Legal Matters Sponsored by STBB
By Gert Minnaar, STBB
There are a number of townships, with two or more township applicants, which have been legally approved by the authorities with formal conditions of establishment and with General Plans approved by the Surveyor-General for which the Registrar of Deeds at Pretoria refuses to open the township registers.
Gert Minnaar, practising conveyancer at the Illovo branch of STBB Attorneys and serving SAARDA committee member
The reason for this refusal is to be found in Registrars’ Conference Resolution 34/2009:
RCR 34/2009 One township on three properties
May three different owners, who own three different properties separately, open one township on all three properties (e.g., one general plan approved and depicting that the township is laid out on all the properties)?
Resolution:
This is not allowed. The provisions of section 22 of Act 47 of 1937 cannot be applied where the remainder of the township is to be transferred. The owners also do not have locus standi (in respect of the property not owned by them) to jointly open such a township.
Section 22 of the Deeds Registries Act, 1037 (No 47 of 1937) is not applicable with the opening of a township register.
The provisions of section 22 of Act 47 of 1937 do not find application when a township register is opened and cannot prevent the opening of a township register with more than one township applicant. The reliance on the possible impact of section 22 ignores the fact that even if the remainder of the township cannot be disposed of while there are still two or more township owners that the stands in the township can be disposed of by these township owners.
Also, the various township owners may dispose of all the stands situate on those portions of the township registered in their names until only one township owner remains. This last remaining township owner may then transfer the remaining extent of the township without contravening section 22 of the Deeds Registries Act if this township owner does not decide to continue disposing of the stands on this remaining extent of the township.
This means that a township with more than one township owner is by no means sterilised if the remaining extent of the township cannot be transferred yet.
Each township applicant may only dispose of the land registered in his name as well as the specific stands situate on his land portion.
The reference to the fact that the owners do not have locus standi in respect of the land of the other owners does not pose a restriction on the respective owners to each dispose of their land jointly in the same township application. No owner may in any event dispose of land not owned by them, unless he acts in terms of a power of attorney granted by the owner of that land.
This means if there are three portions of land which compose the township as depicted on the approved General Plan that the three owners thereof will each submit an application for the opening of the township register in respect of their portion of land so that they may dispose of the stands situate on their portion of the township when these stands become registrable.
The description of the land portions on the approved General Plan
The Surveyor-General describes the land portions of the separate owners on the approved General Plan as follows:
The owner of Portion 93 of the farm on which Erven 98 to 102, 104 and 112 are situated makes application for that part of the township and the owner of Portion 97 of the farm for Erven 94 to 97, 103 and 105 to 111 makes application for the other part of the township.
The title deeds for each of these land portions will then be endorsed in terms of section 46 of the Deeds Registries Act to show which erven depicted on the approved General Plan may be transferred from each title deed, and this title deed becomes the township title for the stands laid out on that specific land portion.
The examiners at the Deeds Office will consequently have no trouble identifying which erven are laid out on which portion of land because it is clear as daylight which township owner may dispose of which stands from which township title.
Section 47 of the Deeds Registries Act
This section of the Deeds Registries Act allows for the owner of a proclaimed township to sell and transfer the whole, a portion or portions of the township.
If a portion of a township is sought to be transferred section 47(a)(i) requires that transfer shall be passed in accordance with a diagram from which shall be excluded all erven on the land represented thereon which have already been transferred, and on which the total area of such transferred erven shall be indicated. The boundaries of such portion shall coincide with one or more lines of division shown on the General Plan for the township and shall not intersect any of the erven shown thereon.
In practice the parties first identify the stands which will compose the portion or portions of the township to be transferred where after the land surveyor frames the diagram depicting the portion of the land on which these stands are situated.
The reference on this diagram is not to the township or erven in the township but to that portion of the land on which the township was originally established.
It is regrettably not clear from this diagram which erven in the township are situate on this portion of the land or township. The easiest way to deal with this is for the land surveyor to issue a certificate which confirms the link between the land portion and the stands situate thereon:
“I hereby confirm that
Portion 77 (portion of Portion 70) of the farm RIETVALEI 241
Registration Division IQ Gauteng Province
Measuring 24, 3755 hectares
As depicted on diagram SG No 1077/2015 consists of the following erven in Azaadville Gardens Township together with public open spaces:
Erven 109 to 210, 224 to 249, 253 to 271 and 274 to 450
I further confirm that none of the erven as laid out on General Plan SG No 10336/2006 have been intersected as a result thereof.”
When a portion of a township gets transferred the original township owner is joined as township owner by the owner of the new portion as fellow township owner.
The legal status of Registrars’ Conference Resolution 34/2009
Section 2(1)(a) of the Deeds Registries Act provides that the Chief Registrar of Deeds shall exercise supervision over all the deeds registries as may be necessary to bring about uniformity in practice and procedure. Section (1D) states that for this purpose supervision includes the issuing of practice and procedure directives. These practices and procedures are then implemented by the Registrars of Deeds in terms of section 3(1)(z) of the Deeds Registries Act.
The Deeds Registries Act though does not give these directives, which this resolution forms part of the status of subordinate legislation. In the unreported judgment in Edkins v Registrar of Deeds, Johannesburg, and Others 2013 South Gauteng High Court case number 16117/11 the judge reached the conclusion that the registrars’ conference resolution which was under discussion in that matter has no legal effect and is at most a guideline. The views of the Registrar also cannot supersede a court’s function and discretion.
The rule of law
Section 1 of the Constitution of the Republic of South Africa, 1996 states that our democratic state is founded on the supremacy of the constitution and the rule of law. In simplest terms the rule of law can be explained that the state can only do what the law allows it to do. Likewise, it also governs how public officials may exercise the powers granted by the law to them.
The rule of law also means that governments must act legally. It follows that the Registrar of Deeds must act within its authority as allowed in the Deeds Registries Act, and if it exceeds these powers, it will not act lawfully.
Whose function is it to approve township applications?
In the case of City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others (CCT89/09) [2010] ZACC 11; 2010 (6) SA 182 (CC); 2010 (9) BCLR 859 (CC) (18 June 2010) Jafta J held that “the Constitution envisages a degree of autonomy for the municipal sphere, in which municipalities exercise their original constitutional powers free from undue interference from the other spheres of government.”
He further endorsed the Supreme Court of Appeal’s finding that “planning” in the context of municipal affairs has assumed a particular, well-established meaning which includes the zoning of land and the establishment of townships. Therefore, Jafta J held that the powers to consider and approve applications for the rezoning of land and the establishment of townships are elements of “municipal planning,” an exclusive municipal function assigned to municipalities by section 156(1) of the Constitution read with Part B of Schedule 4.
Is Registrars’ Conference Resolution 34/2009 valid?
Until Registrars’ Conference Resolution 34/2009 was passed the Deeds Office allowed the opening of township registers for townships with more than one township applicant without any repercussions because it was, and still is, legally possible to do it. The person who proposed this resolution in 2009 and the persons who agreed to accept and implement it changed this arrangement without carefully considering the unintended consequences.
Apart from the fact that the reasons for this resolution are unpersuasive this guideline surely cannot muster constitutionalism because it cannot nullify the legislation in terms of which townships are considered and approved by municipalities and General Plans approved by the Surveyor-General. If it is allowed to do this, the Chief Registrar and Registrars of Deeds are acting beyond their legal power and authority.
Conclusion
In South African National Roads Agency Ltd v The Chief Registrar of Deeds 2010 JDR 0188 (GNP), at para [23], Makgoba J said: “The resolutions adopted by the various Registrars of Deeds (i.e. resolution 10/2008 in respect of vesting transfers and resolutions 13/2005 and 9/2007 in respect of expropriation transfers) clearly fall within the ambit of the definition of an ‘administrative action’ in the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’). The action falls to be reviewed under the provisions of section 6(2)(d) of PAJA. The Registrar of Deeds clearly erred in law in adopting the resolutions which they did.”
The same principle is applicable in respect of Registrars’ Conference Resolution 34/2009 which undoubtedly affects the rights of township applicants for an approved township with more than one property adversely. This also has a direct external effect on their rights.
This matter was raised numerous times with the Chief Registrar of Deeds since 2009 who in 2018 decided to obtain a legal opinion from the Chief State Law Advisor. This opinion indicates that section 46 of the Deeds Registries Act does not authorise the opening of one township register where three township applicants bring such application together and simultaneously. Unfortunately, this seems not to be a correct interpretation of this section.
The remedy for township owners of such a legally approved township now is to take this resolution on review and if necessary, if such township applicants are convinced that this administrative action is based on a mistake about what the law requires, a court may set the action aside.
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For more information related to the information published, please contact Gert Minnaar at gertm@stbb.co.za or visit our website www.stbb.co.za to view contact information for your nearest branch.
