January / February 2020 – Discussing SPLUMA: Part 2

2020-01-23T09:50:04+00:00December 12th, 2019|Legal Matters|

This is the second part of the series ‘Discussing SPLUMA’, this time focusing on engagement with the Deeds Office.

Gert Minnaar

Gert Minnaar

By Gert Minnaar

If you missed part 1 click here

THE FIRST ENGAGEMENT WITH THE DEEDS OFFICE

The conveyancers lodged the conveyancing documents for this scheme on 11 August 2017 at the Deeds Office for the first time, but were met with disappointment when the examiners raised a note requesting the submission of a certificate issued by the municipality in terms of section 53 of SPLUMA before this sectional title register may be opened.

At first the conveyancers argued that because this sectional title scheme was developed on an erf in a township established and formalised in terms of the Town Planning and Townships Ordinance, 1965 (Ordinance 25 of 1965) that SPLUMA did not find application. The longstanding arrangements and procedures for the opening of sectional title registers which were enforced for buildings on erven in townships established in terms of the Town Planning and Townships Ordinance, 1965 (Ordinance 25 of 1965) remained in place and thus had to be adhered to.

This explanation was not received with much enthusiasm by the examiners and the note requiring the said section 53 SPLUMA certificate stood. Did this section now suddenly turn into a riddle, wrapped in a mystery, inside an enigma?

THE SECOND ENGAGEMENT WITH THE DEEDS OFFICE

After regrouping, the conveyancers relodged the conveyancing documents responding to examiners’ notes with a reference to section 41(2) of SPLUMA pointing out that the term sectional title development scheme does not appear in it at all, and that consequently it is not necessary to submit a Section 53 SPLUMA certificate with the opening of the sectional title register for this building constructed on an erf in a township established in terms of the Town Planning and Townships Ordinance, 1965 (Ordinance 25 of 1965).

Alas, it was not only the conveyancers who regrouped because a new note was raised by the examiners at the Deeds Office this time round requesting compliance with Section 53 of the City of Johannesburg: Municipal Planning By-Law, 2016:

Section 53. Sectional Title Schemes
Notwithstanding the provisions of this By-law, the Registrar shall not register a sectional title scheme on any property unless the City has confirmed in writing that there has been compliance with this By-law, the City’s land use scheme and/or any other planning legislation that might still be in operation and applicable to the property in question.”

THE THIRD AND FINAL ENGAGEMENTS WITH THE DEEDS OFFICE

Fortunately, in their efforts to ensure the opening of the sectional title register for the ERF 1258 sectional title development scheme the conveyancers already prudently implemented Plan B, which required of the implementing agent of the municipality to apply for a certificate in terms of Section 53 of the City of Johannesburg: Municipal Planning By-Law, 2016 for this scheme.

This application was submitted on 29 August 2018 and the Department of Development Planning of the municipality issued this Section 53 certificate, together with two copies of the sectional plans which the Surveyor general already approved on 3 July 2017, endorsed to indicate that these plans were now also approved by the municipality on 6 June 2019.

Discussing SPLUMA: Part 2

ERF 1258 Pennyville Extention 1 Section Title scheme: “ERF 1258” (REF NO 05/3085/20108)

The wording of the certificate issued in terms of Section 53 of the City of Johannesburg: Municipal Planning By-Law, 2016 corresponds with the wording of Section 7(2)(a) of the Sectional Titles Act, 1986 (No 95 of 1986) with regard to the fact that the sectional title scheme is not contrary to any operative town planning scheme.

The conveyancers, who may run the risk of being perceived by the officials as stubborn and obstinate because of their determination to interpret and apply the legislation in a practical manner, eventually triumphed in this battle of red tape and pedantic bureaucratic demands when the 16 housing subsidy beneficiaries in the ERF 1258 sectional title development scheme received transfer of their sectional title units on 19 June 2019, 13 days after the issuing of certificate in terms of Section 53 of the City of Johannesburg: Municipal Planning By-Law, 2016.

In the meantime, the sectional title registers for 25 exactly the same sectional title development schemes in Pennyville Extension 1 Township were opened at the Deeds Office already, and the sectional title units transferred to the approved housing subsidy beneficiaries without the examiners requesting the abovementioned section 53 certificate.

TIMEFRAME FOR THE OPENING OF THE SECTIONAL TITLE REGISTER FOR THE ERF 1258 SECTIONAL TITLE DEVELOPMENT SCHEME

The sectional title development schemes for Pennyville Extension 1 Township were developed for housing subsidy beneficiaries, but it will be informative to consider the timeframe for when the soonest the sectional title register for the ERF 1258 sectional title development scheme could have been opened:

  • If one argues that all the legal requirements were already met with regard to the construction of the building then this sectional title register could have been opened within three to six weeks from the date of approval of the sectional title plans by the Surveyor-General, in other words within three to six weeks from 3 July 2017.
  • If one argues that despite the existence of the sectional title plans duly approved by the Surveyor-General a certificate in terms of Section 53 of the City of Johannesburg: Municipal Planning By-Law, 2016 is also required, it added at least 10 months to the registration process of this scheme from date of approval of the sectional title plans by the Surveyor-General.

What is worrying about this is that despite all the existing legal hoops through which a developer must jump to construct a building for a residential sectional title development scheme, without losing enthusiasm, the municipality in this case added another piece of red tape which prolonged the completion of this project by another ten months.

THE ROLE OF THE PROVINCIAL LEGISLATURE WITH SPLUMA

In the instance of the ERF 1258 sectional title development scheme SPLUMA unfortunately did not achieve its goal of achieving a uniform, effective and comprehensive system of spatial planning and land use management for the Republic.Apart from the different interpretations of the relevant and irrelevant legislation, it is also because the nine provinces did not exercise their rights in terms of Section 10(1) of and Schedule 1 to SPLUMA by introducing provincial legislation in terms of this Act.

The nature and scope of the powers assigned by SPLUMA to the provincial legislatures are found in Section 10(1) thereof and Schedule 1 thereto, in line with Section 104(1)(b)(iii) of the Constitution which states that a provincial legislature has the authority to pass legislation on any matter outside Schedule 4 and 5 that has been ‘expressly’ assigned to it by national legislation.

Paragraph (d) in Schedule 1 to SPLUMA indicates that:
“Provincial legislation regulating land development, land use management, township establishment, spatial planning, subdivision of land, consolidation of land, the removal of restrictions and other matters related to provincial planning and municipal planning may – repeal or amend provincial legislation, including ordinances –

(i) which is consistent with this Act;
(ii) that apply to land development, land use management, township establishment, spatial planning, subdivision of land, consolidation of land, the removal of restrictions;
(iii) that deals with other matters related to planning and provincial planning in that province;”

This means that the Gauteng Province has the powers to repeal existing provincial planning legislation like the Town Planning and Townships Ordinance, 1986 (Ordinance 15 of 1986) to remove any uncertainty created by Section 2(2) of SPLUMA.

CAN A BY-LAW BE ALLOWED TO DERAIL THE DEVELOPMENT PROCESS?

Some municipalities jumped the gun by prematurely adopting by-laws in terms of this Act despite the provinces failing to introduce the essential SPLUMA provincial legislation.

In Section 43 of the Constitution of South Africa, 1996 it is indicated that the legislative authority of the national sphere of government is vested in Parliament, of the provincial sphere of government in the provincial legislatures and the local sphere of government in the municipal councils. All spheres of government and all organs of state within each sphere must not assume any power or function except those conferred on them in terms of the Constitution.

If the national legislation in terms of Section 53 of SPLUMA read with Section 41(2) then does not require the submission of a Section 53 SPLUMA certificate with the opening of a sectional title register it immediately creates questions about the constitutionalism of a by-law like Section 53 of the City of Johannesburg: Municipal Planning By-Law, 2016, which explicitly requires such certificate for the registration of a sectional title scheme.

CONCLUSION

If the nine provinces exercise their rights in terms of Section 10(1) of and Schedule 1 to SPLUMA by introducing provincial legislation in terms of this Act it will eliminate the necessity to have to apply the rules of interpretation of statutes in order to decipher the existing legislation to source the intent of the legislator.

The repeal of outdated provincial planning legislation will bring clarity to the consequences of such repeal and in doing so, bring it in line with the new planning dispensation introduced by SPLUMA.

This will also bring cohesion between all three spheres of government with regard to SPLUMA which will eradicate the conflict created between Section 53 of SPLUMA read with Section 41(2) and Section 53 of the City of Johannesburg: Municipal Planning By-Law, 2016 for instance.

It is now long overdue to address the inconsistencies which were caused, even though unintentionally, by the introduction of SPLUMA on 1 July 2015 which instead of streamlining the development process, added extra red tape, time and costs to the development process.


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