Currently, the answer to this question is don’t worry, there is a quick and cost effective remedy at hand. All you need to do is attest to an affidavit stating that after a thorough search you have failed to locate the original title deed and you further confirm that your original title deed has not been pledged or held by anyone as security. If the property is bonded, the consent of the bondholder will need to be obtained. Your conveyancer can then use this affidavit to apply at the relevant Deeds Office for a certified copy of the Title Deed, at a minimal cost.

Due to the increase in fraudulent transactions, which by and large utilize the current Regulation 68 mechanism, it was necessary to implement changes thereto in order to try and reduce these fraudulent transactions from taking place.

Accordingly in terms of the amendment to Regulation 68 of the Deeds Registries Act 47 of 1937 as published in Government Gazette No. 42186 dated the 25^th January 2019, and which amendment was supposed to come into effect on the 25^th February 2019, the current process has been repealed. The process to be followed in applying for a certified copy of a Title Deed / Mortgage Bond / Notarial Bond / Registered Lease in terms of such amendment is as follows:-

1. The affidavit whereby you state that you have conducted a “thorough search” and have failed to locate the original Title Deed now needs to be attested by a Notary Public and no longer just a Commissioner of Oaths. A Notary Public is a specialist attorney who has knowledge of certain acts, and the processes prescribed therein, and who is legally empowered to officially witness signatures, take statements and certify the validity of documents. Being held to a higher standard of care than an attorney, a notary is a specialist in the drafting and/or legalisation of certain documents. The legality of which can be positively assumed, drawn from the fact that the document was notarially executed.

2. Previously where the application for a certified copy only needed to be lodged in the Deeds Office, it is now a requirement that the application needs to first be advertised in the Government Gazette, and for two weeks thereafter the application must lie open for inspection by the public at the Deeds Office, during which period any person with an interest therein may object in writing to the Registrar of Deeds to the issue of such copy. Only once advertisement has been made, and the two week period has passed with no objection, will you then be able to lodge your application for a certified copy in the Deeds Office.

Both of the above changes will result in further costs and delays for clients.

However, with the receipt of Chief Registrar’s Circular No.1 of 2019 dated the 20^th February 2019 the nature and impact of the above amendments have now been postponed indefinitely due to the following:-

1. The requirement that provides for the attestation of the affidavit by a Notary Public only, on reconsideration has been found to be impractical and may cause undue hardship to the public.

2. The motivation behind the amendments to Regulation 68 was the need to enforce stricter requirements due to the increase in fraudulent transactions. Accordingly the publication of the advertisement in the Government Gazette, which is not widely read, would not assist in reaching the widest audience and it has been proposed to amend the publication from the Government Gazette to publication in a newspaper circulating in the area in which the property is situated only.

In light of the above, the Deeds Registries Regulations Board at a meeting on 19 February 2019, resolved to suspend the implementation of the amendments to Regulation 68, as referred to above, until further notice.

Whilst we await an outcome as to the changes to be effected, the status quo remains, however it is imperative that starting from now clients are asked at the onset of the transfer process where their original Title Deed is, especially in cases where the property is not bonded, so that if they cannot locate their original Title Deed, the requisite process can be attended to as soon as possible so as to prevent any undue delay in the transfer of the property.