Challenging the commencement of the Deeds Registries Act 2015
Bank Windhoek Limited and Minister of Agriculture, Water and Land reform, Registrar of Deeds, The Attorney General
Dr Weder, Kauta & Hoveka
Inc brought an urgent application on behalf of Bank Windhoek Limited to the
High Court on 07 June 2021, asking for the commencement of the Deeds Registries
Act 2015 and its supplementary Regulations to be set aside. This was granted
and thereby the old Deeds Registries Act of 1937 has been retained.
The Application was
especially urgent due to the fact that Banking Institutions have been allocated
BC numbers by filing mortgage bonds. Such BC numbers are included in numerous
mortgage bonds and agreements. However, as the BC numbers were filed based on ultra vires Regulations, this creates
risk for mortgagees including Bank Windhoek Limited, as mortgagors could raise bona fide defences based on such
mortgage bonds. In other words, the invalid Regulations could mean that
mortgagors avoid their obligations secured by mortgage bonds. Consequently, the
ultra vires conduct in implementing
the aforementioned Act and Regulations, means that real and limited real rights
are being registered that create risks for the public.
The Deeds Registries Act,
2015, was passed by the Parliament in 2015 and as a result published in the
Government Gazette No.5913 of 31 December 2015. The commencement of this aforementioned
Act would have repealed the Deeds Registries Act, 1937, as well as the
Registration of Deeds in Rehoboth Act, 1976.
Whilst the Minister on the
recommendation of the Regulations Board was permitted to make regulations
according to section 93(1) of the Deeds Registries Act, 2015, certain
requirements had to be complied with to do so. These included that the Act and
Regulations be commenced on the appropriate date. The Minister decided for the Regulations
to commence as soon as they were published in the Gazette, which was 23 of
According to section 93(2) of
the Deeds Registries Act, 2015, the Regulations may not commence less than 30
days after the publication of the aforementioned regulations in the Gazette. The
Primary Legislation imposes this obligation on the Minister and therefore, the
Act and Regulations should have commenced earliest on 23 May 2021 instead of 23
April 2021 when it was published in the Gazette, for section 93(2) to be
complied with. Hence, the Minister erred in publishing in the Gazette and
commencing the Regulations on the exact same day.
In addition to the
requirement of commencing regulations at least 30 days from the publication
date thereof in the Gazette, a Regulations Board should have been established
as the Act 2015, requires certain persons to be appointed, including a
conveyancer nominated by the Law Society. This matter of compliance is still
subject to legal scrutiny.
To conclude, it is evident
that the judgment brought about a win for the rule of law and for legal
certainty, as envisaged by the Namibian Constitution.