LEGAL MATTERS SPONSORED BY STBB of Deeds stating that the cancellation of these title conditions were approved .
This is how this process worked until the Spatial Planning and Land Use Management Act , 2013 ( No 16 of 2013 ) came into operation on 1 July 2015 .
THE SPATIAL PLANNING AND LAND USE MANAGEMENT ACT , THE DEEDS OFFICE AND THE CONTROLLING AUTHORITY .
When the Spatial Planning and Land Use Management Act was introduced the Registrar of Deeds reasoned that Section 33 ( 2 ) of this Act prescribed that where an application or authorisation is required in terms of any other legislation for related land use , such an application must also be made or such authorisation must also be requested in terms of that legislation .
( 2 ) Despite subsection ( 1 ), where an application or authorisation is required in terms of any other legislation for a related land use , such application must also be made or such authorisation must also be requested in terms of that legislation .
Paragraph 11.1 in Registrar ’ s Circular No 3 of 2016 of the Pretoria Deeds Office states that , apart from the consent of the relevant municipality , the consent of the Controlling Authority as defined in Act 21 of 1940 had to be obtained too and submitted for the cancellation of title conditions imposed in terms of this Act .
This worked well until the Department of Economic Development of the Gauteng Provincial Government ceased processing the applications for the cancellation of title conditions imposed in terms of Act 21 of 1940 . The department determined that it could no longer fulfil the functions of the Controlling Authority , as these functions passed on in terms of Section 45 ( 6 ) of the Spatial Planning and Land Use Management Act to the municipality in whose jurisdiction area the specific land was situated .
( 6 ) Where a condition of title , a condition of establishment of a township or an existing scheme provides for a purpose with the consent or approval of the administrator , a Premier , the township board or any controlling authority , such consent may be granted by the municipality and such reference to the administrator , A Premier , the townships board or controlling authority is deemed to be a reference to the municipality .
BETWEEN A ROCK AND A HARD PLACE
Despite the Department of Economic Development of the Gauteng Provincial Government terminating the processing of applications for the cancellation of title conditions imposed in terms of Act 21 of 1940 the Deeds Office still insisted that the consent or authorisation by the municipality on its own was not sufficient , and the consent or authorisation by the Gauteng Provincial Government was also required before noting the cancellation of these title conditions against the title deed for the land .
This made life impossible for the conveyancers , not to speak of the township applicants , because it was impossible to obtain a consent or authorisation by the Gauteng Provincial Government for the cancellation of these title conditions . This delayed the opening of township registers and the subsequent unlocking of value in the land with the transfer of the stands and other properties in such township .
THE SOLUTION
The professional and courteous relationship between the officials at the Deeds Office and the conveyancers who engage with each other daily is held in high esteem by all these parties . Sometimes vigorous engagements in pursuit of clarity on issues occur because there is so much at stake for the private sector . In the end , when the matter is resolved , the parties find contentment in the outcome that such issue is no longer clouded in uncertainty .
In this case the solution to the problem was found when a township applicant decided to approach the court to rule on who the Controlling Officer is who is authorised to consent to the cancellation of title conditions imposed in terms of Act 21 of 1940 .
The Gauteng Division of the High Court in Riversands Developments Pty Ltd v Registrar of Deeds Pretoria , and others Case No 55768 / 2020 found on 3 November 2020 that the powers and functions of the “ Controlling Authority ” in terms of Section 11 ( 8 )( a ) of the Advertising on Roads and Ribbon Development Act , 1940 ( No 21 of 1940 ) have devolved upon and been assigned to the municipality . The consent by the municipality to the cancellation of these title conditions are consequently sufficient for the cancellation of these title conditions and no consent was required from the Gauteng Provincial Government .
CONCLUSION
The Registrar of Deeds in Pretoria , satisfied that the uncertainty about the identity of the Controlling Authority was dispelled by the court , issued Registrar ’ s Circular 3 of 2020 on 12 November 2020 , confirming that the consent of the municipality is sufficient to note the cancellation of title conditions imposed in terms of Act 21 of 1940 .
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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 .
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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 .
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