During the current nationwide Lockdown Deeds Offices across South Africa have been closed at times. Even when allowed to be re-opened, the Deeds Offices were slow to become fully operational and are subject to further closings when active Covid-19 cases occur. The situation is extremely harmful for the property business and it has again brought into focus the potential benefits of a system of electronic registration of deeds.
What progress has been made with electronic registration of deeds in South Africa and what impact could it have in a Lockdown situation?
The process of the registration of deeds is described in section 13 of the Deeds Registries Act 47 of 1937 (“the Deeds Registries Act”). In terms of this section, deeds “shall be deemed to be registered upon the affixing of the Registrar’s signature thereto”. Currently the conveyancer, authorised thereto by the transferor of property by a Power of Attorney, must sign the deed in the presence of the Registrar. Registration then occurs when the Registrar affixes a signature on the deed. Clearly this is currently an “in-person” process and cannot take place electronically.
With the aim of modernising the deeds registration process and to improve the ability of the current registration system to deal with the increased volume of transfers as a result of the Government’s land reform measures, the Legislature introduced the Electronic Deeds Registration Systems Bill in 2017 (“the Bill”). The objective of the Bill is to develop an Electronic Deeds Registration System (“e-DRS”) that can accommodate large numbers of deeds and thereby expedite the process of registering deeds. It is also envisaged that the e-DRS will also result in better turn-around times for the registration process; that it will offer country-wide access to registration services; increase the availability of information; and enhance the accuracy of the registration procedure.
Following the Bill, the Electronic Deeds Registration Systems Act 19 of 2019 (“the Act”) was signed into law in October 2019. However, only section 2 of the Act is currently operational. This section authorises the Chief Registrar of Deeds, subject to the Electronic Communications and Transactions Act 25 of 2002, to establish an “electronic deeds registration system using information and communications technologies for the preparation, lodgment, registration, execution and storing of deeds and documents”.
The Act, and specifically section 6(3), when fully operational, will have the effect that upon electronic registration a deed will be deemed to have been registered in the presence of the Registrar by a property owner or by the conveyancer that has been authorised by a Power of Attorney to act on the owner’s behalf.
Although the Chief Registrar of Deeds will still have the power to issue directives allowing the manual preparation, lodgment, registration, execution and filing of deeds and documents, this Act will effectively replace the manual registration of deeds. It will go a long way to modernise South Africa’s property registration system.
The Act is not without flaws. The main concern is the risk of fraud associated with the electronic lodgment and registration of deeds. There is also the concern that the digitalised systems could malfunction.
Nevertheless, had the Electronic Deeds Registration Systems Act already become successfully operational prior to the Lockdown, it would have done away with much of the “in-person” process of registration and thereby could have prevented most of the backlogs currently experienced in Deeds Offices across South Africa.