By Lizette Burger

The Law Society of South Africa’s (LSSA) Property Law Committee (the Committee) met on 7 June 2022 to consider an array of issues pertaining to its field of expertise. Some of the key issues considered were:

• Development regarding the Electronic Deeds Registration System

The Electronic Deeds Registration Systems Act 19 of 2019 provides for the development, establishment and maintenance of an electronic deeds registration system (eDRS) to replace the current paper-based registration system. Only s 2 of the Act is currently operational. In terms of the Act, the Chief Registrar of Deeds (CRD) is charged with establishing, developing and maintaining the system. Extensive discussions have taken place between representatives of the Committee and the Banking Association of South Africa (BASA), service providers in the electronic conveyancing field, LAWTrust and others, with a view of determining a practical approach to the development of an eDRS, and to provide meaningful and concise input into the process being followed by the CRD. Ongoing collaboration is taking place to ensure the development of advanced electronic signatures, and the management of proper data systems to facilitate the secure and practical employment of such signatures. Electronic presentations were prepared for discussion with all role players and the CRD.

The Committee was further represented at three sittings of NEDLAC’s Task Team on the Deeds Registries Amendment Bill, and took the opportunity to express the profession’s views on various aspects of the proposed amendments. This included, amongst others, a proposal for the extension of the Deeds Registries Regulations Board, the formal recording of land tenure rights in the Deeds Office, and the imposition of criminal sanctions in the event that a preparation clause is signed by someone who is not an admitted conveyancer.

Further developments in all of the above are closely monitored.

• Property Practitioners Act and Regulations

The Property Practitioners Act 22 of 2019 and Regulations, which replace the Estate Agency Affairs Act 112 of 1976, came into operation on 1 February 2022.

Practitioners are urged to apprise themselves of the provisions of the Act. Some of the provisions are of concern to the Committee and the Committee is considering making submissions for an amendment of the Act. Practitioners are welcome to submit their comments on the Act to the LSSA, for possible inclusion in the submission.

Section 56(5) is of particular concern and places conveyancers in a difficult position. Sections 47 and 48 of the Act compels property practitioners to hold a valid Fidelity Fund Certificate (FFC), failing whereof they may not be entitled to their remuneration. Section 56(5) prohibits conveyancers from paying remuneration to property practitioners who have not provided them with a certified copy of their FFCs, valid on the date of the transaction and the date of payment.

The Committee noted that property practitioners have six months from date of implementation of the Act in which to register with the Property Practitioners Regulatory Authority (PPRA) for a valid FFC. The Committee also noted that there appears to be a delay at the PPRA with the issuing of FFCs and resolved to request a meeting with the PPRA to consider a way forward, which may include a joint approach to the authorities for a moratorium.

• Service level agreements of banks

The service level agreements between banks and conveyancers have been of concern for quite a while, particularly the requirement that legal practitioners must invest substantial amounts with particular banks to remain on the banks’ panel and the manner in which they set up their conveyancing panels. The LSSA brought these issues to the attention of the Competition Commission some time ago. The Competition Commission then embarked on a process of engagement with key stakeholders, including the banks and the LSSA.

The Committee noted that the Competition Commission has issued a document entitled ‘Practice note on the promotion of competition and inclusion in supplier panels in banks and insurers’. Although some of the concerns have been addressed in this document, there are still outstanding issues, notably the banks’ briefing patterns. The Committee resolved to seek an audience with BASA to discuss this.

• Conveyancing fees guidelines

The new conveyancing fees guidelines, effective from 16 May 2022, are available on the LSSA’s website at www.lssa.org.za.

• South African Revenue Service

The Committee, together with the LSSA’s Tax and Exchange Control Committee and Deceased Estates, Trusts, Planning and Insolvency Committee, met with the South African Revenue Service (Sars) in February 2020 to discuss several issues.

These included problems associated with transfer duty assessments/exemptions, such as the Sars turnaround time, the inordinate delay to contact call centres; and the inability of call centre agents to render any meaningful assistance to transfer duty queries.

The Committee noted that their experiences are much the same, with the same frustrations, such as waiting for supporting documents to be investigated and receipts to be released for matters queried. It was also noted the strike had a negative impact on Sars’s service delivery.

A further meeting will be set up with Sars.

The LSSA regularly receives communiques from Sars, which we bring to the attention of practitioners via our social media platforms and newsletters. Practitioners are urged to follow us on:

–          Facebook: Law Society of South Africa
–          Twitter: LawSociety_SA
–          LinkedIn: Law Society of South Africa
–          Instagram: thelawsocietyofsouthafrica

• Sectional Titles Regulation Board meeting

The Sectional Titles Regulation Board meeting will be held on 8 September 2022.

• Deeds Registries Regulation Board Meeting

The next Deeds Registries Regulation Board meeting will be held on 25 August 2022, and two representatives of the LSSA will attend on behalf of the Committee.

• Chief Registrar’s Conference 2022

The 2022 Chief Registrar’s Conference will be held in October 2022 on a date still to be determined, probably in Mpumalanga. The closing date for items for discussion is fast approaching (normally before the end of July each year), and such items should be raised by the various conveyancing committees at the seats of the various Deeds Offices through their local Registrars and/or practice committees.  Items should be in the format of a question, with a proposed resolution, as well as a short motivation for the resolution.

Lizette Burger is the Professional Affairs Senior Manager at the Law Society of South Africa.
This article was first published in De Rebus in 2022 (August) DR 6.