SPLUMA Certificate! What SPLUMA certificate?

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.

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2 thoughts on “SPLUMA Certificate! What SPLUMA certificate?”

  1. Three years after this article was written.
    Mbombela Municipality is still demanding Spluma certification?

    1. This is a very good question.

      Glencore Operations SA (Pty) Ltd and others challenged the municipalities of Govan Mbeki Municipality and Emalahleni in the High Court of Mpumalanga in 2 separate cases on this question during 2021. The Court held that there was no legal basis for the municipalities to be insisting on SPLUMA certificates where the subject of the transfer was not in a brand new development.

      The municipalities took the decisions on appeal to the Supreme Court of Appeal of South Africa (the “SCA”). The SCA on 17 June 2022 dismissed the appeals thus confirming the decision of the High Court of Mpumalanga.

      On 8 July 2022, the Municipality of Emalahleni applied to the Constitutional Court for leave to appeal the decision of the SCA.

      On the 17th of January 2023, a letter from Emalahleni Local Municipality was served on the Registrar of Deeds of Mpumalanga in which they informed the Registrar of their intention to withdraw their appeal and abide by the SCA judgement and amend their SPLUMA by-law in line with the guidelines set out in the judgement. The municipality also requested the Registrar of Deeds to issue a notice to examiners and conveyancers to give effect to the Notice of Withdrawal. On 22 February 2023, the office of the Registrar of Deeds issued a notice to that effect.

      On the 23rd of February 2023, the office of the Registrar was instructed by the legal representative of Emalahleni Local Municipality to disregard the letter received on the 17th of January 2023.

      The Registrar was further instructed to continue calling for section 86 compliance certificates in terms of the Emalahleni Local Municipal by-law. In this letter to the Registrar of Deeds, the said municipality confirmed it intended proceeding with its application to the Constitutional Court to Appeal the decision of the SCA.

      The Registrar of Deeds has had no alternative other than to continue requiring SPLUMA certificates despite the decisions of the High Court of Mpumalanga and the SCA which ruled that these municipalities have no legal basis for requiring SPLUMA certificates for the transfers of “2nd hand properties”.

      The Courts so far agree with the contents of our article. We feel confident the Constitutional Court will agree also.

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