One of the invariable consequences of Section 156(2)
of the Constitution of the Republic of South Africa and Section 32 of the Spatial Planning and Land Use Management Act 16 of 2013 as far as deeds office procedure on land development applications is concerned, is the unforeseen demarcation of the said procedures
according to the area of municipal jurisdiction; which overrides the prevailing provincial-based practice whereby the Ordinance or Planning Act provides a uniform procedure across the municipalities in a province.
Not only will deeds practice differ
from one deeds office to another as per prevailing dispensation but lately a single deeds registry will, to a certain extent, have to follow different practices per municipality bylaws.
The City of Emalahleni Municipality Land Use Management Bylaw
came into operation on 2 March 2016.
Section 2 of the bylaw limits the application of the latter to the jurisdictional geographical area of the Municipality, including properties owned by the state. This means that a new deeds practice and procedure
for the opening of township registers etc., has developed based on the bylaw peculiarly for properties that fall within the jurisdiction of the City of Emalahleni Municipality.
Opening of a Township Register sub-section In terms
of section 16(4)(e) of the bylaw an application must be lodged with the registrar of deeds within 12 months from the date of approval of the general plan by the Surveyor-General (SG) or within a period of extension granted by the Municipality.
plan and diagram must be examined to verify the date on which it was approved by the SG. If the prescribed period is infringed, the application will be rejected unless the applicant produces proof of extension from the relevant municipality.
of section 16(8)(b) the registrar of deeds shall not accept the application for the opening of a township register and registration of a general plan without a certificate by the Municipality that the applicant has complied with conditions imposed in terms
of Section 16(7)(b).
Documents to be lodged
- Application in terms of Section 46(1) of the DRA;
- Certificate of compliance with pre-proclamation conditions in terms
of Section 16(7)(b);
- NB: the above certificate does not replace the certificate in terms of Section 82 of Ordinance 15 of 1986. The Section 82 certificate is still applicable where the application for a township establishment was
submitted before 1 July 2015.
- Conditions of establishment,
- General plan,
- Title deeds,
- Mortgage bond,
- Consent of bond holder.
Notice by the Registrar of Deeds after registration
of the General Plan and opening of the Township Register The registrar of deeds must deliver a notice to the municipality in terms of Section 16(8)(c)(ii) after endorsing the deeds regarding the registration of the general plan and opening of the
Prohibition of registration before proclamation Section 16(8)(C) (ii) states that after registration of the general the applicant shall not register any further transactions within the township until the latter is
declared an approved township in terms of subsection 16(9).
NB: this prohibition does not apply to the transfer of the whole township to a new owner.
Proclamation of an approved township In terms of S16(9)(i)
proclamation of an approved township may be carried out by:
- The municipality
- The applicant.
NB: Proof must be adduced that the applicant is authorized
by the municipality to effect the proclamation.
The Township file The township file will comprise of the following documents:
- Notice by the municipality in terms
of section 16(7)(c);
- Conditions of establishment and/or amended conditions of establishment issued in terms of Section 16(4)(f) of the bylaw, with a heading suitably referring thereto;
- Notice of extension of time by the municipality regarding
lodgment of general plan with registrar of deeds where the municipality has granted an extension in terms of section 16(8);
- Certificate of compliance with conditions of establishment issued by the municipality in terms of section 16(7)(b);
by registrar of deeds in terms of section S16(c); and
- Proclamation of an approved township in terms of S16(9)(i).
First transfer of erven in a new township
Priority is to be given to transfer of
property to the municipality, non-profit organization or any person authorised by the municipality Section 16(11) prescribes that transfers to the municipality, non-profit organisations and persons authorized by the municipality must be take place
before any other transfer or registration of a transaction in the new township, including registration of a sectional title scheme, certificate of consolidated title, certificate of registered title etc.
The transfer must take place within 6 months
from the date of proclamation of the township. Conveyancers and Examiners in the deeds office must take heed of this provision and carefully examine the conditions of establishment as there will be no caveats noted on data in this regard.
Basically the only way to effectively comply with Section 16(11) is to conduct prior examination of the conditions of establishment.
Certificate of Compliance before registering transfer of ownership and other transactions Section 16(10)(b)
makes only one express prohibition under this topic namely: It prohibits the submission by the applicant to the registrar of deeds of any transfer or registration transaction of land within a land development area, including sectional title schemes, certificate
of consolidated title and certificate of registered title without a compliance certificate envisaged in Section 53 of SPLUMA.
Note that unlike Section 53 of SPLUMA, there is no express prohibition against the registrar of deeds to register
the above mentioned transactions. This is at variance with SPLUMA and also a serious lacuna in the bylaw.
The Registrar of Deeds may issue a directive to guide practice and avoid this conjecture e.g. a circular that asserts that the registrar will not
accept transfers and other transactions that are not accompanied by a certificate in terms of Section 53 of SPLUMA.
References: Deeds Registries Act 47/1937, City of Tshwane Metropolitan Municipality Land Use Management Bylaw 2016, City Emalahleni
Municipality Land Use Management Bylaw 2016, Wikipedia, the free encyclopedia, "Areas constituting the City of Tshwane". City of Tshwane. Retrieved 2008-11-30