On the 4th of March 2016, the Department of Rural Development and Land Reform published The Deeds Registries Amendment Bill 2016 ('the Bill"). The Notice invites members of the public to submit written comments on the Bill within 30 calendar days of the publication of the Notice.
The main objectives of the Bill:
- To facilitate the enactment of electronic deeds registration provisions in order to effect the registration of large volumes of deeds as necessitated by the government's land reform initiatives; and to
- To expedite the registration of deeds by decreasing the time required for the deeds registration process.
The current land registration system
The current Deeds Registration Act provides for the registration of deeds to take place manually. A computerised Deeds Registration System is in place for the purpose of maintaining the electronic land register. Apart from this electronic process, the preparation and lodgement by the Conveyancers as well as the processing of deeds and documents by the Registrar of Deeds, all take place manually. The Bill proposes to challenge the current position by, amongst other things, making regulations in respect of electronic lodgement of deeds and documents, and the introduction of electronic execution of deeds by Conveyancers.
Sections of the Deeds Registries Act, which will be amended by the Deeds Registries Amendment Bill
The Bill makes provision for the following amendments to the Deeds Registries Act:
Chapter 1 – Administration
- Provisions pertaining to the establishment and maintaining of an electronic deeds registration system (section 1A)
- Provision for a seal of office to be electronically affixed to deeds and documents (section 2)
- The deletion of reference to the 'attestation' of deeds, the electronic keeping of registers, the maintaining of an efficient electronic deeds registration system and the electronic registered deeds registry copy of a deed to be deemed the original deed (section 3; amendment also applies to sections 13, 15, 16A, 26 – 27,53, & 91 - 92)
- Provision for the electronic lodgement of proof in paper and electronic form and the electronic issuing of deeds for information and judicial purposes only (section 4)
- The making of regulations in respect of electronic lodgement of deeds and documents, the enforcement of payment of fees, and requirements relating to electronic or digital signatures (section 10)
Chapter 2 – Registration
- Provision for conveyancers to register as authorised users of the electronic deeds registration system, the electronic preparation of deeds and documents and the safe-keeping and filing thereof by conveyancers (section 15)
- Provision for the deeds registry copy of a title deed, bond or other deed to be endorsed and for the client's copy of such title deed, bond or other deed not to be lodged for endorsement (section 17; amendment also applies to sections 27 - 28, 31 - 33, 37, 40, 43 - 46A, 47, 64 - 65, 68, 75 - 76, 78, 82 and 87)
Chapter 3 – Registration of Land
- Provision for deeds to contain reference to diagrams and general plans that have been approved under the Land Survey Act, 1997 and to provide for such diagrams and plans not to be lodged. Amendment will also allow for a member of Cabinet of an Executive council responsible for the administration of state land to apply for the issuing of a certificate of registered state title (sections 18, 22, 40, 43A, 44: amendment also applies to sections, 46, 46A and 47)
- Provision for the electronic execution of a deed of transfer by a Conveyancer upon authorization of the owner of the land (section 20)
Chapter 5 – Bonds
- Provision for mortgage bonds to be prepared in the prescribed form and to be electronically executed by the Conveyancer upon authorization of the owner (section 50)
- Provision for the registration of a notarial bond to be effective as registration for the whole republic (section 61)
Chapter 8 – Miscellaneous
- Provision for the full names and identity numbers of witnesses to be disclosed in powers of attorney (section 61)
- Provision for the insertion of the definition of 'authorized user', 'deed or document', electronic deeds registration system', 'register' and 'signature'. Also provision for the amendment of the definition of 'diagram' and 'general plan' in respect of the approval and filing thereof by the surveyor-general (section 102)
The necessity for the implementation of the Electronic Deeds Registration System
With the advent of the Internet, e-commerce and global computerisation, there has been an increased need for electronic service delivery and a number of new challenges are now facing the Deeds Registries. In order to keep up with these modern business practices, the Office of the Registrar of Deeds has embarked on a project for the implementation of e-Commerce principles in order to facilitate the electronic deeds registration system ("e-DRS"). The e-DRS will provide for, amongst other things, the registration of large volumes of deeds effectively, improve turn-around times for providing registered deeds and documents to clients, provide country wide 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.
The major changes introduced by the implementation of the Bill
The Deeds Registries Amendment Bill, 2016 ("the Bill") has been drafted to introduce, among other things:
- The electronic deeds registration system;
- The electronic keeping of registers;
- The electronic lodgement of proof in paper and electronic form;
- The electronic issuing of deeds for information and judicial purposes only;
- The making of regulations in respect of electronic lodgement of deeds and documents and requirements relating to electronic or digital signatures;
- Conveyancers to register as authorised users of the electronic deeds registration system
- The electronic preparation of deeds and documents and the safe-keeping and filing thereof by conveyancers
As it can be seen above, the Bill presents a number of changes that will affect the land registration system in our country, from the lodgements of deeds to their registration/execution. At the same time, the Bill raises concerns as to role of Conveyancers particularly those practising as correspondents. If the Bill is enacted, it will it mean that every Conveyancer can now lodge and register/execute a matter electronically regardless of his/her proximity to the Deeds Office. Will the Conveyancers now have to restructure and train their staff on the functioning of the e-DRS? Will the transition to the new system not cause major rejections of deeds and frustration to all Conveyancers in dealing with it?
While the development of the legal system is appreciated, a careful balance between these developments and the effectiveness of the current system must be made.