SA Affordable Housing November - December 2019 // ISSUE: 79 | Page 33
LEGAL MATTERS
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SPLUMA as national legislation neither repealed nor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 spells the 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Except as provided for in this Act, no legislation not repealed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
www.saaffordablehousing.co.za
SPONSORED BY STBB
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.
STBB offers a variety of legal services where our expertise
and friendly approach allows us to deal with every legal
matter in an effective and efficient manner ensuring a
pleasant experience for our clients.
In the property sector we cover:
• Property law
We offer benchmark services for both retail and
development property transactions. We are reputed for
our teams of seasoned property law practitioners who
share an extensive set of skills to smoothly address
every aspect of property law and land development
transactions.
• Local Government, Planning, Development and
Environmental law
Our Development Law Unit has nine specialists
addressing development requirements in the fields of
planning law, environmental law, construction law,
renewable energy law and local government law. The
Unit partners with land developers to function as a vital
watchdog and one-stop-shop for all legal requirements
of land development projects, including low cost
housing projects.
For more information related to the information published,
please contact Gert Minnaar at [email protected] or visit our
website https://www.stbb.co.za to view contact information
for your nearest branch.
NOVEMBER - DECEMBER 2019
31