In Back to Christ Assembly Church v Back to Christ Assembly and Another[1]

The applicant (Back to Christ Assembly Church) bought the Soshanguve property for R 912.50 (NINE HUNDRED AND TWELVE RAND AND FIFTY CENTS) in terms of deed of sale dated 17 June 1999 from Gauteng Provincial Department. The said property was erroneously transferred to Back to Christ Assembly (a Non-Profit Company) instead of Back to Christ Assembly Church (a Non-Profit Organisation).

The conveyancer applied for an endorsement in terms of section 4(1)(b) against the Title deed of the said property for the ratification of an error that occurred on date of registration.

What brought this matter before the court was the fact that the Registrar granted the application and endorsed the said Title Deed in terms of section 4(1)(b) even though there was a transfer of rights that occurred when the property was transferred from one entity to another.

The court was faced with the following questions:

1. Should the application have been brought in terms of section 4(1)(b)?

    

2. Was there an error in the name or the description of the transferee in the Deed? If there was the application must succeed.

    

3. If there was an error, whether it appeared from the Deed that there may be a person who may have an interest in the rectification of the error?

    

4. If so, whether that person had consented in writing to the rectification of the error? If the person with an interest had not consented to the rectification of the error or a court had not authorised it, then too, the application must succeed.

In CRC 2 of 2010[2] it was clearly stated the following: “Section 4 of the Act endows the Registrar of Deeds with limited powers to rectify errors in registered deeds. With that power comes the responsibility of ensuring that any rectification is in accordance with the section and does not, specifically, have the effect of transferring real rights. The notion that the responsibility of ensuring that no real rights are transferred is borne by the preparing conveyancer in terms of regulation 44A is fallacious because a conveyancer accepts responsibility only for matters specifically mentioned in the regulation and which do not include the fact that a 4(1)(b) application will not have the effect of transferring real rights. Furthermore sections 3(1)(b) and 15A (3) of the Act put the matter beyond doubt”.

The Honourable Judge stated the following in his judgement:

1. “The property was registered in the name of a non-juristic person. The respondent, a juristic person applied for the property to be registered in its name. What the respondent applied for was not a correction of the name of the transferee but rather a change in the identity of the transferee. The effect in my view was the transfer of rights contrary to section 4(1)(b)(iv) of the Act”[3]

    

2. “One would have expected the Registrar to have carefully considered whether the applicant and the respondent were the same entity or person. Section 3(1)(b) of the Act imposes upon the Registrar an obligation to “examine all deeds or other documents submitted to him for execution or registration, and after examination reject any such deed or other document the execution or registration of which is not permitted by this Act…”. It appears to me that the Registrar failed in this duty. Had the Registrar discharged its duty diligently it would have been seen that the applicant and respondent were not the same person or entity”.[4]

It seems that in this case section 4(1) (b) cannot be invoked and therefore an application to Court had to be made for the rectification transfer from Back to Christ Assembly to Back to Christ Assembly Church.

The court established that there was no error that occurred as these are two separate entities. The one is a juristic person under the Companies Act and the other is an unincorporated association.