By Nomfundo Manyathi-Jele

The Law Society of South Africa (LSSA) has submitted comments on the Sectional Titles Amendment Bill, 2017.

In its submissions, the LSSA recommended that some words should be changed in some of the sections. The LSSA stated that it vigorously opposes the provision in s 5 (s 15B(1)(e) of the Sectional Titles Act (the Act)).  The provision in this proposed subsection states that a certificate by a conveyancer must be submitted to prove that the title deed for the rights of extension is not available.

The LSSA is of the view that the application contemplated in this subsection must be brought either by the developer or the body corporate, and proposed that the section be changed to require an affidavit by either the developer or the body corporate, ‘as the case may be – to the effect that the title deed is not available. If the developer or the body corporate is going to be signing the application anyway, it is advisable to get the signatory to depose to an affidavit at the same time. The conveyancer is in no better position to certify this than these two parties are able to depose to under affidavit.’

Regarding s 6(c) (s 17(4C) of the Act), the LSSA said: ‘The last part of this subsection requires “the written consent of the holder thereof” to the cancellation of the real right or a part thereof. As such a cancellation has to be done by bilateral notarial deed it is not clear why the “written consent” of the holder is required. The subsection should simply require cancellation by bilateral notarial deed. (We note that the same wording already appears under s 17(4)(b)(a), which likewise does not appear to make sense).’

The LSSA fully supported the deletion in s 9(c) (s 22(d) of the Act). It is of the view that the current wording of s 22(2)(d) of the Act is contrary to all the principles of substituted titles. ‘The subsection, as it stands, was the subject of much debate at the Registrars’ Conference of 2015, where it was pointed out … that the wording of the subsection had been inserted in error.

As the subsection currently stands, a partition transfer can be effected by the registration of a Certificate of Registered Sectional Titles. This is clearly untenable,’ the LSSA stated.

According to the LSSA, regarding the requirement that a conveyancer must certify that, at the date of the application, no unit in the scheme has been sold, donated or exchanged is entirely untenable in s 9(e) (s 22(2A)(a) of the Act) – new subsection. The LSSA said that it should not be expected of a conveyancer to certify this. ‘There may be several conveyancers not all acting for the developer, and a conveyancer has no control over what agreements the developer has signed an hour or so earlier,’ it said.

The LSSA strongly recommended that any such application contemplated in this subsection must be supported by an affidavit by the developer to the effect that no unit in the scheme has been sold, donated or exchanged. This recommendation also went for s 10(c) (s 23(2A)(a) of the Act) – new subsection and s 11(c) (s 24(3)(eA)(a) of the Act) – new subsection, where the LSSA stated: ‘The requirement of a conveyancer’s certificate in these circumstances is vigorously opposed by the LSSA in favour of an affidavit by the developer.’

Copyright Amendment Bill

The LSSA supported the comments made by the South African Institute of Intellectual Property Law (SAIIPL), as well as the comments made by Copyright Alliance on the Copyright Amendment Bill B13 of 2017.

In its submission, SAIIPL stated that the Bill, ‘in its present form, is not suitable to be signed into law and that it will have far-reaching consequences, which will lead to the undermining of the principles and objectives of copyright law, legal uncertainty and, most importantly, the undermining of the rights of the authors, creators, songwriters, artists and other individuals whose rights the Amendment Bill is ostensibly aimed at improving and protecting’.

SAIIPL recommended that certain clauses be removed and others be re-drafted in order to avoid ‘very undesirable consequences’.

Copyright Alliance was of the view that ‘there are provisions in the Bill which, if not brought to the Committee’s attention and rectified, will effectively nullify the intentions of the Department of Trade and Industry and will perpetuate the scourge of South African creators, being among the most vulnerable and under-compensated in our society.’

The full submissions can be accessed on the LSSA website at www.LSSA.org.za under the ‘Our initiatives – Advocacy – Comments on legislation’ tabs.

Nomfundo Manyathi-Jele, Communications Officer, Law Society of South Africa, nomfundom@lssa.org.za

This article was first published in De Rebus in 2017 (Sept) DR 19.