SA Affordable Housing November - December 2019 // ISSUE: 79 | Page 32

LEGAL MATTERS
SPONSORED BY STBB
Discussing Section 53 of
SPLUMA: Part 1
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.
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
30
NOVEMBER - DECEMBER 2019
SAAffordHousing
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:
a. township establishment
b. the subdivision of land
c. the consolidation of different pieces of land
d. the amendment of a land use or town planning scheme,
except any change affecting the scheme regulations in
terms of section 25(2)(a)
e. the removal, amendment or suspension of restrictive
conditions.
saaffordablehousingmag
SA Affordable Housing
www.saaffordablehousing.co.za