The following title conditions, imposed in terms of the Advertising on Roads and Ribbon Development Act, 1940 (No 21 of 1940), are sometimes encountered in the title deeds for land, close to or abutting on a provincial road, on which a township applicant wishes to establish a township:
“The property hereby transferred is subject to the following conditions imposed by the Controlling Authority under Act No 21 of 1940:
Except with the written approval of the Administrator as Controlling Authority as defined in Act 21 of 1940:
- The land shall be used for residential and agricultural purpose. The number of buildings on the land, or on any duly approved subdivision thereof, shall not exceed one residence together with such outbuildings as are ordinarily required to be used in connection therewith and such further buildings and structures as may be required for purpose of agriculture.
- No store or place of business or industry whatsoever may be opened of conducted on the land.
- No building or any structure whatsoever may be erected within a distance of 94.46 metres from the centre line of a public road.”
The nature of these title conditions
These title conditions place severe restrictions on the use of such land because it prescribes that the land shall be used for residential and agricultural purposes, limit the number of dwelling houses which can be erected, prohibit the conducting of a store or place of business and set the distance from a public road for the erection of a building or structure.
These constraints are obviously incompatible with the intended development of the land as a township and will require of the township applicant to obtain the written consent of the Controlling Authority, as defined in Act 21 of 1940, for the removal of these title conditions from the title deed for the land.
Disposal of the title conditions imposed in terms of Act 21 of 1940
The conveyancer tasked with the issuing of the conveyancer’s certificate for township establishment purposes for the land is obliged to point out that these title conditions restrict the use of the affected land, are not compatible with the proposed development of the land into a township and must be cancelled simultaneously with the opening of the township register for the proposed township.
The conditions of establishment for the township shall then, as part of the pre-proclamation conditions of establishment, indicate that the township applicant shall at its own expense cause these restrictive conditions and/or servitudes to be cancelled or the township area to be freed there from.
The Deeds Office, as part of the process to open the township register for the township, will check if this pre-proclamation condition of establishment has been complied with before allowing this township register to be opened.
Section 11(8)(a) of Act 21 of 1940
The cancellation of these title conditions requires a request or application to the Controlling Authority as defined in Act 21 of 1940 to approve the cancellation of these title conditions. This application is considered by the Controlling Authority and if successful, the Controlling Authority issues a letter to the Registrar of Deeds stating that the cancellation of these title conditions were approved and that the cancellation will take effect from the date on which the township is declared an approved township in the Provincial Gazette.
This written consent by the Controlling Authority in terms of Section 11(8)(a) of Act 21 of 1940, together with the written application by the registered owner of the land in terms of Section 11(9) of Act 21 of 1940, are then submitted to the Deeds Office as part of the batch of documents for the opening of the township register, in compliance with the specific pre-proclamation condition of establishment.
The Deeds Office then endorses the township title regarding the cancellation of these title conditions and the township is then free from these title conditions.
The Controlling Authority
The definition in Act 21 of 1940 states that the ‘Controlling Authority’ means, in relation to a road, the Administrator concerned. This meant that in the Gauteng Province the Administrator, and subsequently the Premier from 1994 until 1 July 2015, was the Controlling Authority.
The applications to get these title conditions cancelled were submitted to the Department of Economic Development of the Gauteng Provincial Government. This department considered the applications and if successful, issued a letter to the Registrar of Deeds stating that the cancellation of these title conditions were approved.
This is how this process worked until the Spatial Planning and Land Use Management Act, 2013 (No 16 of 2013) came into operation on 1 July 2015.
The Spatial Planning and Land Use Management Act, the Deeds Office and the Controlling Authority.
When the Spatial Planning and Land Use Management Act was introduced the Registrar of Deeds reasoned that Section 33(2) of this Act prescribed that where an application or authorisation is required in terms of any other legislation for related land use, such an application must also be made or such authorisation must also be requested in terms of that legislation.
|(2) Despite subsection (1), where an application or authorisation is required in terms of any other legislation for a related land use, such application must also be made or such authorisation must also be requested in terms of that legislation|
Paragraph 11.1 in Registrar’s Circular No 3 of 2016 of the Pretoria Deeds Office states that, apart from the consent of the relevant municipality, the consent of the Controlling Authority as defined in Act 21 of 1940 had to be obtained too and submitted for the cancellation of title conditions imposed in terms of this Act.
This worked well until the Department of Economic Development of the Gauteng Provincial Government ceased processing the applications for the cancellation of title conditions imposed in terms of Act 21 of 1940. The department determined that it could no longer fulfil the functions of the Controlling Authority, as these functions passed on in terms of Section 45(6) of the Spatial Planning and Land Use Management Act to the municipality in whose jurisdiction area the specific land was situated.
|(6) Where a condition of title, a condition of establishment of a township or an existing scheme provides for a purpose with the consent or approval of the administrator, a Premier, the township board or any controlling authority, such consent may be granted by the municipality and such reference to the administrator, A Premier, the townships board or controlling authority is deemed to be a reference to the municipality.|
Between a rock and a hard place
Despite the Department of Economic Development of the Gauteng Provincial Government terminating the processing of applications for the cancellation of title conditions imposed in terms of Act 21 of 1940 the Deeds Office still insisted that the consent or authorisation by the municipality on its own was not sufficient, and the consent or authorisation by the Gauteng Provincial Government was also required before noting the cancellation of these title conditions against the title deed for the land.
This made life impossible for the conveyancers, not to speak of the township applicants, because it was impossible to obtain a consent or authorisation by the Gauteng Provincial Government for the cancellation of these title conditions. This delayed the opening of township registers and the subsequent unlocking of value in the land with the transfer of the stands and other properties in such township.
The professional and courteous relationship between the officials at the Deeds Office and the conveyancers who engage with each other daily is held in high esteem by all these parties. Sometimes vigorous engagements in pursuit of clarity on issues occur because there is so much at stake for the private sector. In the end, when the matter is resolved, the parties find contentment in the outcome that such issue is no longer clouded in uncertainty.
In this case the solution to the problem was found when a township applicant decided to approach the court to rule on who the Controlling Officer is who is authorised to consent to the cancellation of title conditions imposed in terms of Act 21 of 1940.
The Gauteng Division of the High Court in Riversands Developments Pty Ltd v Registrar of Deeds Pretoria, and others Case No 55768/2020 found on 3 November 2020 that the powers and functions of the “Controlling Authority” in terms of Section 11(8)(a) of the Advertising on Roads and Ribbon Development Act, 1940 (No 21 of 1940) have devolved upon and been assigned to the municipality. The consent by the municipality to the cancellation of these title conditions are consequently sufficient for the cancellation of these title conditions and no consent was required from the Gauteng Provincial Government.
The Registrar of Deeds in Pretoria, satisfied that the uncertainty about the identity of the Controlling Authority was dispelled by the court, issued Registrar’s Circular 3 of 2020 on 12 November 2020, confirming that the consent of the municipality is sufficient to note the cancellation of title conditions imposed in terms of Act 21 of 1940.
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