Gert Minnaar argues that Pretoria Registrar's Circular 2 of 2019 (see Pretoria Registrar's Circular 2 of 2019) condones the contravention of sections 82 and 113 of The Town-Planning and Townships Ordinance, 1986, and makes the following points:
- One of the duties of the Registrar of Deeds is described in section 3(1)(b) of the Deeds Registries Act 47 of 1937 as follows: “The Registrar shall, subject to the provisions of this Act, examine all deeds or other documents submitted to him for execution or registration, and after examination reject any such deed or other document the execution or registration of which is not permitted by this Act or by any other law, or to the execution or registration of which any other valid objection exist.”
- One can presume that the reference to "document" here above includes conditions of establishment issued by municipalities when townships are established.
- Section 1(c) of the Constitution of the Republic of South Africa, 1996, states that our democratic state is founded on the supremacy of the Constitution and the rule of law. In simplest terms the rule of law can be explained that the state (including a municipality) can only do what the law allows it to do. Furthermore, it also governs how public officials may exercise the powers granted by the law to them.
- The rule of law also means that governments must act legally. It follows that a municipality must act within its authority as allowed in the Town-Planning and Townships Ordinance, 1986 (or any other provincial and national legislation), and if it exceeds these powers it will not act lawfully.
- Paragraph 220.127.116.11 in Registrar's Circular 2 of 2019 refers to a meeting on 18 September 2018 where a decision was taken by officials from the Pretoria Deeds Registry, Johannesburg Deeds Registry and the City of Tshwane Metropolitan Municipality that the Registrar of Deeds will accept a condition in the conditions of establishment for a township which requires the submission of a services certificate for the registration of a Certificate of Registered Title or Certificate of Consolidated Title (where ownership is not transferred) for an erf in a township established in terms of the Ordinance, as long as no reference is made to sections 82 and 113 of the Ordinance.
- The reasoning behind this decision appears to be that section 98(2) of the Ordinance allows the municipality to impose any conditions of establishment.
- This reasoning cannot be correct if it leads to a decision that conditions of establishment, in contravention of sections 82 and 113 of the Ordinance, are legitimate conditions of establishment, as long as these conditions of establishment do not refer to sections 82 and 113 of the Ordinance.
- Is this contravention of sections 82 and 113 of the Ordinance not supposed to be treated by the Deeds Office a matter which is not permitted by the Deeds Registries Act or by any other law, or to the execution or registration of which any other valid objection exist?
- Is the Deeds Office not supposed to refer the conditions of establishment which contravene the provisions of sections 82 and 113 of the Ordinance back to the municipality to amplify it to meet the requirements of sections 82 and 113 of the Ordinance?
- This failure now led to these conditions of establishment, in clear contravention of sections 82 and 113 of the Ordinance, to be carried forward to proclamation notices when these townships were formalized.
- This also means there are now formalized Ordinance townships which are treated differently, namely those before the introduction of Paragraph 18.104.22.168 in Registrar's Circular 2 of 2019 where no service certificate was required as prescribed in sections 82 and 113 of the Ordinance for the registration of a Certificate of Registered Title or Certificate of Consolidated Title (where ownership is not transferred) , and those townships after this introduction where service certificates are now required because of a decision taken by officials on 18 September 2018 which allows sections 82 and 113 of the Ordinance to be contravened.