- In response to Total recall - a response 2 ("the article"), my view is that there is no requirement anywhere in the Sectional Titles Act, 1986, ("the STA"), including section 6 (1) thereof, and the Regulations made thereunder ("the Regulations"), including Regulations 6 and 7 thereof, that a Sectional Plan "can only be submitted to the Surveyor General for approval once erection of the buildings is complete".
- Attention is drawn, for example, to section 4 (2) of the STA, which provides that: "A scheme may relate to more than one building situated, to be erected or being in the process of erection on the same piece of land, or on more than one piece of land, whether contiguous or non contiguous: ……….." (emphasis added).
- Attention is drawn, further, to section 7 (2) (a) of the STA, which provides that: "The submission of the draft sectional plan to the Surveyor-General shall be accompanied by - (a) a certificate issued by an architect or a land surveyor stating that the proposed division into sections and common property is not contrary to any operative town planning scheme ………" (emphasis added).
- Attention is drawn, finally, to section 25 (5A) (a) of the STA, which provides that: "If the right reserved in terms of subsection (1) is exercised, the developer or his or her successor in title shall immediately after completion of the relevant unit apply for the registration of the relevant plan of extension and the inclusion of such unit in the relevant sectional title register." (emphasis added).
- Therefore, on the basis of the afore-going, the practical problems mentioned in the article should not be encountered if the following procedure, in brief, is strictly adhered to, with specific regard to a Sectional Plan of Extension referred to in section 25 (9) of the STA, which shows a deviation from the documents referred to in section 25 (2) of the STA ("the documents"):-
(a) Identify the "changed circumstances" referred to in section 25 (13).
(b) Cause the draft Sectional Plan of Extension to be prepared and submitted to the Surveyor-General for approval.
(c) After obtaining the Surveyor-General's approval, apply to the Court for condonation of the deviation.
(d) If the condonation is granted, erect and divide the building or buildings into sections strictly in accordance with the approved Sectional Plan of Extension.
(e) Apply for the registration of the approved Sectional Plan of Extension.
- I cannot find any basis for the statement in paragraph 2 of the article that: "Both the Court as well as the conference ruling seem to have lost sight of the fact that there is no requirement in terms of section 25(2) for those "phase" plans to be prepared by a land surveyor, architect or other qualified person or that they be approved by the Surveyor General." According to paragraph 9 of the Dolphin Whisper case, the issue was: "The question is whether the first respondent acted unlawfully in rejecting the applicant's section 25 (9) application." Therefore, attention is drawn to section 25 (8) of the STA, which provides that: "The provisions of sections 5, 6 and 7 shall apply mutatis mutandis to the submission of a draft sectional plan of extension to the Surveyor-General in terms of this section and the approval thereof by him…………….." (emphasis added).
- Potential problems with the extension of sections in terms of section 24 of STA
Section 24 (5) of the STA provides that: "The provisions of section 7 (3) and (4) shall apply mutatis mutandis to the preparation and submission of a draft sectional plan of extension of a section to the Surveyor-General, and to the approval of such plan by him." The procedure set out in paragraph 5 above should eliminate the problems alluded to in the article.
- Other potential problems with section 25 (14) and (15)
Since, in the example given in the article, no real right of extension of the scheme as contemplated in section 25 of the STA is registered in favour of the Developer, the Conveyancer's Certificate, in terms of section 15B (3) (a) (ii) of the STA, would simply state that fact. That is all. Sub-sections (14) and (15) of section 25 of the STA apply only to "cases where a developer or a body corporate has a real right to extend a scheme as contemplated in" section 25 of the STA.
14 September 2010