1. RESPONSE TO SUBMISSIONS MADE ON THE ELECTRONIC DEEDS REGISTRATION SYSTEM BILL [B35B - 2017]
PRESENTATION TO THE SELECT COMMITTEE ON LAND AND MINERAL RESOURCES (NATIONAL COUNCIL OF PROVINCES) – 12 MARCH 2019

2. COMMENT
RESPONSE
The Banking Association of South Africa (BASA) - (CLAUSE 3)
Validity of deeds and documents:
Credit providers and/or property owners presently retain the original deed that is registered in the deeds registry. The deed held by the deeds registry is a copy of all such deeds. Credit providers require an original deed for security purposes as the legal process necessitates that original security documents need to accompany legal pleadings in the realisation process. Similarly, for properties which are free of such a lien, consumers require the original deed/document, as this constitutes their proof of ownership and is also required in litigation matters.
If the only process available would be to apply for copies for judicial purposes, BASA highlights that this will incur additional legal costs for the accounts of already financially distressed borrowers.
Financial institutions will always have access to original registered records through the bi-directional interfacing of the systems.
An application for a copy of a deed for judicial purposes will not be the only process available. A certificate of confirmation of registration\ownership will be issued after the transaction has been registered and financial institutions/property owners may use such certificate for litigation purposes. The legal status of the certificate will be confirmed in the Regulations to the EDRS Bill.

3. COMMENT
RESPONSE
For the deeds registry to retain original deeds/documents, raises concerns in respect of potential cybercrime.
If the deeds registry holds the original deed/document, one can expect lenders and consumers alike to summons deeds registry officials to participate in pleadings in the realisation process and/or other litigation matters.
The Electronic Deeds Registration System (‘EDRS’) must comply with all the requirements as stipulated in CLAUSE 2 of the Bill, read with the provisions of the Electronic Communications and Transactions Act, 2002 (Act 25 of 2002). Further engagement with relevant stakeholders will take place during the development of the EDRS (e.g. SARS, BASA; etc.)
See response above regarding the legal status of the certificate of confirmation of registration\ ownership.

4. COMMENT
RESPONSE
Previous Recommendation:
Given the proposed amendment, BASA recommended that Section 3 be changed to reflect that:
“the client’s copy is deemed to be the original deeds/document and the deeds/document held by the deed’s registry is deemed to be the certified copy of the original deed/document”.
If this is not possible due to some legality, the clients copy of all deeds/documents should contain text to the effect that for:
“for mortgagee security purposes and/or litigation matters, the copy held outside of the deed’s registry is deemed to be a certified copy of the original deed/document”.
See above comment

5. COMMENT
RESPONSE
The Department explained that a summary of the title deed would be given to the property owners/mortgagees when a property is registered. Having sought legal opinion on this matter, BASA is of the opinion that the explanation does not address its concerns for two reasons:
• A summary of a title deed does not detail the restrictions on the property.
• Mortgagees hold a real right over a mortgaged property and thus any changes to the title deed will require the mortgagee’s permission to proposed changes. The process of issuing a summary may increase the risk of a change being made to the title deed without the approval of the mortgagee, as there is no mechanism that alerts the mortgagee if changes are made in the register without their knowledge.
The Summary of the transaction including details of rights/restrictions will be contained in a certificate to be issued.
Rights of all interested persons will remain protected as currently provided for in terms of the Deeds Registries Act as well as the Sectional Titles Act and other relevant legislation.

6. COMMENT
RESPONSE
DV DU PLESSIS VIVIERS INCORPORATED: (Mr Schoon)
Clause 3 indicates that the deed or document so registered and incorporated into the EDRS by electronic means is for all purposes deemed to be the only and valid record. Will the client and the banks receive some or other ‘copy’ of the deed or document for their purpose and will they be satisfied with that?
With reference to Clause 5(1)(f), how will possible fraud be avoided as the conveyancer does not physically appear before the Registrar of Deeds?
A certificate of confirmation of registration\ownership will be issued, after the transaction has been registered, to property owners and financial institutions. This certificate will serve as proof of ownership and its legal status will be confirmed in the Regulations to the Bill.
Fraud will be avoided through the compulsory usage of Advanced Electronic Signatures by conveyancers and the Registrars of Deeds.

7. COMMENT
RESPONSE
With reference to Clause 6(3): As it will be deemed that the Conveyancer appeared before and in the presence of the Registrar of Deeds, what will the responsibility of the Conveyancer be in the case of fraud?
With reference to the Memorandum of the Bill, a concern is raised on how the person will be identified who prepares the deeds and documents and the Conveyancer who will execute the electronic deed.
It is the responsibility of the Conveyancer to ensure the sole usage of an allocated Advanced Electronic Signature, subject to the provisions of ECTA (see section 13(4) and section 37(3))
The Regulations to the Bill will provide for the registration of Authorised Users of the EDRS and the accreditation of such users’ Advanced Electronic Signatures is addressed under the provisions of ECTA.

8. COMMENT
RESPONSE
LAW SOCIETY OF SOUTH AFRICA
The LSSA confirms its support for an electronic deeds registration system in South Africa and has previously commented on some sections in the Bill that require revision.
Clause 1 – definition of ‘signature’:
A signature pursuant to the Bill means an ‘advanced electronic signature’ as defined in Clause 1 of the Electronic Communications and Transactions Act, which cannot be implemented in isolation. As required in terms of the ECTA, the Accreditation Authority may accredit authentication products and services in support of advanced electronic signatures.
The accreditation of advanced electronic signature and matters pertaining thereto is regulated by the Electronic Communications and Transactions Act 25 of The EDRS Bill cannot prescribe as to who must be the Accreditation Authority.

9. COMMENT
RESPONSE
Advance Electronic Signatures:
ECTA expressly requires that if a signature is required ‘by law’ an electronic record may only be signed using an advanced electronic signature. While an advanced electronic signature must be used where required by law, it may also be used in signing any electronic record. The implementation of the EDRS must therefore incorporate advanced electronic signatures. It is envisaged that the newly-established Legal Practice Council would be the authentication service provider for the legal profession, working in concert with the Law Society of South Africa.
Therefore, the use and implementation of advanced electronic signatures will require intimate engagement with the Legal Practice Council, as well as the LSSA before this pivotal aspect of an EDRS can be implemented in a viable and secure manner.
ECTA provides that the Department of Telecommunications and Postal Services is the accreditation authority for Advanced Electronic Signatures across all Government Information and Communications Technology (ICT) systems.

10. COMMENT
RESPONSE
Consultation process:
The LSSA recommends that both the Minister and the Chief Registrar of Deeds should be required to consult with the Legal Practice Council before respectively making regulations pursuant to clause 5 and issuing directives pursuant to clause 2(1). The LSSA has previously indicated that the Deeds Registries Regulations Board does not have the required expertise to meticulously consider the multidisciplinary aspects of the development and implementation of an electronic deeds registries system. Several stakeholders will have to be consulted, of which the Legal Practice Council embodies an important constituency.
Regulation 5(2) stipulates that the Minister must, before making regulations in terms of this Act—
(a) publish the proposed regulations in the Gazette for public comments;
(b) allow a period of at least 30 days for written comments on the proposed
regulations; and
(c) consider any such written comments received

11. COMMENT
RESPONSE
Clauses 6(3) and 6(4) – ‘statutory officer’:
The phrase ‘statutory officer’ is neither defined, nor clear. The phrase is also included under the definition of ‘electronic signature’. The LSSA has previously indicated this omission and recommends that the phrase be defined within the Bill.
The proposal is supported. ‘Statutory Officer’ should be defined to read as follows:
“Statutory officer means a person, other than a conveyancer or notary public, who is prescribed by the regulations under the Deeds Registries Act or who is authorised by any law other than the Deeds Registries Act, to perform the duties of a conveyancer or notary public;”

12. COMMENT
RESPONSE
UNIVERSITY OF JOHANNESBURG
At present, the Deeds Office sells its data to private parties who then create various products and services using data and sell those onwards. The UJ are trying to research social and economic aspects of South African property markets. UJ believes that their research is of both academic, policy and public interest. To obtain deeds data UJ has to obtain university funding to buy a subset of data from a private provider for hundreds of thousands of Rand. Despite the cost, the private provider still placed a number of limitations on the data – limiting the topics UJ can investigate.
Deeds registries are not state funded. It is a trading entity which generates its own income for all its operations and functions, including salaries.
Section 7 of the Deeds Registries Act, read with regulation 84 of the said Act, provides that the prescribed fees must be paid for the provision of information. No person, including the State, is exempt from the payment of these fees.

13. UNIVERSITY OF JOHANNESBURG
COMMENT
RESPONSE
UNIVERSITY OF JOHANNESBURG
An important point would it be possible for the Deeds Office to provide access to academics without undermining its ability to sell data for commercial purposes.
By providing access to academics, it will enable much greater research into South Africa property markets and property ownership while preventing the use of public resources to pay private providers for public data. Given the importance of the dynamics of land and property ownership in the post-apartheid area, I would go as far as suggesting that enabling access to this data for research purposes is in the national interest.
See response above.

14. Public Access Clause: insert a clause 4A:
COMMENT
RESPONSE
AMA BHUNGANE
Public Access Clause: insert a clause 4A:
“Any member of the public is eligible to become an authorised user of the electronic deeds registration system and access records contained therein. Regulations, issued by the Minister, may stipulate the manner and procedure for such access.”
The Regulations to the Bill will provide for different categories of Authorised Users. The Public is included and Public Users will be described as ‘public users using the e-DRS for purposes of obtaining information.’

15. Public Interest Exemption: Inserted as 5A:
COMMENT
RESPONSE
Public Interest Exemption: Inserted as 5A:
“(1) The Chief Registrar must waive the procedural requirements for accessing the electronic deeds registration system contained in the regulations issued by the Minister, unless the Chief Registrar can demonstrate that the request for information is not for the purpose of serving the public interest.
(2) The public interest is informed by all relevant considerations, including the special importance of the public interest in freedom of expression and the free flow of information to the public through the media in recognition of the right of the public to be informed.”
Section 7 of the Deeds Registries Act finds application and provides for the public to access the registration system in order to obtain deeds registration information upon the payment of the prescribed fees.

16. COMMENT
RESPONSE
amaBhungane submits that Clause 5(1) of the Bill be amended to read that “The Minister must, on the recommendation of the Regulations Board referred to in section 9 of the Deeds Registries Act, make regulations relating to-”.
In respect to public access provisions in Clause 5(1) (e) and (f), it is proposed that the Bill stipulate the timeframe within which the regulations must be published for comment and finalised. In amaBhungane’s view, within a period of six months – during which time the existing regulations to the Deeds Registries Act should continue to apply as a transitional measure.
The discretion in the making of the Regulations rests with the Minister and the matter is addressed in clause 5(1) of the Bill.
The period for publication for comment of the Regulations is addressed in Clause 5(2) of the Bill. It is standard practice to provide for a publication period of 30 days.

17. GENERAL COMMENTS

18. Nomaroma Bam-Tshangana:
Comment
Response
Nomaroma Bam-Tshangana:
It is high time Deeds Registry goes online. This can also assist on curbing Property transfers from unregistered Property Practitioners. I support this system if the Property Practitioner Agency will participate in the process by having an online tab on the system to release own registrations.
Pamella Faas: 
This will be in line with the 4th Industrialization goals. Corruption will be minimized as there will be an audit trail of who transferred property at what date.
Mark Surgeon:
Please find comments on the National Forest Amendment Bill.  No, I do not. I'm skeptical of governments motives with regards to this bill and land reform.   
Noted. The Regulations to the Bill will prescribe the different types of Authorised Users of the EDRS as well as the registration requirements of such users.
Noted
Noted. However, it is irrelevant to the Bill under consideration.

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