November / December 2019 – Discussing Section 53 of SPLUMA: Part 1

2020-01-23T09:51:01+00:00October 15th, 2019|Legal Matters|

This is Part 1 of discussing Section 53 of the Spatial Planning and Land Use Management Act, 2013 (No 16 of 2013) (SPLUMA). Part 2 in the January 2020 issue will continue the article with a review of engaging with the Deeds Office with the registration process.

Gert Minnaar

Gert Minnaar

By Gert Minnaar

INTRODUCTION

The opening of the sectional title register for a building constructed for residential purposes requires a developer to jump through a vast number of difficult hoops, and it appears that depending on one’s interpretation thereof, that SPLUMA may inadvertently have added another extra hoop or two to this already challenging development process.

SPLUMA was passed by Parliament and came into operation on 1 July 2015. One of the purposes of this Act, as stated in its preamble, is to promote greater consistency and uniformity in the application procedures and decision making by authorities responsible for land use decisions and development applications.

This noble intention is continued in Sections 3(a) and (b) of this Act:

3. The objects of this Act are to –

a. provide for a uniform, effective and comprehensive system of spatial planning and land use management for the Republic;
b. provide for development principles and norms and standards.

Unfortunately, in the case of a sectional title development scheme developed on an erf in a township established and formalised in terms of provincial legislation like the Town Planning and Townships Ordinance, 1965 (Ordinance 25 of 1965) and the Town Planning and Townships Ordinance, 1986 (Ordinance 15 of 1986) it seems that these procedures and decisions are as clear as mud.

SECTION 53 OF SPLUMA

In the heading to Section 53 of SPLUMA reference is made to fact that it regulates the commencement of registration of ownership. However, the wording below this heading states that the registration of any property resulting from a land development application may not be performed unless the municipality certifies that all the requirements and conditions for the approval have been complied with.

The term ‘registration of ownership’ in the heading seems to be contradicted by the term ‘registration of any property’ in the wording of the section, which creates confusion amongst all who want to adhere to this provision.

Does this mean in the case of a sectional title development scheme that a section 53 SPLUMA certificate must be obtained for the opening of the sectional title register at the Deeds Office where Certificates of Registered Sectional Title for each sectional title unit are registered in the name of the developer, or is this certificate only required when the sectional title units in this sectional title scheme are transferred by the developer to the new owners who purchased these units?

The term ‘land development application’ in Section 53 also requires further examination.

SECTION 41(2) OF SPLUMA

The definition of “land use development” in the Spatial Planning and Land Use Management Act, 2013 (No 16 of 2013) shows that it means:
…the erection of buildings or structures on land, or the change of use of land, including township establishment, the subdivision or consolidation of land or any deviation from the land use or uses permitted in terms of an applicable land use scheme.

This led to the belief with some examiners at the Deeds Office, and also some conveyancers, that the term ‘land use development’ includes the opening of a sectional title register, and that the municipality must therefore certify in terms of section 53 of SPLUMA that all the requirements and conditions for the approval of the sectional title scheme have been complied with before a sectional register may be opened at the Deeds Office.

In Section 41(2) of SPLUMA the different types of land development applications are listed, namely:

  1. township establishment
  2. the subdivision of land
  3. the consolidation of different pieces of land
  4. the amendment of a land use or town planning scheme, except any change affecting the scheme regulations in terms of section 25(2)(a)
  5. the removal, amendment or suspension of restrictive conditions.

There is no reference to “sectional title development schemes” to be found in this section of SPLUMA.

Does this mean if a sectional title development scheme is not regarded as a land development application in terms of section 41(2) of SPLUMA that the Registrar of Deeds cannot insist on the submission of a certificate in terms of section 53 of SPLUMA with the opening of a sectional title register, or even with the transfer of ownership of the sectional title units to the purchasers thereof?

THE TOWN PLANNING AND TOWNSHIPS ORDINANCE, 1986 (ORDINANCE 15 OF 1986)

SPLUMA as national legislation neither repealed nor amended the Ordinance. Section 2(2) of SPLUMA though contains the following prohibition which spellsthe end of the continued use of the Ordinance:
Except as provided for in this Act, no legislation not repealed by this Act may prescribe an alternative or parallel mechanism, measure, institution or system on spatial planning, land use, land use management and land development in a manner inconsistent with the provisions of this Act.

In Highlands Organic (Pty) Ltd v MEC Co-Operative Governance, Case No. 3377/2016, Legodi J decided that the date on which the prohibition in section 2(2) of SPLUMA takes effect, is the date on which the specific municipality puts into operation its Municipal Planning By-Law.

In practical terms it means that from the date of adoption of a municipality’s SPLUMA Municipal Planning By-Law no further applications for the establishment of a township in terms of the Ordinance may be accepted by that municipality. This will effectively bring an end to the establishment of new townships in terms of the Ordinance in that municipality, but until such time, it is still possible to establish new townships in terms of the Ordinance. One may assume that this principle will also apply in respect of townships formalised in terms of the Town Planning and Townships Ordinance, 1965 (Ordinance 25 of 1965) with regard to new land development applications for erven in such township.

Does this mean that the sectional title plans for a building constructed before 1 July 2015 when SPLUMA came into operation requires a Section 53 SPLUMA certificate before the sectional title register for that building may be opened at the Deeds Office?

The answer to this question may be found by looking at a practical example of such building which was constructed with occupation certificates issued for each apartment by the municipality which allowed this building to be legally occupied.

THE CASE OF THE BUILDING CONSTRUCTED ON ERF 1258 PENNYVILLE EXTENSION 1 TOWNSHIP

Pennyville Extension 1 Township was established by the City of Johannesburg Metropolitan Municipality in terms of the Town Planning and Townships Ordinance, 1965 (Ordinance 25 of 1965) and proclaimed on 4 July 2008 in the Gauteng Provincial Gazette as an approved township.

The municipality constructed a building, through an implementing agent, with 16 apartments on Erf 1258 Pennyville Extension 1 Township to accommodate 16 housing subsidy beneficiaries earning R3 500 and less per month. This forms part of a housing project consisting of more than 40 similar sectional title development schemes in Pennyville Extension 1 Township.

The intention of the municipality was to open a sectional title register for this sectional title development scheme on Erf 1258 Pennyville Extension 1 Township known as ERF 1259, but the interpretation of the applicable legislation as manifested in the form of notes raised by certain examiners at the Deeds Office almost thwarted this honourable ideal to transfer these subsidy sectional title units to its rightful owners within a reasonable time.

APPROVAL OF THE SECTIONAL TITLE PLANS

Section 7(2)(a) of the Sectional Titles Act, 1986 (No 95 of 1986) states that the submission of a draft sectional title plan to the Surveyor-General shall be accompanied by a certificate issued by an architect or land surveyor stating that the proposed division into sections and common property is not contrary to any operative town planning scheme, statutory plan or conditions subject to which a development was approved in terms of any law that may affect the development.

The land surveyor duly framed the draft sectional title plans for this residential building and submitted it to the Surveyor General for approval, together with a certificate in terms of section 7(2) of the Sectional Titles Act, 1986 (No 95 of 1986). After all the legal requirements were met to his satisfaction, the sectional title plans for the ERF 1259 sectional title development scheme were approved by the Surveyor-General on 3 July 2017.

Prior to the introduction of SPLUMA these approved sectional title plans were sufficient to allow for the opening of this sectional title register at the Deeds Office with no further written consent from the municipality required. Following the opening of the sectional title register the services certificate and rates clearance certificate were the only additional paperwork from the municipality which the Deeds Office required to register the transfer of sectional title units.


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