Another rumour that is causing anxiety in our industry is that, as from October 2020, no property will be able to be transferred unless a certificate in terms of the Spatial Planning and Land Use Management Act (SPLUMA) has been obtained from the municipality. The main purpose of this Certificate will be to confirm that all improvements on the land are built in accordance with approved building plans and comply with the zoning scheme. Thankfully, this is not true, at least not in the Western Cape. The confusion appears to have arisen because we have SPLUMA, which is a law that applies to the whole country, and a by-law in Emalahleni, Mpumalanga, that applies only in Emalahleni, which has a similar name. SPLUMA, which was passed in 2015, applies nationally, and requires provinces and municipalities to pass provincial and local laws to govern land use and land development in their provinces and municipalities within 5 years (which is where the 2020 deadline appears to come from).
It does however not specifically state that before a property can be transferred, a certificate to confirm approved building plans and zoning is required.
The similarly named SPLUMA by-law of Emalahleni, Mpumalanga however does contain such a section. In Emalahleni, Mpumalanga such a certificate is therefore required before a property can be transferred. This is apparently the practice in the Mpumalanga Deeds Office.
Given the fact that the by-law in Emalahleni, Mpumalanga so closely resembles the “main” SPLUMA by name, we think that this is where the confusion has arisen, and some commentators have interpreted the local by-law to apply to the whole of the country. We must however point out that the wording of the Emalahleni Municipal By-law is also repeated in the Polokwane by-law, so this might be a trend in the northern part of the country too.
The Western Cape Land Use Planning Act (the provincial legislation that governs how we do things in the Western Cape), and the City of Cape Town Municipal Planning By-Law (which tells us how we do things in the City of Cape Town) – both of which were passed specifically in order to comply with SPLUMA – however do not require such a certificate before transfer.
It thus appears that those of us lucky enough to be in the Western Cape can all calm down to a mild panic!
We will however continue to monitor the situation and if any further information comes to light, we will let you know.
Robert Krautkrämer and Deon Welz
Miltons Matsemela Inc
Further clarity:
See the comment below by Allen West and the article SPLUMA certificate ‘not an SA-wide requirement’ on Property24.com.
Reader Comments:
Does anybody know what the situation in Gauteng is? JHB and PTA deeds office?
Suzette, herewith the response received from Tshwane:
Dear All,
I have received a huge number of enquiries, from developers, town planners and estate agents due to an article that appeared in Bizcommunity. I will WhatsApp the link that has been sent to me a number of times otherwise you can google the article. I have also checked with Pretoria Deeds Office they are not aware of any such decision and is trying to ascertain where this is coming from. In short it states that as of October 2020, no properties may be registered as a result of a sales agreement without the Municipality providing a “SPLUMA” Certificate which certifies that all building plans have been approved for the costing structures and that the land use rights are in place. The only certificate that we are aware of that the Municipality is obliged to issue in terms of SPLUMA is the 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. However, nothing prevents the Municipalities from dealing with this in terms of their Land Use Management by-laws as part of its Constitutional function of Municipal Planning. E.g. confirmation of land use rights for purposes of opening/registering a sectional title scheme, especially on farm portions where township establishment may have been by-passed.
This type of certificate will not be a SPLUMA certificate unless SPLUMA is amended OR unless, such confirmation of rights and building plans is included as a condition of approval for a land development, but this will only apply for purposes of a section 53. The other option is that the Deeds Registry Act 1937 is amended to include such a requirement of which we have not had any notice.
Regards NICOLENE LE ROUX
Any feedback with regards to the Polokwane Deeds office?
Dianne, I have perused the Polokwane Municipal By Law and could not find anything therein.
Leave a comment: