitution to the section was introduced by way of Regulations in July 2021. Significantly, the 2021 substitution extended the applicability of section 99 to not only the government, registrar and deeds office officials but also the wider conveyancing fraternity. Specifically, this section now states that if an act or omission is found to be male fide, the registrar, deeds office official, and every other person that was part of a collusion, will be guilty of an offence and liable on conviction to a fine or to imprisonment or to both such fine and imprisonment.

The effect of the aforesaid is that each person involved in a conveyancing transaction are now vulnerable to liability in terms of acts or omissions made in bad faith. This includes, but is not limited to, the requisite law firm, conveyancer, conveyancing secretary etc.

For more information, please contact [email protected].