The introduction of the DFA (Development Facilitation Act 67 of 1995) can be considered to be one of the most important enactments with the coming into operation of the new South Africa.
In terms of the highest law in the country, the Constitution, Act 108/1996, the legislature of the nine provinces has the exclusive right to make and pass laws relating to matters contained in Schedule 5, as well as a concurrent legislative capacity (that is with the National Legislature) to make and pass laws to matters contained in Schedule 4.
Provincial planning is a matter contained in Schedule 4 and regional planning is contained in Schedule 5. Section 104(4) of the Constitution determines that a province may make laws reasonably necessary or incidental to the effective exercise of any matter listed in Schedule 4.
National legislation can be assigned to the provinces. In terms of section 235(8) of the Interim Constitution of 1993 the following National Legislation was assigned to the provinces:
- Less formal Township Establishment Act 113 of 1991
- Local Government Transition Act 209 of 1993
- Removal of Restrictions Act 84 of 1967
- Proclamation R1897 of 1986 Entitled Regulations relating to Township Establishment and Land Use in terms of the Black Communities Development Act 4 of 1984
- GN R1886 of 1990 entitled Land Use and Planning Regulations in terms of the black Administration Act 38 of 1927
- Proclamation R293 of 1962 entitled Regulations for the Administration and Control of Townships in Black Areas in terms of the Black Administration Act 38 of 1927 and the Development Trust and Land Act 18 of 1936
Besides the national legislation there is also provincial legislation, and the proposed legislation for KwaZulu-Natal is the KwaZulu-Natal Planning and Development Act, 6 of 1998.
Until such time as the aforementioned act becomes operational, the Provincial Ordinances, such as Ordinance 27 of 1949, will be operational. Once the act comes into operation it will repeal the relevant Ordinances.
Content of the Act
The Act envisages a Planning and Development Commission that consists of persons appointed by the minister after public participation procedures have been complied with.
Members of the commission will include persons with expertise and persons nominated by persons of bodies representing communities intended to benefit from planning and undertaking financial planning and development in urban and rural areas.
This Commission in terms of section 4(1)(c) will dissolve the Private Townships Board (the so-called PTB) established under Chapter 11 of Ordinance 27 of 1949. This commission shall be able to exercise the powers of a townships board as defined in Sections 4 and 5 of the Removal of Restrictions Act, 84 of 1967.
The MEC is the responsible authority who deals with applications for development and subdivision.
The Act contains very specific provisions for public participation. Provisions to draw up various plans and to deal with applications to establish a township include provisions for participation by the public.
The Act sets out procedures for the subdivisions of land in Chapter VI. This chapter rationalizes the provisions of the ordinance and the various KwaZulu-Natal regulations relating to the subdivisions of land. The DFA as well as Act 113 of 1991 remains effective.
Section 37 of the Act provides that no person shall subdivide land without first having applied for and obtained the relevant approval to do so. In terms of section 39 anyone wishing to subdivide land shall obtain in writing the approval of the responsible authority prior to the amendment or cancellation of the general plan.
Applications for subdivision lodged for approval prior to the coming into operation of this act, may make application to the minister or relevant authority (whichever the case may be) for the conversion of that application into an application under the provisions of Chapter VI of the Act.
The responsible authority has the power to suspend any application lodged with it for subdivisional approval under section 39 where it becomes aware that substantially the same application was made for approval of the same land under the DFA
Functions of the Deeds Registry
Section 40 states that after a General Plan has been approved by the Surveyor General and filed at the deeds registry, the Registrar of Deeds shall open a register in respect of the land concerned and at the opening of such a register any registrable conditions subject to which the application has been granted shall be entered and any servitude or restrictive condition cancelled or expropriated under sections 41 and 42 shall be cancelled.
The conditions referred to are conditions which were instituted in favour of the premier or in favour of the general public, by virtue of the Private Township and Town Planning Ordinance 10 of 1934.
Such cancellation or amendment must be desirable and in the public interest, it must constitute a restriction on the use of land or the erection or use of buildings or other structures and there must be a valid development plan, scheme or other plan offering control which in the premier's opinion renders the restrictive condition concerned unnecessary.
Coming into operation of the Act
The Act was assented to on 11 June 1998 but is not operational yet.
Republished with permission from the August 2003 Deeds Registration Law Newsletter