CHIEF REGISTRAR S CIRCULAR NO. 7 OF 2004

Transcription

1 CHIEF REGISTRAR S CIRCULAR NO. 7 OF 2004 MINING TITLES REGISTRATION ACT, 1967 (ACT NO. 16 OF 1967), AS AMENDED BY THE MINING TITLES REGISTRATION AMENDMENT ACT, 2003 (ACT NO. 24 OF 2003) 1. DATE OF COMMENCEMENT The Mining Titles Registration Act, 1967 (Act No. 16 of 1967), herein after referred to as the Act, came into operation on 1 October The Act has been amended by the Mining Titles Registration Amendment Act, 2003 (Act No. 24 of 2003), which Act came into operation, together with the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002), on 1 May 2004 (see Proclamation No. R25 of 2004). 2. PURPOSE OF THE ACT The purpose of the Act is, inter alia, to re-regulate the registration of mineral and petroleum titles and other rights connected therewith; to effect certain amendments that are necessary to ensure consistency with the Mineral and Petroleum Resources Development Act, 2002; and to amend the Deeds Registries Act, 1937 (Act No. 47 of 1937) so as to remove the functions relating to the registration of rights to minerals from the ambit of the said Act. 3. IMPACT OF CERTAIN PROVISIONS OF ACT NO. 24 OF 2003 AND ACT NO. 28 OF 2002 ON REGISTRATION PROCEDURES IN THE DEEDS REGISTRY 3.1 REPEAL OF PROVISIONS IN ACT NO. 47 OF 1937 THAT RELATE TO THE REGISTRATION OF MINERAL RIGHTS

2 2 Although section 53 of the Act amends Act No. 47 of 1937 to the effect that no further acts of registration pertaining to mineral rights and other rights connected therewith (hereinafter referred to as mineral rights) can be effected in a deeds registry, such amendment is subject to Schedule II of Act No. 28 of 2002, which provides for a transitional period for the registration of mineral rights Transitional arrangements with regard to the registration of mineral rights During the transitional period as alluded to in paragraph 3.1 supra, acts of registration pertaining to mineral rights may be proceeded with in deeds registries, provided the said rights have not been converted or lapsed, as provided for in Schedule II of Act No. 28 of 2002 ( Schedule II ) In view of the fact that registrars of deeds will not be aware which mineral rights have lapsed, the provisions of section 4(1)(a) of Act No. 47 of 1937 must be invoked, in that conveyancers must provide a certificate to the effect that the mineral rights being dealt with, are not in the category of rights as per Schedule II that have lapsed. A conveyancer s certificate in the above-mentioned regard must read along the following lines: Identification of mineral rights in terms of Schedule II of the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002): I, *.., hereby certify that **.., held under., over.. held under.is not a right that falls within the category of rights referred to in Schedule II of Act No. 28 of 2002, that has lapsed. CONVEYANCER * Insert full name of conveyancer ** Insert type of right as defined in Schedule ll of Act No. 28 of 2002 Insert description and number of title deed Insert immovable property description Insert description and number of title deed of immovable property

3 Conversion of rights: Schedule II provides for the conversion, at the Mineral and Petroleum Titles Registration Office, of all old order rights ( rights ) including OP26 rights. Failure to convert the above-mentioned rights within the transitional period will have the effect that such rights lapse by law and will automatically be de-registered In order to convert a right the duty is on the holder of the right to lodge an application for the conversion thereof in the Mineral and Petroleum Titles Registration Office within the applicable time period A notification of an application for a conversion, as referred to in paragraph 3.3.2, must be submitted to the deeds registry concerned (miscellaneous section). A notification in the above-mentioned regard must read along the following lines: Notification of application for the conversion of a mineral right in terms of Schedule II of the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002): I, *.., hereby certify that an application has been made in terms of the provisions of Schedule II of Act No. 28 of 2002, for the conversion of **.. held under... over held under., in the Office of the Regional Manager of the Department of Minerals and Energy. CONVEYANCER * Insert full name of conveyancer ** Insert type of right as defined in Schedule II of Act No. 28 of 2002 Insert description and number of title deed Insert immovable property description Insert number of title deed of immovable property

4 On receipt of the above-mentioned notification the registrar of deeds must cause a caveat to be noted against the registers of the immovable property over which the mineral rights are registered and also against the name of the holder of the mineral rights. The caveat noted against the registers of the immovable property over which the mineral rights are registered will serve as a notice to the public of the application that has been lodged for the conversion of the mineral right. Upon the noting of a caveat in the above-mentioned regard, no further dealings with regard to the mineral rights may be registered in a deeds registry Registration and de-registration of rights: The Mineral and Petroleum Titles Registration Office must issue a notice of conversion of a right to the holder thereof upon the conversion of such right by the Minister of Minerals and Energy. A conveyancer must lodge for registration in the Mineral and Petroleum Titles Registration Office, the mineral titles of the converted right together with the notice of the conversion In order to provide for the de-registration in a deeds registry of a right to minerals that has been registered in the Mineral and Petroleum Titles Registration Office, the notice of the conversion together with the mineral titles as referred to in paragraph 3.4.1, as well as a certificate to the effect that the right has been converted, must be lodged by the conveyancer for endorsing in the deeds registry concerned (miscellaneous section). A certificate in the above-mentioned regard must read along the following lines: Conversion of mineral right in terms of Schedule II of the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002): I, *.., hereby certify that **.., held under... over ***. held under ****.., has been converted on from a Category right as referred to in Table.. of Act No. 28 of CONVEYANCER

5 5 * Insert full name of conveyancer ** Insert type of right as defined in Schedule II of Act No. 28 of 2002 Insert description and number of title deed Insert date of conversion Insert applicable Category Insert applicable Table number *** Insert immovable property description **** Insert description and title number of immovable property 3.5. Endorsement of title deeds to reflect de-registration of mineral rights in a deeds registry: Upon receipt of a notice as referred to in paragraph 3.4.2, the registrar of deeds must cause the title deeds of the relevant mineral rights to be endorsed with regard to the de-registration of the mineral rights in the deeds registry. The title deeds must be endorsed along the following lines: Endorsement in terms of section 3(1)(v) of the Deeds Registries Act, 1937 (Act No. 47 of 1937): The within-mentioned mineral right has on *.. been converted and registered in terms of the provisions of the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002), to a right registered under number.. in the Mineral and Petroleum Titles Registration Office. REGISTRAR OF DEEDS * Insert date of the conversion Insert name of right Insert registration number of right Where it is evident from the title deed of the mineral rights that the rights held thereunder are mortgaged by a mortgage bond, the office copy of such mortgage bond must be endorsed to reflect the de-registration of the mineral right. Mortgage bonds must be endorsed along the following lines:

6 6 Endorsement in terms of section 3(1)(v) of the Deeds Registries Act, 1937 (Act No. 47 of 1937): The within-mentioned mortgaged right has on *.. been converted and registered in terms of the provisions of the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002), to a right registered under number.. in the Mineral and Petroleum Titles Registration Office. REGISTRAR OF DEEDS * Insert date of the conversion Insert name of right Insert registration number of right Once the de-registration of mineral rights have been effected, no further transactions with regard to a mortgage bond that is registered over such mineral rights can be registered in a deeds registry. Transactions pertaining to such mortgage bonds must then be registered in the Mineral and Petroleum Titles Registration Office. The said office must notify the relevant deeds registry (miscellaneous section) of the cancellation (by the said office) of a mortgage bond that has been registered in the deeds registry. Upon receipt of such notification the registrar of deeds must cause the office copy of the relevant mortgage bond to be endorsed in order to reflect the cancellation thereof in the Mineral and Petroleum Titles Registration Office. Mortgage bonds must be endorsed along the following lines: Endorsement in terms of section 3(1)(v) of the Deeds Registries Act, 1937 (Act No. 47 of 1937): The within-mentioned mortgage bond has been cancelled on *.. in terms of the provisions of the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002). * Insert date of cancellation REGISTRAR OF DEEDS

7 The caveat noted against the name of the holder of the mineral right, as referred to in paragraph 3.3.4, must be removed from the deeds registry records upon the de-registration of the rights in the deeds registry. The caveat noted against the registers of the immovable property over which the mineral rights are registered must, however, remain Conditions relating to minerals rights in title deeds of immovable property: The caveat that has been noted against a title deed of immovable property concerned, as referred to in paragraph 3.3.4, must remain until such time as a transaction in respect of such immovable property is to be registered. No further transactions (mortgage bonds, etc.) must be registered over the immovable property until such time as the title deed of the immovable property has been endorsed to reflect the position with regard to the registration and de-registration of the mineral rights On a transfer of immovable property against which a caveat as referred to in paragraph has been noted, the condition relating to the reservation of mineral rights must not be carried forward as a condition in the new deed of transfer. The examiner must endorse the details with regard to the registration and de-registration of the mineral rights on the title deed of the immovable property and complete the necessary documentation in order to uplift the said caveat. The details with regard to the registration and de-registration of the mineral rights must be inserted, by the conveyancer, as a new condition in the deed of transfer of the said property. 4. Issuing of copies of title deeds to minerals: 4.1. Copies of title deeds to minerals may be issued in terms of the provisions of Regulations 66 to 68 of Act No. 47 of 1937, until such time as otherwise directed by the Department of Minerals and Energy.

8 A copy in lieu of original deeds to minerals may not be issued in instances where such title deed has been endorsed with regard to the de-registration of the mineral rights in the deeds registry. A copy of the title deed relating to the said mineral rights must then be applied for at the Mineral and Petroleum Titles Registration Office. However, copies of deeds to minerals for information and judicial purposes may still be issued after the de-registration of the mineral rights in the deeds registry. CHIEF REGISTRAR OF DEEDS 30 APRIL 2004 REFERENCE: RINGBINDER 68 A. 6/2/B, A.1/3/1/167 AND A.1/3/1/192 CHIEF REGISTRAR OF DEEDS REGISTRARS OF DEEDS THE CHIEF: JUSTICE TRAINING DIRECTOR: LAW SOCIETY OF SOUTH AFRICA MANAGER: BUTTERWORTHS PUBLICATIONS CHAIRPERSON: PROPERTY : PRETORIA : DURBAN