UPDATE | More deeds offices close due to Covid-19, serious Cape backlog - What you need to know

Chief Deeds Registrar Carlize Knoesen says Cape Town and Johannesburg - the only two offices out of the 11 countrywide where municipalities are digitised - have been worst hit by the lockdown.

The Johannesburg and Pretoria deeds offices will be opening on Wednesday, 17 June, following closure on Friday night, 12 June "after conveyancers who were in the building tested positive", Knoesen has confirmed. 

Decontamination was expedited to try and have the offices open on Monday, 15 June - but this has been extended until Wednesday.

The Cape Town and Vryburg Deeds offices have since opened on Monday. 

The Cape Town Deeds office has had to close twice, since being allowed to re-open under Lockdown Level 3 Restrictions at the beginning of May. The result is a batch of 14 000 backlogged deeds and a reduced staff compliment that needs to look at alternatives to ensure the registering of properties gets back on track. 

The delays of course have had considerable knock-on effects, considering between 10 000 and 12 000 bonds would usually be registered in the deeds office a day. As a sector, property contributes significantly to the GDP, supported by the fact that the "deeds office processed R12 billion in registrations in April 2019 alone".

The usual turn around target is to have all deeds lodged, available for registration within 7 workings days, with a number of compliance and approval certificates subject to municipal by-laws all required for the successful registration. Under lockdown, this has been severely impacted.

UPDATE | Cape attorneys call for urgent Deeds registration forward plan to manage risk of Covid-19

The Cape Town Attorneys Association (CTAA), together with Tygerberg Attorneys Association and the Institute of Estate Agents of South Africa (Western Cape) lodged an urgent application in the Western Cape High Court on Friday, 12 June. Clive Hendricks, Chairperson of the CTAA explains that the application has four main legs being:

• The Cape Town Deeds Office re-open and resume its full operations immediately with sufficient staff, subject to social distancing and related health protocols;
• The Minister of Rural Development and land Reform together with the Chief Registrar of Deeds and the Cape Town Registrar of Deeds develop, publish and implement a rapid and effective intervention plan aimed at addressing the current transaction backlog in the Deeds Office;
• The Chief Registrar and the Cape Town Registrar develop, publish and implement an integrated and co-ordinated Deeds Office Covid-19 Action Plan to ensure that there is a hierarchy of interventions with closure of a particular office being the absolute last option to consider;
• The Respondents lodge a comprehensive report with the Court setting out the progress and statistics pertaining to the backlog on conveyancing transactions and turn-around timeframes for normal conveyancing transactions by Wednesday, 30 September 2020.

Knoesen says the department is still working towards this 7 working days turnaround, despite not having full capacity at the various offices due to the required Covid-19 safety and hygiene protocol that has to be implemented. 

Challenges for Cape Town office in Covid-19 epicentre

"From the start we did have challenges in Cape Town, it is also carefully watched by the Unions for compliance issues," says Knoesen.

"A national committee and provincial committee to assist all the Deeds registries and all other chief directorates in the provinces in management have since been created. I've been informed in the Western Cape that the Provincial Chairperson communicated the capacity to return to office can only be one third (of the full staff compliment).

"The Cape Deeds plans to work from June 15 with 58% on senior examination and 54% on Junior examination, which is more or less 55% of operations," states Knoesen.

Other offices with 50% capacity staff are rotated every week in order to comply with Covid-19 regulations.

"We're not recruiting as in a normal year, so some processes have been affected. Usually, if we see a constant higher lodgement in a specific office and they need more resources, we would plan for it. But now we are already working on lower capacity and not taking any unnecessary risks. We also have to consider our agreements with unions. All of this will have an implication within this year."  

Cape Town is currently experiencing double the lodgement volumes, while Joburg's lodgements have increased five-fold. 

Cape Town also happens to be a multi-tenant building, sharing with Parliament and the Surveyor General and other tenants. This further complicates the risks associated with Covid-19, according to the chief registrar.

"In buildings where we share, it is more difficult to manage the facilities. If Parliament or the Department of Justice decides to decontaminate we are not always aware of their plans and processes and we are also just informed. That also happened in Johannesburg, there were incidents where we had to close not because of our officials or legal fraternity, but because of a police person (who was infected). This happened in Kimberly as well. In Mthatha and Vryburg we closed due to other Department's decontamination exercises.

"With multi-tenant buildings and the decontamination procedures, the possibility exists that they will close more often than where we are not sharing. 

"I know they will try and do their best to work off the backlogs. I do think one must have sympathy, as well because there is a closer eye being­ kept especially in Cape Town being the epicentre.

"There is also fear by some officials to return to work," says Knoesen.

Extensions for lapsed clearance certificates?

When it comes to lapsed clearance certificates Knoesen says the deeds office is unfortunately not responsible for offering extensions on lapsed documentation - which are absolute non-negotiables in order for the process to proceed.

"We are creatures of statute. We must comply with legislation and our legislation is very clear that no deed can be registered without a valid clearance certificate issued by municipalities.

Knoesen confirmed there have been many such requests as the impact of Covid-19 Lockdown has created exceptional circumstances, but states decisions to amend legislation could only be taken by the Minister of COGTA Nkosazana Dlamini-Zuma.

"We have no authority to give any extensions. It would be the same as to request being able to register without a transfer duty receipt."

Knoesen says there has been "no problem re-issuing the extensions, but there is a cost implication which must be considered".

"In most instances, where there is a sale of property the funds are paid into a trust account handled by the conveyances or attorneys who handle the transaction. If that was done and it was managed properly there might be interest, while not a lot, it could be used in this instance to cover costs," suggests Knoesen.

There are also bylaw certificates that need to be considered. Specifically, an occupation certificate in Mpumalanga, as well as the SPLUMA certificate requirement. Knoesen says there have been instances where the process started long before lockdown but they cannot proceed with the transaction because they still need these documents before registration and some municipal functions are still closed. 

"Clearance certificates prove that the rates and taxes are up to date and there are no arrears, as long as a property is in your name you are responsible for it."

So what is the plan to catch-up?

The Deeds offices have a standard operating procedure to deal with backlog.

Knoesen says it involves in some cases a hybrid system, "where we make small teams - each team would deal with specific processes from endorsements to checking interdicts to speed up the process.

"Each Registrar of Deeds must have a plan to manage the backlog. In Pretoria and Johannesburg Deeds we were informed of an expected lodgement of 9 000 deeds. Both acting Registrars of Deeds already met with the conveyancer to agree on how it will be managed.

Cape Town Deeds Registry must submit their action plan to address its backlog by Monday, 15 June 2020.

"Usually, examiners, deputy and assistant registrars will start voluntary examining extra deeds over and above the daily quotas," says Knoesen.  

Knoesen received a number of requests to allow officials to take work home to be completed.

"This is mostly requests for the examination section, with varying reasons. 

• Due to open plans social distancing is difficult.
• Backlogs can be worked off faster.
• To ensure safety of officials from being infected with the Covid-19

"In the past Deeds had audit finding on the movement of deeds in and out of the offices by officials and the security risks associated with it. Examination and registration of deeds and documents is a core function and in terms of Sect 3 of the Deeds Registries Act 47 f 1937 under the sole mandate of the Registrar of Deeds. Each Registrar of Deeds must manage the process and functions as they believe is best for their office in the current circumstances. Ensure safety of the records as well as the officials, in the best interest of the Branch and Department." 

The Chief registrar could not confirm if the hardest hit office in Cape Town would be considering this measure to deal with the backlog, as she will only receive their backlog action plan on Monday.

Knoesen stresses, functions to be performed in terms of Section 3 of the Deeds Registries Act, Registrars remain autonomous.

"The function of registration of deeds is in their sole responsibility, and then with it the safeguarding of the records in their offices. So, if you look at my role of Chief Registrar of Deeds it is basically to ensure uniformity in the country.

"I am then also the one who is responsible to ensure and avoid audit and risk in my branch. In the environment that I work in, I can give a legal opinion as Chief Registrar or a recommendation but it does not have to be accepted by a registrar - especially if they don't agree.

"Once it goes to court, they will have to be able to defend their own viewpoint. They manage their offices themselves."

Knoesen says if she decides to allow Working from Home with the necessary security protocols in place, she "will have to face the music if there is a negative audit finding".

"I do have sympathy for the requests that I have received."

"We are all quite aware if we had the electronic deeds registration system available a lot of the problems we are experiencing now could have been avoided and service delivery would have been much better.

Knoesen says she and her principals are now focused on getting the electronic deeds registration system up and running within the next three years.

"There is a lot of pressure to have it done sooner, but we are reliant on the final decision makers within Government as well as the digitisation to be available throughout the value change.

"Where municipalities are not electronic there is a lower rate of lodgement. We don't want a bad experience with the roll-out, deeds is definitely pushing to have our systems modernised. There will be consultation throughout the value chain to ensure an interface system to the advantage of everyone," states Knoesen. 

* This report has been updated. Previously Johannesburg backlog unconfirmed, includes Friday evening closure of Pretoria and Johannesburg deeds offices due to Covid-19 risk; Adds Cape Town Attorney's Association High Court Application Comment.