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Quandary

18 April 2019

It has been observed that there is a persisting conjecture around the correct interpretation of the provisions of Section 53 of SPLUMA on the one hand as well as its conception within the purview of Section 41(1) and (2) thereof which compromises the validity of registration of transactions arising from land development applications.

The divergent deductive constructions held by various practitioners on the matter continue to pose a serious threat to legal certainty and ultimately to registration of relevant deeds as aforementioned.

The purpose of this article, therefore, is to make elucidatory remarks on a proper construction of the section in question.

One cannot emphasise enough the fact that the section in question is prohibitory in nature and as such it calls for the utmost degree of accuracy, unflawed and unambiguous conception of the meaning and objectives entrenched therein; lest the incumbents invoke it contrary to its spirit and tenor.

The section in question reads as follows:

“Commencement of registration of ownership 53.
The registration of any property resulting from a land development application may not be performed unless the municipality certifies that all the requirements and conditions for the approval have been complied with.”

The primary debacle in this provision and cause of confusion lies in the fact that the heading refers to commencement of registration of ownership whereas the content thereof broadly relates to registration of any property resulting from a land development application including matters that are not related to transfer of ownership.

While it is relatively easy to determine the scope of “any property resulting from a land development application” within the ambit of Sections 41(1) and (2) of SPLUMA as well as relative provisions in the respective Municipal Planning By-Laws; not all the registrations as aforementioned have any bearing on the commencement of ownership, e.g. removal of restrictions; yet they are classified as land development applications.

Thus the use of the phrase “The registration of any property resulting from a land development” is a statutory anomaly if one takes the heading thereof into cognisance and therefore aligns the meaning thereof to transfer of ownership as couched in the heading.

Basically the heading is incompatible and therefore misaligned with the content of the section, hence the conjecture.

In order to give the section, the latitude of proper construction, a comparative analysis must be made of clear and unambiguous prohibitory provisions in related legislation as espoused in a plethora of sources.

It has been observed that there is a persisting conjecture around the correct interpretation of the provisions of Section 53 of SPLUMA on the one hand as well as its conception within the purview of Section 41(1) and (2) thereof which compromises the validity of registration of transactions arising from land development applications.

The divergent deductive constructions held by various practitioners on the matter continue to pose a serious threat to legal certainty and ultimately to registration of relevant deeds as aforementioned.

The purpose of this article therefore is to make elucidatory remarks on a proper construction of the section in question.

One cannot emphasize enough the fact that the section in question is prohibitory in nature and as such it calls for the utmost degree of accuracy, unflawed and unambiguous conception of the meaning and objectives entrenched therein; lest the incumbents invoke it contrary to its spirit and tenor.

The primary debacle in this provision and cause of confusion lies in the fact that the heading refers to commencement of registration of ownership whereas the content thereof broadly relates to registration of any property resulting from a land development application including matters that are not related to transfer of ownership.

While it is relatively easy to determine the scope of “any property resulting from a land development application” within the ambit of Sections 41(1) and (2) of SPLUMA as well as relative provisions in the respective Municipal Planning By-Laws; not all the registrations as aforementioned have any bearing on the commencement of ownership, e.g. removal of restrictions; yet they are classified as land development applications.

Thus the use of the phrase “The registration of any property resulting from a land development” is a statutory conjecture if one takes the heading thereof into cognisance and therefore aligns the meaning thereof to transfer of ownership as couched in the heading.

Basically the heading is incompatible and therefore misaligned with the content of the section, thereby creating a conjecture.

In order to give the section the latitude of proper construction, a comparative analysis must be made of clear and unambiguous prohibitory provisions in related legislation as espoused in a plethora of sources.

In Registrars Conference Resolution (RCR 45/2012) the question posed was:

‘In terms of the various Provincial Ordinances land in a township cannot be sold, exchanged, leased or disposed of in any manner before the proclamation date. Can the owner, based on the Huntrex 148 (Pty) Ltd v J A van Jaarsveld, case 217/2010, sell property before the townships is proclaimed (sic)?’”

The Conference resolved: “The Ordinances must be adhered to; alternatively, a court order is required.”

Section 101(4) of the Town Planning and Townships Ordinance 15 of 1986 reads as follows:

Having endorsed or registered the title deeds as contemplated in subsection (1) the Registrar shall notify the authorised local authority forthwith of such endorsement or registration, and thereafter the Registrar shall not register any further transactions in respect of any land situated in the township until such time as the township is declared an approved township in terms of Section 103.”

It is clear in the foregoing provision that all “transactions” arising from a township are prohibited. One of the aspects that makes it clear is the absence of a contradictory heading.

Section 8(5) of the Free State Townships Ordinance 9 of 1969 reads as follows:

“After an owner of land has taken steps to establish a township thereon, no person shall –

(a) enter into any contract whereby any land in such township is sold, exchanged, leased or disposed of in any other manner;

(b) erect a building on such land, except with the approval of the responsible member or otherwise than in accordance with the conditions imposed by the responsible member when granting such approval, until –

(i) ........; or

(ii) ........; or

(iii) .........; or


(iv) the responsible member shall have declared the township an approved township and, in the case of such an owner who is not a local authority, the responsible member shall have satisfied himself that the services and amenities which have to be provided in connection with such land in terms of the conditions subject to which the establishment of such township was approved, are available and shall have issued a certificate to that effect.”

Section 8(7) of the Ordinance further provides that any contract entered into in conflict with the provisions of subsection (5) shall be of no force or effect.

It is clear from the above extracts that the prohibition will easily extend to leases, mortgage bonds, etc., whereas the same cannot be said about Section 53 of SPLUMA as it only seems to prohibit registration of ownership (at least according to its heading).

Given the ambiguity of the above section, one wonders what exactly the purpose of the prohibition is; is it merely prohibition of transfer of ownership or restriction against any form of alienation or transaction before compliance with conditions of establishment?

This conundrum can be resolved by invoking the hermeneutical rules of statutory interpretation.

It is easily discernible from the foregoing remarks that the orthodox approach to interpreting the section will be a futile exercise given the contradiction between the heading and the related content.

According to the golden rule of interpretation, if the ‘plain meaning’ of the word is ambiguous, vague or misleading or if a strict literal interpretation would result in absurd results then the court may deviate from the literal meaning to avoid such an absurdity.

In the case in hand, the words “registration of any property” are vague and are incompatible with the heading that refers to “registration of ownership” given the fact that registration of ownership presupposes only those acts that will involve transferring an erf from the developer to the transferee or the issue of a Certificate of Registered.

Title in favour of the developer while “registration of any property” on the other hand means a plethora of transactions beyond the scope of transfer of ownership, e.g. mortgage bond, servitude, lease, etc.

This leaves us with the golden rule of interpretation whereby the plain meaning of the text must be dispensed with and instead the intention of the legislator or the purpose of the provision must be determined.

One must therefore adopt the purpose-oriented (text in context) approach, in terms of which the purpose or object of the legislation (the legislative scheme) is the prevailing factor in interpretation.

An accurate diagnosis of the real purpose of section 53 can be achieved by first determining the mischief being prevented by the legislation enacting this section. Premature transfer of erven in a township, i.e. transfer before a proclamation that the township is declared an approved township may result in absurdity in the event that the township application is ultimately rejected or not approved.

In the same token, registration of a lease, any disposal or mortgage over an erf in a township before it is declared approved is absurd. Such registration would be void ab initio. Another misconception involves the invoking of the provisions of Section 53 without due consideration and observance of the transitional measures.

This misconception manifests itself in the indiscriminate practice of calling for Section 53 Certificates to be lodged with all deeds arising from land development applications submitted after 1 July 2015. Such practice is flawed in the sense that not all deeds arising from a land development application after 1 July 2015 are completely amenable to SPLUMA as some land development applications may still be approved in terms of the respective ordinances or un-repealed planning laws. A typical example of this scenario is where a municipality has not yet passed a Municipal Planning By-Law. In such instance, it would be absolutely ludicrous to invoke Section 53.

Instead the relevant compliance Certificates prescribed in the respective Ordinance or un-repealed Ordinance must be called for, e.g. Certificate in terms of Section 82 and Section 92(3) Ordinance 15 of 1986 read with Regulation 38 of the ordinance.

Wiseman Bhuqa, Law Lecturer
Legal Support & Deeds Training

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