Moving towards digital deed of transfer registrations?
A precedent has been set in the Bloemfontein deeds office where the first deed of transfer in South Africa has been registered by way of digital signatures on the required documentation for a transfer to be effected. The process is still in its infancy stage, but it may well be the first step towards a complete transition whereby all deeds in future will be registered by this method. Legal expert John Gilchrist looks at the background to this system for an indication of the direction it will probably take in the future.
The Electronic Communications and Transactions Act
This law, promulgated in 2002, initiated the facility whereby documents could be authenticated by digital signatures. The act does not prescribe the technological method by which digital signatures must be appended, but it does provide a few examples which will qualify as acceptable and valid digital signatures. These are the typed name at the end of an e-mail, a scanned image of a handwritten signature embedded into a Word document, and an actual digital form of an original signature.
Where any law specifically requires an original signature, digital signatures will not be acceptable. Where, however, any law requires a specific signature that need not be an original, an advanced electronic signature will be accepted as valid. This is a particular form of a digital signature that can be appended to any legal document. The Act does allow for the keeping of records in electronic form and this will include the recording of a digital version of an original signature verifying a document as an original equivalent and not as a copy of the original.
Will digital signatures expedite the conveyancing process?
With a global trend towards digital authentication, it is highly probable that the deeds office system may eventually want to adopt digital signatures as the only form of signature acceptable, but there may be some obstacles in the way, especially where a digital version of a client’s signature cannot be obtained or where practitioners cannot afford to employ the technology required for this purpose.
Only a few documents need to be signed for most conveyancing documents, such as powers of attorney for transfers and bonds. Property transfers rarely require any further documents to be signed by the parties to a sale which have to be lodged in the local deeds office. Nonetheless a signature that can be appended to verifying documents without the client having to call on the conveyancer could facilitate and expedite the transfer.
Many of these, however, are affidavits and these must be signed before the conveyancer. The law also expressly provides that no deed of sale may be signed digitally. It remains to be seen how far the system could affect the transfer process and possibly improve it. It will help, however, if all but the documents that will have to be originally signed and lodged in a deeds office can be preserved digitally, as this will not only help to facilitate the process but will also drastically reduce the paperwork that congests most property transfer files these days.
For the time being it remains to be seen how far all of the nine deeds registries in South Africa will go to allow a digital registration system and to what extent it will speed up the registration process.
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