Client case studies – Tenure Support Centre

Subsidy delays: The challenges of government housing subsidy administration

Part of the TSC’s core purpose is to document the experiences of lower-income households as they navigate the formal property market system in South Africa, including their experiences with government housing subsidy programmes. In some ways, the experience of our clients in the subsidy space is not typical as the TSC team shoulders much of the administrative burden. As a result, our team has first-hand experience of the processes and systems that underpin the administration of the Individual and FLISP^{^[1]} housing subsidies.

Two common challenges relate to the issuing the Letters of Undertaking and delayed subsidy disbursements.

The challenge with the Letters of Undertaking is simple human error. The TSC has seen a number of cases where these letters are issued with the incorrect subsidy value, issued to the wrong conveyancing firm or other incorrect party, or issued with incorrect property / location details. It is an administrative nightmare to get these Letters of Undertaking amended and these errors cause significant delays to the transfer process.

The second issue is with delayed subsidy disbursements. In the TSC’s experience, it takes anywhere from five weeks to three months for the subsidy money to be paid to the receiving party, be that the bank who is financing the house or the sellers who are waiting for their money (see figure 1 below). This same issue was flagged in an external evaluation of the FLISP subsidy^[2] commissioned by the National Department of Human Settlements in 2021 , although little appears to have changed since then.

In cases where there are individual sellers who are expecting to receive subsidy funds as part or whole payment for the sale, this delay creates incredible frustration and stress. They have sold their property, their names are no longer on the title deed, they’ve most likely vacated the property and handed over the keys, but they do not have the money owed to them due to poor government administration. This is inexcusable.

To say that these delays detract from what is otherwise a helpful subsidy programme would be a great understatement. Delays create a poor perception of the subsidy programme and undermine trust in the formal system. Sellers and estate agents who have been party to subsidy financed transactions are unlikely to recommend the FLISP subsidy to others. In the TSC’s experience, sellers will increasingly simply not entertain a subsidised sale because of the lengthy delays in the process, so while a purchaser may qualify for a subsidy, he or she cannot actually access that subsidy because of an inability to find a willing seller.

The good news is that these should not be difficult problems to solve. The subsidy application process is already partly digitised and could be further streamlined. This would offer transparency to all parties involved, could help drive accountability and reduce human error in the process. The Department should also be able to schedule weekly if not daily payment runs for subsidy disbursements, aligned with transfers that have been finalised in the preceding time period.

Perhaps the barrier to change arises on the side of officials. They may lack incentives to create a subsidy process that is efficient and responsive. They may also be unaware of the impact of poor administration – they are not personally receiving the phone calls from irate sellers who cannot understand why it is taking so long for them to receive their money, or placating the buyer whose bond statement doesn’t reflect the subsidy money they are expecting.

To quote the World Bank, ‘any policy is only as good as its implementation’, and as highlighted in this blog, there are clear but resolvable implementation failures in the Individual and FLISP housing subsidy programmes that require attention. Until these seemingly small but significant issues are resolved, government housing subsidy programmes will continue to underperform on client experience, no matter how many times they’re given an external facelift.

[1] Recently rebranded to the ‘Help me Buy a home’ programme

[2] “With regards to payments, the NHFC and some Provinces should be able to pay within five (5) working days after a request for payment has been made by the attorneys but in many cases this process can take months according to some banks, resulting in offers for mortgage finance being cancelled.” Final Evaluation Report for the Implementation Evaluation of the Finance Linked Individual Subsidy Programme (FLISP). December 2021. Accessible: https://www.dhs.gov.za/sites/default/files/u16/REPORT%20FLISP.pdf

Dead capital: How inefficient and unaffordable deceased estate processes compromise title

The most common type of case we deal with at the Tenure Support Centre (TSC) is deceased estate transfers. In most instances, the estate is small, valued at less than R250 000^{^[1]}. It is a relatively simple process to wind up these estates subject of course to everything going smoothly at the Masters Office. Aside from the transfer costs, there are no additional estate administration fees. However, if the estate is a large estate, it is quite a different matter. Due to rising property prices in areas like Khayelitsha, more estates are crossing this value threshold. On the one hand, if the heirs intend to sell the property, higher property values are advantageous. On the other hand, if heirs have no intention to sell, which is often the case, the cost of winding up the estate and transferring the property into the names of the heirs becomes prohibitively expensive. The process is also long and laborious.

According to data published by Property24, the average selling price of properties in Khayelitsha increased from R195 000 in 2019 to R250 000 in 2022.

Source: Property24 Trends data – Khayelitsha

Estates valued above R250 000 require administration by an attorney or other professional, who can charge up to 3.5% of the gross estate value plus VAT to wind up the estate. For a R250 000 property, this amounts to R8 750 plus VAT. In addition, clients must pay for advertising costs^{^[2]} as well as Masters fees^{^[3]}, totaling approximately R2 000. On top of this they must pay a conveyancer for the property transfer once the estate is finalised. Transfer fees for a R250 000 property can easily amount to R12 500 (including VAT and disbursements), bringing the total cost of the process to approximately R24 500. This is simply unaffordable for many people who stand to inherit properties in this market.

Mrs M*’s experience offers a useful case study. Mrs M is a carer at an old age home in Cape Town. Her husband initially approached the TSC in April 2019 for assistance with amending the title deed for his 160 square metre property located in Makhaza, Khayelitsha, which he received from the government in 1997. He wanted to remove his ex-wife in accordance with their divorce order and add his current wife, Mrs M.

Unfortunately, just two months later, Mr M passed away. The TSC was then tasked with guiding Mrs M through the process of winding up her husband’s estate and transferring the property into her name. Because the property was valued at R272 000, the estate was a large estate and Mrs M did not have upwards of R20 000 to fund the process.

The TSC was able to negotiate a 20% discount on the statutory 3.5% estate fee with a willing attorney. However, the cost of R9 500 (R7 500 in estate fees plus R2 000 for advertising costs and Masters fees) was still high for our client. On her monthly salary of R3 800 (net), it would take her several months to save the required funds.

Initially, Mrs M believed a local Khayelitsha-based attorney might provide more affordable assistance. They told her they would charge her R4 500 for the estate process. But after she took them her file, they revised their fee to R15 000 for the estate process and a further R7 000 for the transfer. Mrs M came back to the TSC and asked us to proceed with her case.

By October 2019, the TSC had appointed an attorney for Mrs M and assisted in reporting the estate at the Masters Office. In total it took 3 years and 6 months to wind up the estate and effect transfer of the property to Mrs M. The case was delayed because of several factors, some of which are hopefully behind us. The Master’s Office with its laborious paper-based process was slower than usual because of COVID-19 related closures. In addition, the pro bono capacity of conveyancers was limited. It also took time for Mrs M to accumulate the necessary funds. Needless to say, everyone breathed a sigh of relief when she finally received her title deed in May 2023.

In the end Mrs M paid just over R14 000 for the estate administration and property transfer. This equates to approximately 5% of the property value and almost four times her monthly salary. While this is high, it is significantly lower than what she would have paid. Without the involvement of the TSC, Mrs M would have had to pay nearly double this amount and most likely would have been forced to abandon the process altogether.

The table below provides a breakdown of these costs. There are no professional conveyancing fees as the TSC’s partner conveyancing firm STBB provides their services pro bono. Mrs M’s costs also included an amount of R2 445 to settle an outstanding municipal bill paid to the City of Cape Town.

The TSC’s experience with cases similar to Mrs M’s prompted us to ask the Department of Justice to review the Small Estates Threshold (which was last adjusted in 2014). Sadly, they said no. We have therefore taken on the estate administration process internally to reduce costs. We are happy to report that this does not impose a significant burden in time or staff costs, particularly now that we are familiar with the process. Since the property is typically the only asset in the estate, estate administration becomes relatively straightforward.

To date, the TSC has handled the administration of five large estates internally without assistance from an outside attorney, gaining valuable insights and lessons along the way, and meeting our objective of making formal, legal processes affordable and accessible to those who need them. Had Mrs M approached the TSC today, she would not have had to pay R7 500 to an attorney, cutting her costs by half.

While we have managed to reduce costs for clients, sadly we cannot improve the inefficient processes associated with administering large estates at the Master’s Office. The length of time taken to wind up this large estate (three years and six months) is simply unacceptable given this very simple estate of only one asset and no liabilities. And this case is not an exception – we have had similar experiences with other large simple large estates.

South Africa’s inefficient, paper-based estate system may be well designed for load-shedding, but it is a relic of a long-gone analogue age and is no longer fit for purpose.

It should be entirely feasible to digitize and automate many underlying processes. These are sensible, easy to navigate and designed to protect heirs. In addition, the legislation is clear on intestacy. It is therefore relatively straightforward to ascertain who should end up with the property. Simple estates, comprising of a single asset (a subsidy house) should cost little to wind up and should take months at most, not years.

We live in hope.

^[1] The small estates threshold is set by the Department of Justice and Constitutional Justice and was last reviewed in 2014

[2] The Administration of Estates Act requires two rounds of advertisement. The first advert calls for creditors to the estate to lodge their claim and the second advert calls for any interested parties to examine the Liquidation and Distribution Account at the Master’s Office. Both adverts need to be published in a newspaper circulating in the area where the deceased resided as well as in the Government Gazette. Each advert usually costs R500.

[3] Masters fees are charged on a sliding scale based on the value of a property, starting at R600.

Simphiwe’s deceased estate transfer: Case timelines and key milestones

A standard question we get at the TSC is: How long does it take you to resolve a case? Our standard answer is: “it depends on the case”. Various factors contribute to the duration of a case, including its complexity, the length of time required for administrative processes such as those managed by the Masters Office, and the responsiveness of our clients, including the speed at which they and other parties involved can sign necessary documents.

To illustrate this, we’ve mapped out the timeline and key milestones for a deceased estate transfer case that the TSC has recently resolved. You can read the background to Simphiwe’s case here.

The case initially seems to be a straightforward deceased estate transfer of one property. It turned into a significantly more complicated case as the estate actually included two properties.

Simphiwe, the client who approached the TSC for assistance, did not mention the second property. He did not consider it to be his – his niece was living in the property and he regarded the property as belonging to her.

Once the conveyancers established that the deceased owned a second property, the TSC had to re-start the reporting process at the Masters Office. This property would be included in the estate and transferred to the client. He would then donate the second property to his niece.

This particular case was on the TSC’s books for almost 21 months, with almost eight months of that waiting on information from the Masters Office in order to proceed.

Ending a 20-year battle to get a title deed

Simphiwe is looking forward to building a formal subsidy house through the People’s Housing Process (PHP) after the Tenure Support Center (TSC) helped him get a title deed for his property in Site B, Khayelitsha.

“I’m waiting for the PHP chairperson to ask me to dismantle my shack to make way for an RDP house,” he said.

Simphiwe lives off his disability grant after a car accident in Langeberg near Koeberg left him unable to work. He stays with his wife in a dilapidated shack that is prone to leaking and becomes uncomfortably cold during the winter months. His property used to belong to his mother who was allocated a serviced site. She received the title deed for the land from Government in 1999, just a few months before she passed away.

“To register with the PHP, I was required to produce a title deed first. Housing officials said I could not apply for an RDP house while the property was still registered in my mother’s name. They advised me to consult lawyers,” Simphiwe described.

Simphiwe, being his mother’s only surviving heir, was entitled to take transfer of the property following her death, but he struggled to do so due to the costs involved. However, thanks to the help he received from the TSC, Simphiwe recently took transfer of the property.

“No one could help me until I met a PHP chairperson who introduced me to the TSC,” Simphiwe said.

He first went to lawyers in Plein Street in Cape Town to ask them to register his mother’s property in his name. They told him he must pay R3 000 first and then R5 000 at a later stage. Simphiwe simply could not afford that amount.

“I could not give them my whole disability grant, otherwise I would be left without money for food. They said they could not help me if I could not afford to pay them,” Simphiwe told us.

Another lawyer said he would have to pay R13 000 for the transfer. ”When I asked him if he didn’t give a discount to people with disabilities, he said no.”

Simphiwe did not have to pay to get his title deed through the TSC; the TSC provided access to free legal services through its partner STBB. Because Simphiwe is indigent, the TSC paid for out of pocket expenses of R1 300.

Simphiwe described his joy when he eventually received transfer of the property through the TSC. “I went down on my knees and thanked God for what He did for me. I feel happy because my life will change. I will move out of my shack and stay in an RDP house in the near future.”

“I battled a lot to get the title deed. When I finally got it, it was like a weight had been lifted off my shoulders.”

He is pleased with the way TSC staff handled his title deed issue from start to finish, he said. “I’m already recommending TSC to other residents who are looking for title deeds.”

Vincent’s RDP story – a tale of informal property transactions

Vincent is a journalist who we’ve worked with recently to document some of our client case studies. In a recent conversation he mentioned his own experience of buying and selling a property informally which we asked him to write about. Vincent’s story echoes that of many of our TSC clients and demonstrates how and why informal transactions of RDP properties took place in the past, and continue to take place to this day. Perhaps most importantly his story reflects the risks buyers carry when engaging in informal transactions as evidenced by the length of time it took him to resell the house and the fact that many potential buyers became uninterested as soon as they found out he didn’t have the title deed. Here is his story from his own perspective.

I worked as a Senior Communications Officer on a contractual basis at the Western Cape Department of Transport and Public Works until November 2008. After my contract expired, I feared that I would not be able to continue to stay at Hibiscus in Brackenfell, where I rented a flat. Accordingly, I put up notices on spaza shops that said I wanted to buy an RDP house in Wallacedene. An RDP house owner saw the notice and phoned me to say he was selling his house for R24 000.00.

When we met, he showed me an RDP house which was still under construction but about to be completed. I moved into the house on May 26, 2009 and paid him his money in the presence of his wife, an area committee and a local businessman, who had transported me to the Bank in Tygervalley to withdraw the money.

I took down the names of the committee members and gave them money to buy a ‘cool drink’, witness and approve the sale. It was a standard practice to ask community leaders to witness such house sales.

Buying an RDP house without involving community leaders meant that no one would stand up for the buyer when the owner returns to claim his or her house. The community leaders asked him to confirm to them that he was indeed selling the house to me, and he did so. The committee counted the money and handed it to him.

The house owner gave me his ID, his wife’s ID and a letter that confirmed that the house belonged to him and his wife. I believed that these documents served the same purpose as a title deed and a proof that I got the house from its owner.

I was happy that I had my own place, and that I would no longer have to pay rent because I was unemployed.

The inside of the house and windows still needed to be painted and varnished. Construction workers, painters and other workers often came into the house to put final touches here and there.

I paid a professional electrician to wire the house, a welder to fit the house with burglar doors and burglar windows and a handyman to tile the floor. I also hired a local plumber to link my water pipes to underground municipal water pipes so I could get water inside the house.

I always feared that the owner might come back, reclaim the house and refund me. However, I drew comfort from the fact that he was unemployed and as such would battle to raise R24 000 and repay me.

There were rumours that the government might evict me because I moved in before the house was officially handed over to the owner. Some residents said government officials would visit each new RDP house just before the official handover to check if its occupants were legitimate owners. These rumours worried me.

I asked two lawyers how I could transfer the house to my name, and they both said I could only do so after five years or so. Even after such a period, I would have battled to register the house in my name because the owner was no longer staying in the Western Cape.

I ran out of my savings and started to do freelance work for newspapers such as the Daily Sun, Daily Voice and The Cape Argus. I battled to get stories to sell to newspapers in Wallacedene.

Consequently, I made a decision in 2011 to sell the house and relocate to Khayelitsha. I put up notices that said I was selling the house on local taverns and spaza shops, and people came to view it.

Most of them wanted to buy the house but changed their minds as soon as I said I didn’t have a title deed.

One potential buyer said: “Buying a house without getting a title deed is like throwing your money into the sea because the owner may return and reclaim the house.”

Since I had no title deed, I battled to find a buyer until 2014, when I told a local restaurant owner that I was selling the house. He knew me very well because I frequented his Tshisanyama to listen to music, eat and have fun. Also, he trusted me because I published some stories about his skirmishes with the police who initially deemed his restaurant illegal.

The restaurant owner said he wanted to relocate his neighbour to my house because he needed more space as he was expanding his business place. Also, he wanted to move his neighbour elsewhere because she often complained about the noise from his restaurant.

I sold the RDP house to him for R75 000, which was the standard price for RDP houses in Wallacedene then. On 26 May 2014 he initially deposited R50 000 into my bank account and subsequently paid the remainder in June. He personally organised a truck and youths to load my belongings and drove me to Khayelitsha, where I rented an RDP house. We never bothered to get people to act as witnesses because we knew and trusted each other. We continued to meet and chat after the sale until he unfortunately passed away due to Covid in 2020.

Vincent does not know who is currently living in the house. However, based on records the TSC could access, it appears that the house was formally registered in the original beneficiary’s name in 2010, after Vincent had already purchased the property informally. It is not clear what, if any, validation process the City followed to validate ownership prior to transfer.

The current off-register owner faces the risk that the registered owner/s could try to claim the property. As evidenced in other cases, local community structures can be effective in discouraging this. But it is by no means that case that off-register owners face no risks. In addition, like Vincent they might find it difficult to sell the house without a title deed. They also cannot use their property to access finance and may not be able to engage with the City as recognised property owners.

Where the off-register owner wants to formalise ownership, he or she can attempt to contact the registered owner(s) and regularise the sale retrospectively. The TSC has helped several clients formalise past informal cash sales. There are two critical success factors: (1) the registered owner needs to be contactable and (2) the registered owner needs to agree to participate in the process.

In some cases where the registered owner is contactable and agrees to participate, he or she will request more money from the buyer. The latter scenario is the risk buyers face when approaching sellers to regularise a past sale. However, when this happens, the two parties reach an agreement and the sale proceeds, often with the off-register owner paying over additional funds.

Some researchers maintain that poor households do not care whether they have a title deed. No doubt in some cases they are right. But the clients who approach the TSC are acutely aware of the importance of a title deed and make a real effort to secure it. Many succeed only because of the assistance of the TSC and its conveyancing partner STBB, who does the conveyancing work on a pro bono basis.

Unwinding informal cash sales and unlocking security of tenure

This is the story of Ms Duma (not her real name) and her experience of buying a house through informal channels and having to defend her purchase when the seller came back to claim the property. Ms Duma is one of the TSC’s many successful informal cash sale regularisation case studies. Her story illustrates the very real risks buyers face when property transactions are not formally registered but also how informal mechanisms such as street committee letters, police affidavits and witnesses can work to validate a buyers claim to a property. Her story further reiterates the value that is unlocked when informal cash sales are regularised.

Ward councillor Lucky Mbiza says many residents don’t have title deeds for their houses and properties in ward 96, Khayelitsha.

“The majority of the residents in my ward don’t have title deeds. It’s a nightmare,” he said.

Mbiza said: “Residents sell their properties and go back to their home provinces without transferring their title deeds to the new owners.”

The original owners of the properties sometimes return to reclaim them, he said.
Mbiza said: “In one instance a father died and his family sold their house so they could get money to bury him.”

“Family members who were kids then are now adults, and they are trying to evict the family that bought the house,” he said.

Vuyiseka Duma*, who owns a property in Makhaza, Khayelitsha, said she went through a similar experience. When she bought it, the property did not have a house on it – it was just a shack which was in a bad-shape. Still, she knew that this would be the place where she could build her home.

“I bought the property from the wife of the former owner who was living in Johannesburg at the time. He was aware of the sale, his wife was acting as the intermediary and three people who also lived in the area acted as witnesses”, she said.

Duma estimates that she has spent close to R30 000 to date on fixing up the property. “I fenced the yard, put a new roof on the shack, tiled and cemented the floor, put in new doors and a ceiling to make it liveable and comfortable”, she says.

But one day the former property owner arrived at her door with “a tall and bulky man” and tried to intimidate her to leave the property.

“They said the property still belonged to the former owner and that I must exchange properties with him and go live in his shack in Site C”, she says. But she refused, reminding the former owner about the police affidavit that was signed as well as the people who acted as witness to the sale.

“They left me feeling stressed out,” she said, “but now I feel comfortable and happy because I have the title deed.”

Duma told how the Tenure Support Center (TSC) helped to regularise the transaction with the former owner and get her the title deed for the property.

“I told TSC staff that I had bought a property in 2003, but I had no money to hire a lawyer to transfer the title deed to me,” she said.

The TSC is a non-profit project that helps low-income residents resolve their title deed challenges.

Duma said TSC staff told her that she would need to sign a new sale agreement with the former owner and obtain his co-operation in the process. Fortunately, he agreed.

Duma explained why getting the title deed mattered so much to her. “Now that I have the title deed, the former owner or his children can’t come back and lay claim to the property,” she said.

Duma, who stays with her sisters along with their kids, said the title deed would help her qualify for an RDP house subsidy when the government allocates RDP houses to residents in her area. “My sisters and their kids will have a place they can call their own when I die,” she said.

She also said that is getting ready to register with a local Peoples Housing Project that will help her get an RDP house on the land she now owns. “I would not be able to join a PHP without the title deed,” she said.

Duma said she recommends the TSC to her friends when they want to be assisted with acquiring a title deed.

“Because the TSC helped me get a title deed, I always refer people who have properties that are not registered in their names to it,” she said.

*Not her real name

When love is blind

Phelisa is a 37-year-old single female, who approached the TSC in October 2020 for assistance with a deceased estate.

For the first 16 years of her life Phelisa was the only child of an unmarried mother. Her mother received a serviced site in Khayelitsha from the government in 1997 and a few years later a subsidy was approved for a top structure. Phelisa and her mother lived in the house for over a decade, during which time Mr M entered the picture.

Mr M, also the recipient of a subsidised property, lived next door to Phelisa and her mother. A romance developed between the neighbours. They had a child together, and when Phelisa was 25 years old, they eventually married. The new family of father, mother, daughter and son lived together in the neighbouring properties until Phelisa’s mother passed away in 2018, followed shortly thereafter by Mr M in 2020. Neither left a will.

In the minds of Phelisa and her half-brother, it was obvious what should happen to these two properties: Phelisa should keep the property that was her mother’s before she met Mr M, while her half-brother should keep the next-door property that was his father’s prior to the marriage. Had Mr and Mrs M obtained prudent legal advice about providing for their heirs and executed wills, this may well have been the outcome. But herein lie the perils of dying intestate – because there was no will the siblings face a laborious and expensive process to obtain ownership of their respective properties.

The moment the neighbours married (a marriage in community of property), both properties became assets in a joint estate with each spouse effectively acquiring half of the other spouse’s property from date of marriage, regardless of the fact that their names were never formally added to the title deeds. Phelisa’s mother’s property is valued at R244 000, while her husband’s is valued at R382 000. The value of joint estate is therefore R626 000, and the value of each spouse’s estate prior to their deaths (assuming there are no other assets) is R313 000.

Figure 1: The joint estate

Phelisa took the initiative when her mother passed away to report the estate at the Masters Office. Blissfully unaware of the implications of marriages in community of property, she only reported her mother’s property valued at R244 000. She should, in fact, have reported her mother’s half share in the combined estate, which is valued at R313 000. While this might seem somewhat inconsequential, it is, in fact material. The small estates threshold as set out in S18(3) of the Administration of Estates Act is R250 000. Estates below this threshold can be wound up by way of a less expensive process in which the Master of the High Court can issue a letter of authority, allowing an appointed representative to administer the estate. Once a Masters Representative is appointed, it is simple to transfer a property to heirs without there having to be a formal winding up of that estate. In contrast, estates valued above the R250 000 threshold must follow a formal winding up process, which carries a hefty fee of 3.5% of the estate value as well as a laborious process through the Masters Office that will take months, if not years, to complete. In the case of Phelisa’s mother’s estate, the fee would be R12 500.

A further complication with this estate arises because neither Phelisa’s mother or her step-father had a will. While in the minds of Phelisa and her brother, the mother’s property should go to Phelisa, this is not what the law says. The valid intestate heirs of Phelisa’s mother are Phelisa, her half-brother and Mr M. Because Mr M was the surviving spouse, in line with the laws of intestate succession he or his estate would get the first R250 000 of Phelisa’s mother’s estate with the remaining R63 000 split equally between Phelisa and her half-brother. The net effect is that rather than receiving a property valued at R244 000, Phelisa receives R31 500, less her share of the expenses associated with winding up the estate.

Beyond this, Mr M’s estate also falls over the S18(3) threshold and must too be formally wound up, incurring a further fee of 3.5% of Mr M’s estate – approximately R22 500 – and another laborious and slow process through the Masters Office.

Process aside, the only valid intestate heir of Mr M is Phelisa’s half-brother (Phelisa is not Mr M’s biological child), meaning he is the only person entitled to inherit Mr M’s estate, comprising both properties to the value of R563 000 (R313 000 from Mr M’s half-share in the joint estate and the R250 000 he inherited from his wife’s estate).

Phelisa must now rely solely on the kindness of her half-brother to make good by her – a precarious position for someone who has lived in a property for over 20 years and who assumed the property would be hers one day.

Figure 2: Winding up the estates

What is the lesson in this story? Dying intestate can be a nightmare for the heirs left behind, who must try to both navigate the complexities of the Masters Office (an infinitely more complex process where there is no will) and come up with the funds to wind up a deceased estate and secure ownership of a property. A will can help avoid many of these problems and, critically, ensure that the intended wishes of the deceased as to who should inherit his / her estate are upheld.

While it is not common practice in many areas for people to have wills, a number of TSC clients have requested assistance in drafting a will. Still, many are not aware of the ramifications for heirs of dying intestate. A lot more work needs to be done to shift mindsets about the importance of having a will and to enable property owners who want to draft a will to do so.

Authors: Lisa Hutsebaut & Illana Melzer

Persistently inefficient

Ms. D, a 54 year old domestic worker, first approached the Transaction Support Centre in August 2019 asking for assistance with correcting errors on her title deed – both her surname and date of birth were incorrect. The client received the property from Government in 1992, pre-democracy. It is unclear what identity document the conveyancer used at the time to prepare the transfer; the client would have likely only received a green bar-coded Identity document post-1994. Regardless, the title deed needed correction as, in its current format, the client would not be able to legally sell, transfer or leverage her property for finance due to the errors.

As per Section 4(1)(b) of the Deeds Registry Act, 47 of 1937, the Registrar “may correct an error in registration in any deed or document registered or filed in a deeds registry pertaining to: the name or the description of any person; the name or description of any property; conditions affecting such property.” [1] The application must be brought to the Deeds Office by a conveyancer acting on behalf of the client, and documentary proof of the “true state of affairs” must be provided. This is where Ms. D’s 18-month process with the Deeds Office and Home Affairs started.

The journey

The full process is outlined step-by-step in the illustration below. But, in summary, Ms. D’s application was rejected twice by the Deeds Office (DO), first because the DO wanted an unabridged birth certificate as means of proof of the client’s actual surname and date of birth. When this was received, after two separate trips to Home Affairs and a three-month wait, the conveyancer lodged a second application to the Deeds Office. This was rejected again, this time because the DO wanted to see a vault copy of the client’s birth certificate as means of proof that her personal details had changed. In July 2020, the client eventually managed to make the trip back to Home Affairs after the lockdown to apply for the vault copy. The application was submitted and she was told to wait another three months. By October 2020 when the client went to follow up on her application, she was told that vault copies still need to be requested from Pretoria. Probably in an attempt to ease the client’s distress, the Home Affairs clerk gave Ms. D another unabridged birth certificate and sent her on her way. Not one to back down, Ms. D made a fifth trip back to Home Affairs in December 2020 to follow up on the vault copy only to be told that she is in fact “too old to have a vault copy”, and that “the Deeds Office should not be looking to Home Affairs to remedy their mistakes”.

Finding resolution

At this point the TSC in consultation with our conveyancers decided that the only way to find resolution was for the conveyancer to meet with the Deeds Office examiner in-person to set out the client’s full case history and determine a way forward. Fortunately, this was successful and the Deeds Office agreed to accept the client’s unabridged birth certificate as means of proof.

After a long and convoluted 18-month process consisting of two S4(1)(b) applications by conveyancers, two Deeds Office rejections, and five separate trips to Home Affairs costing the client R22 each time in taxi fares, and one unnecessary vault copy application costing the client R75 (not an insignificant cost considering her total monthly income is R1,200), Ms. D received confirmation that her application was registered in March 2020. Finally, she would have a title deed with her correct details on it.

This case highlights the lack of synergies between Home Affairs and the Deeds Office, as well as the rather outstanding inefficiency of Home Affairs, and the resulting impact this has on indigent clients. Ms. D was ‘fortunate’ that she had the time and flexibility to do several trips to Home Affairs, but this is because she is only employed two days of the week. If she had full-time employment no doubt she would have had to take a day off work each time she needed to go back. Imagine how much more this process would have cost her then?

Going forward

While the TSC is grateful that it was able to resolve this particular case, there is clearly a need to drive systemic change within key administrative departments like the Deeds Office and Home Affairs. Improved digitisation and streamlining of processes and systems can help, but recognition of the weaknesses and flaws and a commitment to fixing them is also needed from the Departments’ leadership. As a start we hope to drive this by engaging directly with the Deeds Office for critically needed guidelines as to exactly what documentation would suffice in these circumstances. At present this is completely discretionary. Some clarity in this regard would go a long way in alleviating the evidentiary burden on indigent clients.

Authors: Lisa Hutsebaut & Jessica Breier

References

[1] LexisDigest. Involved intricacies. 25 August 2011. Available: https://www.ghostdigest.com/articles/involved-intricacies/53898