Over the last few weeks there has been a panic about a requirement that before a transfer can be registered, a seller would need to provide the Deeds Office with a certificate issued in terms of the SPLUMA legislation, certifying that all town planning provisions have been met.
What is SPLUMA? SPLUMA is an acronym for the Spatial Planning and Land Use Management Act. This is National legislation in terms of which each municipality in South Africa is empowered to make its own Town Planning By-Laws. Larger municipalities have drafted their own by-laws, but most smaller municipalities have adopted a reasonably standard set of by-laws.
On the 4th of March 2016 the Registrar of Deeds in Mpumalanga issued a Registrars Circular which provided that before any transfer was registered in that Deeds Office, a certificate in terms of Section 70 of the Mbombela By-Law on SPLUM needs to be filed with the Registrar there. The Conveyancers in Nelspruit convinced the municipality there that any such certificate should not include reference to the National Building Regulations, as this would mean every property would need to be inspected by the municipality before the requisite certificate could be issued by the municipality.
The interesting thing is that when applying for a certificate, an owner must state in an affidavit that, inter alia, all development charges raised by the municipality have been paid, they understand the requirements of SPLUMA and of the Municipal by-laws with regard to permitted use of the land, and that the use of the land is not in conflict with these bits of legislation. How would the average seller even know all this?
As indicated, it did not go so far as to suggest there are no encroachments on neighbouring properties and that the plans filed with the municipality are “as-built” plans.
These questions are raised for new developments and that really is what the intention of SPLUMA was when it was drafted. It was always intended to govern the use of land going forward and to enable municipalities to customize their own by-laws within that framework.
None of the City of Johannesburg, the City of Tshwane and apparently also the City of Cape Town have a similar provision to Section 70 of the Mbombela By-Law.
The By-Laws in these cities provide that a transfer of a property arising out of a new development must be accompanied by a certificate issued by the municipality to the effect that all provisions of the consent to the new development have been met. But there is no requirement that subsequent transfers should also be supported by any certificate issued in terms of SPLUMA or any by-law passed under such legislation.
Nicolene Le Roux, Director: Development Compliance at the City of Tshwane has confirmed that when she enquired, the Pretoria Deeds Office advised they are not aware of any decision to require any such certificate. She says: “The only certificate that we are aware of that the Municipality is obliged to issue in terms of SPLUMA is a Section 53 certificate. However, this section is very specific in that it is required as a certification for purposes of registration transactions “resulting” from a land development application. Normal sales and transfers do not result from a land development application.”
Ms Le Roux concedes that nothing prevents a municipality from introducing such a provision into its by-laws, in which case the certificate would be issued in terms of the by-law and not SPLUMA. If such a certificate should become necessary under SPLUMA, the SPLUMA would need to be amended to provide for such a certificate.
Until SPLUMA is amended or the specific municipality amends its by-laws, only the Mpumalanga Deeds Office requires a certificate that the property complies with municipal land use regulations. No Deeds Office will require a certificate that all building regulations have been complied with. To the best of our knowledge no such amendments are being considered anywhere in South Africa.
Andrew Smith has 26 years of conveyancing experience, including subdivisions, township developments, sectional title developments, servitudes, usufruct transfers, general transfers, mortgage bonds, and uses his tax background to structure complicated transactions in the most tax efficient manner.