Court orders deeds office to step up
MAIN IMAGE: Robert Krautkramer, director Miltons Matsemela
The Cape Town deeds office has been in the news quite a bit lately due to closures and slow turn-around times. The said deeds office can easily be said to have been a beacon amongst all the deeds offices in the country – before lockdown.
Everything worked. Deeds came up for transfer within 7 – 10 working days and it was arguably one of the most effective government departments in the country. Since lockdown, however, disaster has struck.
Ever since being allowed to operate from May 2020, the deeds office closed twice due to Covid scares. The official notices that were sent out stated that a staff member had allegedly come into contact with someone else who was positive. No one that was positive had thus even set foot in the deeds office.
On the first occasion the deeds office closed down for two working days. On the second occasion, it closed down for an entire working week. During that time several attempts were made to determine when they planned to reopen. There was no communication.
Rumours abounded that only some 18 of their staff were at their posts; that some staff who were at home wanted “danger pay” before returning, and no indication of when things would return to normal or when the majority of staff would be returning to their posts.
Eventually, and after a number of threats were launched by the Cape Town Attorneys Association (CTAA), which represents a number of law firms in Cape Town, the CTAA was obliged to launch an urgent application to the Cape High Court to force answers out of the deeds office.
On 12 June 2020, the application was heard for the first time. The deeds office had agreed that it would reopen again on 15 June 2020 (which it did) and they all agreed on a time-table for the further exchange of affidavits and so forth. The matter was postponed to 19 June 2020. The Deeds Office however failed to file any opposing papers, so the matter proceeded on an unopposed basis on 19 June 2020, where the following orders were granted:
- That the deeds office remains open “with its full operations subject to social distancing”
- That the deeds office (and two other state departments that were co-cited as respondents) develop a plan to address the backlog of deeds (there are over 10 000 deeds in the deeds office that need processing), within 5 days of the order;
- That the deeds office publishes a Covid plan (given that no such plan has been prepared) within 10 days of the order;
- That the deeds office files affidavits within 21 days of the order, to advise the court, what it intends to do to give effect to the order and confirming publication of the above;
- That the deeds office immediately deploys sufficient staff to attend to the backlog;
- That the deeds office files a comprehensive report with the court by 30 September 2020 setting out the progress made and statistics to show what is being done about the situation on the ground.
Despite the deeds office opening again on 15 June 2020, the situation remains dire. Some deeds that our firm lodged on 15 June 2020 have not yet even reached level 1 of examination! It is impossible to determine a turnaround time at this point. We still do not know how many staff have exactly returned but given that a Covid plan must be published within 10 days of the order, time will soon tell what the deeds office plans to do.
The current situation is of course causing havoc with many, many transactions where sellers and buyers are unable to make any firm plans. Antenuptial agreements that were lodged shortly before lockdown run the risk of being rejected. By law, an Antenuptial Contract must be registered within three months of being executed in front of a notary. So, if those are not registered in time, and if the parties have married in the meantime, they will be married in community of property instead of out! The deeds office rules do not provide for a procedure to undo this. It means the parties will have to apply to the High Court at great expense, to register a Post-Nuptial Agreement.
So, in a nutshell, the Cape Town deeds office, has some serious challenges ahead of it. This of course has a direct impact on the entire property market in the Western Cape province. But at least, with a court order in hand, we should now see some progress within the very near future.
About the author: Robert Krautkramer has been a partner at Miltons Matsemela Inc since 2011, a boutique law firm that focusses almost exclusively on property law. He has 23 years’ experience all in all as an admitted attorney and regularly presents seminars to estate agents on contract law; the Estate Agent’s Code of Conduct and new relevant legislation, such as the PPA; the Expropriation Bill; and FICA.