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 THE TOWN PLANNING AND TOWNSHIPS ORDINANCE, 1986 (ORDINANCE 15 OF 1986) SPLUMA as national legislation neither repealed nor amended the Ordinance.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which spells the end of the continued use of the Ordinance: Except as provided for in this Act, no legislation not repealed by this Act may prescribe an alternative or parallel mechanism, measure, institution or system on spatial planning, land use, land use management and land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