The Responsibilities of Conveyancers and Notaries
A conveyancer is an attorney who has specialised in the preparation of deeds and documents which by law or custom are registerable in a Deeds Registry. Before an attorney is permitted to practice as a conveyancer, he/she must successfully pass a written examination and an optional oral, and also further be admitted to practice as such by the High Court of South Africa. Needless to say a person cannot be admitted as a conveyancer, until he/she has been admitted to practice as an attorney.
Statute law is brief regarding the duties and responsibilities of a conveyancer, except for the Deeds Registries Act 47 of 1937(the Act) which provides that certain deeds and documents are to be prepared by a conveyancer, and that such preparer accepts responsibilities for the correctness and accuracy of those facts referred to in regulation 44A. No other Act places any further duties and/or responsibilities of the conveyancer. Where a question of damages arises as to the incorrect registration of a deed where sole responsibility cannot be placed on either of the parties or the registrar of deeds, the court no doubt will apportion damages (see in this regard Barclays Bank v Minister of Lands 1964(4) SA 284 T and Mouton v Mynwerkers Unie 1977 (1) SA 119 (A)).
The conveyancer is also responsible for ensuring that the necessary financial arrangements have been made for transactions he/she registers. It is thus his/her responsibility to obtain all the necessary guarantees etc pertaining to a transaction.
THE NOTARY PUBLIC
In the case of Incorporated Law Society v Kantor 1914 TPD 510, De Villiers JP referred to the profession of a notary as follows:
“The position of a notary is a very responsible one. In some countries, even today, the number of notaries is strictly limited, and notaries are only appointed form the highest ranks of the profession and have to be men(sic) of the highest character. I need not now enter into the
question of whether it is not advisable that we should follow a similar system in this country, but it is the duty of the Court to make notaries realise that their duties are of the greatest importance and strictly personal.”
A notary, as a conveyancer, also has to pass the written and possibly an oral examination before being admitted to practice as such by the High Court. Needless to say, a notary also has to be admitted as an attorney before he/she can practice as a notary.
By law certain documents must be drawn and attested by a notary, e.g. antenuptial contracts, notarial bonds, certain contracts pertaining to immovable property, and leases to be registered in terms of section 77 of the Act. Certain documents need not by law exclusively be drawn by a notary, but when the public employ a notary to draft a document, they have the following safeguards:
- A notary is admitted to the office only after the court is satisfied that he/she is a fit and proper person to hold office and that he/she has a sound knowledge of his/her duties.
- After admission a notary always remains subject to the control and discipline of the court and may be removed from office at any time if he/she misconducts himself or herself therein.
- There is a high tradition of honesty and reliability attached to the office and faithfully upheld by the majority of notaries.
- A notary who does not use reasonable skill in exercising this calling or draws a document which is not legal, may be held liable for damages to any person who may suffer as a result thereof.
- When a document is executed before a notary there is a presumption that every statement contained in the document is true and that all the proper solemnities have been observed by the notary public, which presumption can only be rebutted by clear proof to the contrary.
- Where one or both of the intended consorts are represented by an agent, it is essential to provide full reference to the power of attorney in terms of which such agent is acting and a stipulation that such authorisation (power of attorney) is filed in the protocol of the notary concerned. Where an agent also appears on behalf of a guardian or parent his/her authority may be extended to consent to such contract as he/she deems fit.
In Ex parte Moodly and Another and Ex parte Iroabuchi and Another 2004(1) SA 109 WLD, Judge Satchwell held that antenuptial contracts executed on the strength of a power of attorney must be rejected. However, in the same division, in the case of Ex parte Cheng and Another 2004(1) SA 118 WLD the decision of Judge Satchwell was criticised. There now exists two conflicting decisions in the same cognisance of these cases. Practitioners are to follow the practice that they deem the correct one, until such time as the Supreme Court of Appeal provides clarity in this regard.
FOR WHOM DOES THE CONVEYANCER ACT
For many years uncertainty prevailed as to whether the conveyancer, appointed by the seller to effect transfer of immovable property, has any duty safeguard the interest of the purchaser.
In the case of Basson v Remini and Another 1992(2) SA 322 N it was held that the conveyancer acts for both the seller and the purchaser. However, in the case of Mama v Lotter and Another 2007(4) SA 315 C the converse opinion was held, Similarly, in the Namibian case of Vaalz v Registrar of Deeds. Namibia: in re Nôckel’s Estate 1993(4) SA 353 (NmHC) it was held that the “conveyancer is nothing but the agent of the person wishing to effect the transfer of his property”.
Judge HR Erasmus, in the unreported case of Johan Willem Bruwer and Another v Pocock and Bailey Incorporated and Another (Case No. H 22/2009), considered the above two judgments and concluded that there rests an onus on conveyancers to ensure that the purchasers rights are protected in the conveyancing process. It was further held that conveyancers have a legal responsibility in accordance with the professional code of conduct which the community at large expect from persons holding such capacity, to protect their interest. It was also held that the negligent omission on the part of a conveyancer to protect the interest of a purchaser is unjust (onregmagtig).
THE RESPONSIBILITY OF THE CONVEYANCER / NOTARY
In the Judgement handed down in the case of Margalit v Standard Bank of SA Ltd. (883/2011)  ZASCA 208 the judge held as follows in para 26:
“To avoid causing such harm, conveyancers should therefore be fastidious in their work and take great care in the preparation of their documents. Not only is that no more than common sense, but it is the inevitable consequence of the obligations imposed by section 15(A) of the Act as read with regulation 44, both of which oblige conveyancers to accept responsibility for the correctness of the facts stated in the deeds or documents prepared by them in connection with any application they file in the deeds office.”
The judge went further in para 29 by averring as follows:
“As I have said a conveyancer should fastidiously examine all relevant documents. That was clearly not done by the second respondent. The standard of care it exercised fell well short of what is expected of a reasonable conveyancer, and I have no hesitation in finding that the delay caused by the rejection on 22 May 2008 was due to negligence on the part of the second respondent.”
Given the referred to two extracts from the judgment, it is obvious that a conveyancer who does not apply the necessary care and diligence when preparing deeds and documents can be held delictually liable.
All conveyancers are urged to read the full judgment and not crit the judgment on the merits thereof, but to heed what the judge said about the care and diligence a conveyancer must apply when drafting deeds and documents.
Another recent case which once again places the responsibility of the Conveyancer under the spotlight is Heckroodt v Wall (A 836/2014) ZAGPPHC433 dated 10 June 2016, where the judge clearly held that there is a duty on the conveyancer to property attend to the finances of the property in association. The judge alluded to such duty as can be seen in the following light as expressed by Neethling and Others in Neethling et al. The law of delict, 5 & L edition on page 63;
“Sometimes the person’s occupation or office he holds places a legal duty upon him to conduct himself in a particular manner in relation to the public or certain people”
From the aforesaid judgement the Conveyancer / Notary can be held liable for a delictual claim should he/ she not act in the best interest of their clients.
There are numerous judgements on the responsibility of the Conveyancer and Notary, but the cases of Margalit and Heckroodt are the two leading cases which clearly provide that if one does not act diligently, you can be held liable for a delictual claim.