SA Affordable Housing January - February 2020 // ISSUE: 80 | Page 32

LEGAL MATTERS
SPONSORED BY STBB
Discussing SPLUMA: Part 2
By Gert Minnaar
This is the second part of the series ‘Discussing SPLUMA’,
this time focusing on engagement with the Deeds Office.
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
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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.
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
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