Introduction
This article examines the legal and practical effect of Chief Registrar’s Resolutions 2 and 4 of 2018, which prescribe that a rates clearance certificate (“RCC”) is only valid for the purposes of facilitating the transfer of the property in the Deeds Office for a period of 60 days from the date of issue thereof, even if the municipality that issued that RCC issued it with a longer validity period (typically 90 or 120 days).
The Relevant Law
Section 118(1) of the Local Government: Municipal Systems Act 32 of 2000 reads as follows:
118 Restraint on transfer of property
(1) A registrar of deeds may not register the transfer of property except on production to that registrar of deeds of a prescribed certificate-
(a) issued by the municipality or municipalities in which that property is situated; and
(b) which certifies that all amounts that became due in connection with that property for municipal service fees, surcharges on fees, property rates and other municipal taxes, levies and duties during the two years preceding the date of application for the certificate have been fully paid.
(1A) A prescribed certificate issued by a municipality in terms of subsection (1) is valid for a period of 60 days from the date it has been issued.
Section (1A) used to refer to 120 days (rather than 60 days) but was amended by section 19 of the Local Government Laws Amendment Act 19 of 2008, which came into effect on 13 October 2008. It now refers to 60 days.
The thrust of the key phrases are that the RCC is valid for 60 days from date of issue.
Historical Interpretations by the Deeds Office
Chief Registrar’s Circular (“CRC”) 10 of 2004 explained that some RCC’s didn’t (at the time) show an expiry date. This was creating problems for the Deeds Office because the examiners weren’t certain of how long the certificates remained valid for, because some municipalities issued them for longer than the 120 days prescribed by law. This CRC was issued to explain that that the examiners must calculate the number of days that the RCC is valid for, in terms of the calculation method set out in the Interpretation Act 33 of 1957. It explains the calculation method and said that the examiners must count 120 days from the date of the issue date as shown on the certificate.
Then came CRC 11 of 2005. It simply said that the Deeds Offices could accept certificates that were valid for longer than 120 days, and that the expiry date of those certificates would be the date of expiry as printed on the RCC and not 120 days after the date of issue.
After this, came CRC 8 of 2008. This simply explained that the law had changed and that the 120 day period should now be regarded as a 60 day period instead. This circular expressly referred to CRC 10 of 2004 and said that the 120 day period referred to therein must now be regarded as 60 days instead. However, unfortunately, no reference was made to CRC 11 of 2005 (which said that the examiners could accept certificates that were valid for longer than the prescribed period).
This all came to a head recently with the issue of CRC 2 of 2018, which (having noted that it was the prevailing practice of municipalities to issue RCC’s for longer validity periods than the prescribed 60 days) directed examiners to regard these RCC’s as only being valid for the prescribed period of 60 days (notwithstanding that they were issued for longer periods by the municipality).
To clarify why CRC 2 of 2018 had been issued (because it was causing a furore in the industry), CRC 4 of 2018 was issued. The wording of this circular is very similar to the wording of CRC 10 of 2004 (in which the calculation of the 120 days was explained with reference to the Interpretation Act, because at that time some RCC’s didn’t show expiry dates and the examiners weren’t sure how to calculate the validity periods of the RCC’s). The two key bits are from paragraphs 3 and 4:
From paragraph 3:
It is clear from the provisions of section 118 that an obligation is placed on the Registrar of Deeds to see that the expiry date on a certificate complies with the provisions of section 118(1A) of Act No. 32 of 2000. The provisions of section 4 of the Interpretation Act, 1957 (Act No. 33 of 1957) finds application in this regard. The said section reads as follows:
“When any particular number of days is prescribed for the doing of any act, or for any other purpose, the same shall be reckoned exclusively of the first and inclusively of the last day, unless the last day happens to fall on a Sunday or any public holiday, in which case the time shall be reckoned exclusively of the first day and exclusively also of every such Sunday or public holiday.”
From paragraph 4:
In order to comply with the provisions of section 118(1A) of Act No. 32 of 2000, it is advisable that registrars of deeds regard certificates as valid for a period of 60 days from the date of issue regardless of the disclosure of an expiry date that does not comply with the provision of Act No. 32 of 2000.
Interpreting S 118(1A)
The problem with the view adopted by the Chief Registrar in CRC 4 of 2018 is that she appears to be labouring under the misapprehension that section 118(1A) creates and obligation on the examiners to ensure that the expiry date on the RCC’s complies with section 118(1A). This is the reason that the Deeds Office has now adopted the view that (notwithstanding the actual date of expiry printed on the certificates by the municipality) the examiners must disregard this expiry date and simply regard all RCC’s as only being valid for 60 days as provided for in section 118(1A). With respect, however, the Chief Registrar is clearly incorrect in assuming this obligation, as section 118(1A) imposes nothing of the sort. All section 118(1A) says is that a RCC is valid for 60 days from the date of issue. It cannot be a responsibility of the registrar to ensure that the municipality issues RCC’s with certain expiry dates, as this power falls outside the scope of the registrar’s function and ability.
There is naturally an obligation on the part of the examiners arising from section 118(1) read together with section 118(1A) not to allow transfer to pass unless there is a valid RCC covering the date of transfer. It is in this regard
that the nub of the issue really arises, because section 118(1A) clearly says that RCC’s are valid for 60 days from date of issue, and uncertainty has arisen in relation to how an examiner is supposed to treat them if the municipality has printed an expiry date on them that is longer than the 60 days prescribed by law.
The authors accept that on the face of it the plain wording of the section prescribes strictly that RCC’s are only valid for 60 days from date of issue, meaning that any period of validity longer than 60 days must be disregarded. However, there are other methods of interpretation that can be adopted in certain circumstances. It is widely recognised in our law that where a strict grammatical interpretation of the statute does not make sense or causes injury, another (more wholistic and reasonable) approach, based on understanding the words in the light of their intended purpose, can be adopted.
In an article written by Judge JR Murphy on the discretion of the judges to apply a purposive approach[1] (where the literal grammatical approach is inappropriate), he said the following:
“The law reports are replete with countervailing arguments in favour and against strict grammatical or logical (textual) interpretation, on the one hand, and purposive or teleological (policy-oriented or contextual) interpretation, on the other.”
This method of interpretation is not only available to judges, but is actually required of them by the Constitution[2]. This was clearly set out in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others[3] where the Constitutional Court held that:
“The technique of paying attention to context in statutory construction is now required by the Constitution, in particular, s 39(2). As pointed out above, that provision introduces a mandatory requirement to construe every piece of legislation in a manner that promotes the ‘spirit, purport and objects of the Bill of Rights.’”
However, a judge cannot go so far as to change the law (thereby usurping the function of the legislature in making the law) by giving the plain words and interpretation that is far-fetched purely because it feels right to do so. Judge Murphy explains this as follows:
“… in the oft-repeated dictum of Innes CJ in Dadoo Ltd and others v Krugersdorp Municipal Council 1920 AD 530, 543, who, after stating that departure from the ordinary meaning of the language is only justified in cases of ambiguity, added: ‘But there must, of course, be a limit to such departure. A Judge has authority to interpret, but not to legislate, and he cannot do violence to the language of the lawgiver by placing upon it a meaning of which it is not reasonably capable, in order to give effect to what he may think to be the policy or object of the particular measure”.
The authors are of the view that when adopting a purposive approach to section 118(1A) it is clear that a RCC with a validity period of more than 60 days should be regarded as valid for the purposes of allowing transfer to pass, because that certificate is complying with the section inasmuch as it is valid for 60 days, but is thereafter further valid for a longer period for the sake of the convenience of all parties concerned. In a sense it can be said to be “overly-compliant”.
Consider the purpose behind RCC’s. The idea is that a seller must obtain proof from the municipality that his/her/its rates and municipal charges have been paid up in full before passing transfer (or alternatively that at least all such charges incurred in the two year period preceding application for rates clearance figures) have been paid. It takes around 3 months to register your average transfer, and can often take longer if there are delays in any aspect of the conveyancing process.
It costs money (and takes time, usually around 2 – 4 weeks) to obtain a RCC. For this reason, it is desirable that a seller need only apply for, and pay for, the RCC once in the transfer process. In order to facilitate the issuing of a RCC that will be valid for a reasonably long period of time (such that it is valid for approximately 3 – 4 months, and it can be applied for only once in the conveyancing process but be valid long enough to still facilitate transfer at the end of that process) municipalities issue RCC’s with a validity period of 3 – 4 months (or 90 – 120 days). It is uncommon and actually quite rare that a transfer will pass in 60 days and as such the RCC’s issued with a validity period of 60 days commonly lapse before the transfer, requiring a second application for (and payment of) RCC’s. This creates an unnecessary burden on all of the parties involved – the seller, the conveyancer, and the municipality. It also often delays transfer because a new certificate must be applied for if the old one has lapsed and this takes a further 2 – 4 weeks to obtain.
There is thus good reason for municipalities to issue RCC’s that are valid for longer than 60 days. The question is whether the “additional validity period” over 60 days can be regarded as having any effect, in light of the wording of section 118(1A).
Let’s consider what happens when the “additional validity period” is disregarded. The municipality has ‘charged’ the seller for 3 -4 months worth of the rates and service charges in advance and issued the certificate with a validity period correlating to same (lets work with 120 days in this example). However, the Deeds Office only regards the RCC as being valid for 60 days from date of issue.
This means that the seller has had to pay for 120 days of “validity” when the RCC can actually only be used for 60 of those days. The result is that after the 60 days passes, the RCC is considered invalid by the Deeds Office (even though it is still considered valid by the municipality because the account will still be in credit for another 60 days or so). If the transfer has not then registered within 60 days of the issue of the RCC, the conveyancer then has to apply for another RCC to facilitate transfer – at additional cost and administration to all concerned. However, in some municipal areas new RCC’s cannot be obtained until the old RCC has expired – meaning that the poor seller has to “wait out” the balance of the validity period of the RCC (ie another 60 days) before he can apply again, thus delaying transfer by some 2 months. The seller must then pay again for 120 days in advance in order to obtain the second RCC. Officials within the Deeds Offices often report the frustration with which they have to turn away the sellers who are queuing at their doors in desperation because they cannot afford to wait another 2 months and pay again for another RCC.
Purposive Approach Recommended
It is submitted that the above practical difficulties can be averted if one adopts a purposive interpretation of section 118(1A). The idea is to ensure that the municipal account is in credit for a period of time long enough for transfer to take place, so that when transfer does occur, the seller’s account is not owing anything to the municipality. This is fully achievable when a RCC is issued for 90 – 120 days, and any period longer than 60 days that such RCC might be valid for actually facilitates the purpose of the legislation better than the 60 day rule itself actually does. To this end, it makes sense to understand the 60 days as being a minimum validity period, and not a maximum, such that any RCC that is issued by a municipality as being valid for 60 days or more should be regarded by the Deeds Office as being valid for the full “additional period” and not only for 60 days as required by the strict reading of section 118(1A).
It is further submitted that this purposive interpretation does not unduly strain the wording of the statute – any RCC issued for any period of longer than 60 days, is still valid for 60 days. At the worst, the RCC is “overly-compliant” with the section concerned. Thus the legislative requirement for validity has been met.
Conclusion
If one adopts a purposive interpretation of section 118(1A) RCC’s issued by municipalities for periods longer than the prescribed 60 day period should be regarded (in line with CRC 11 of 2005) as being valid for the full “additional period” as stated on the RCC. The purposive interpretation is not only required by our Constitution, but it does not unduly strain the wording of the statute, and it is the most sensible approach to the situation for all stakeholders concerned. It should thus be adopted in preference of the strict, literal approach advanced by the Chief Registrar in the two most recent circulars 2 of 2018 and 4 of 2018.
Post Script: Calculating the 60 Day Validity Period
Susan Hurter of the Pretoria Deeds Office explains the calculation method in simple terms as follows. The same method is to be applied when calculating a 90 or 120 day validity period, save that the number of days referred to in steps 3 and 4 will differ from one case to the next.
- The date on which the certificate is issued is excluded
- Start the count from the day after the date of issue
- Count 60 days (This include Saturdays, Sundays and Public holidays)
- Day 60 is the date on which the certificate expire –UNLESS day 60 falls on a Sunday or Public holiday – of which the next working day will be the expiry date.
Note: If Day 60 falls on a Saturday (Even if the Saturday is a Public Holiday), then the certificate will expire on the Friday (although being the 59th day).
[1] Constitution of the Republic of South Africa 108 of 1996 (as amended).
[2] Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others (CCT 27/03) [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) (12 March 2004), para 91.
[3] Judicial Independence and Purposive Interpretation, JR Murphy, available at https://www.sabar.co.za/law-journals/2011/april/2011-april-vol024-no1-pp27-31.pdf, accessed 1 September 2018.
