SECTION 4(1)(b) OF THE DEEDS REGISTRIES ACT 47 OF 1937 AS A REMEDY FOR THE MISTAKEN TRANSFER OF LAND Bester NNO v Schmidt Bou Ontwikkelings CC [2012] ZASCA 125 (21 September 2012)

Abstract

The deeds office practice was recently (dis)honoured by the Supreme Court of Appeal’s (SCA) decision in Bester NNO v Schmidt Bou Ontwikkelings CC, which was expected to address an “interpretative dearth” with regard to the application of section 4(1)(b) of the Deeds Registries Act 47 of 1937 (DRA). The main issue (for the purpose of this note) in this case related to two questions. The first question before the court was the applicability of the abstract theory of ownership to immovable property and how it impacts on the registration of such ownership in the deeds office. The second question dealt with the correct procedure in terms of the DRA to rectify a mistaken transfer
arising from an incorrect property description in the title deed. With reference to the second question, the SCA applied section 4(1)(b) as a remedy to rectify the mistaken transfer of the property. This note analyses the decision in Bester v Schmidt Bou with regard to the manner in which the respondent, Schmidt Bou Ontwikkellings CC (Schmidt Bou), applied for an order for rectification of the mistaken transfer of an incorrect property, and the court’s application of the relevant provisions of the DRA. The note will conclude with a discussion of alternative provisions of the DRA which could be applied to remedy the dispute in this case.