Incisions

Introduction
Incision is the terminology used when the boundaries of an existing township are extended by the inclusion of a portion of land (farm) to form part of the said township.

When an owner of land wishes to have the boundaries of an approved township extended to include his/her land, as contemplated in section 49 of the Deeds Registries Act 47 of 1937 (“the Act”), he/she may apply, in writing, via the local authority, within whose area of jurisdiction the township is situated, to the Premier for his/her approval to have the land included in the said approved township.

Section 49(1) of the Act reads as follows:

“If any area of land in the province of the Transvaal constitutes by reason of its situation a portion of an existing township, the Administrator may, by proclamation in the official Gazette of that Province, extend the boundaries of that township to include such area, and thereupon such area of land shall be deemed to be and shall be registered as an erf in that township.”

and

Section 88(1) of the Town-planning and Township Ordinance 15 of 1986 (Transvaal) (“the Ordinance”) reads as follows:

“An owner of the land contemplated in section 49 of the Deeds Registries Act, 1937, who wishes to have the boundaries of an approved township extended to include his land as contemplated in that section may, in such form as the Director may determine, apply in writing through the local authority within whose area of jurisdiction the township is situated, to the Administrator for his approval,........”

The above legislation specifically provides for this act of registration.

Approval
The Premier of the Province in whose jurisdiction the township and farm are situated must approve the extension of the boundaries of the township by approving the inclusion of the land into the boundaries of the existing township, and the Premier will, after approval, by Proclamation in an official Gazette of that Province, extend the boundaries of the existing township to include the said land into the township area. Section 49(1) of the Act stipulates that upon such Proclamation, the land shall be deemed to be and shall be registered as an erf in that Township, which also means that the land may not be dealt with in any way, until the title thereof has been endorsed regarding the inclusion of the land into the boundaries of the existing township. Usually the registrar of deeds will note a caveat against the land to indicate that the land has been included into the boundaries of the existing township. This will prevent any further dealings with the land until the title thereof has been endorsed regarding the incision. The property may only be dealt with as an erf after Proclamation, as provided for in section 49(1) of the Act. The title of the land will be endorsed regarding the incision by the registrar of deeds, on application by the registered owner of the land. It is important to note that the registered bonds over the land, together with the consent to the incision by the bondholders. will also need to be lodged and endorsed regarding the inclusion of the land as an erf in the township.

Surveyor-General
After approval of the inclusion of the land into the existing township by the Premier, the Surveyor-General will endorse the diagram of the land to the effect that it has been included into the boundaries of the township and will also allocate a new property description to the land. The Surveyor-General will also indicate on the general plan of the township that the borders of the township have been extended by the inclusion of the land as an erf into the township.

Subdivision of Agriculture Land Act 70 of 1970
The provisions of the Subdivision of Agriculture Land Act 70 of 1970 are not applicable to incisions. and therefore the consent of the Minister of Agriculture need not be obtained for the incision of the land into the boundaries of the existing township.

Conditions
When a Township is established in terms of Ordinance 15 of 1986, section 79 of the Ordinance stipulates that the Premier of that Province shall, in a notice declare the township as an approved township in an official Gazette of that Province, and shall in a schedule to such notice, set out the conditions on which the township is declared as an approved township. Section 88(3)(a) of the Ordinance provides for the Premier, on approval of the inclusion of the land stipulated in section 88(1) of the Ordinance, to apply all or any of the conditions, as contemplated in section 79, on which the township concerned was declared an approved township. This entails that the land included will be subject to those conditions as was imposed on the initial township. Section 88(4) of the Ordinance stipulates that the conditions imposed by the Premier, as contemplated in section 99(3) of the Ordinance, has the same force of law as the conditions imposed in terms of section 79 of the Ordinance, Section 88(4)01 the Ordinance requires the conditions imposed in terms of section 88(3) of the Ordinance to be set out in a schedule to the proclamation contemplated in section 49 of the Act.

Endowment
Section 71(2) of the Ordinance authorizes the Premier to, when a Township is established in terms of Ordinance, impose a condition regarding the payment of an endowment in cash or an endowment in any other kind or both. Section 88(3) of the Ordinance provides for the Premier, on approval of the inclusion of the land into the existing township, to impose the same endowment as contemplated in section 71(2) of the Ordinance and also impose a condition that the applicant shall pay to the local authority an amount of money in respect of the provision of engineering services contemplated in Chapter V of the Ordinance, where it will be necessary to enhance or improve as a result of the approval of the application. On registration of the incision, proof will have to be provided to the registrar of deeds to the effect that the conditions relating to endowment, if any such condition was imposed, has been complied with.

Townships situated in the jurisdiction of the Johannesburg deeds registry
Section 49(3) the Act prohibits the establishment or layout of a township unless all the land included in such township is situated within the jurisdiction area of the same deeds registry. The Pretoria deeds registry has the jurisdiction over all farm land that resorts in the area of the jurisdiction of the Johannesburg deeds registry, and thus all such incisions will have to be registered in the Pretoria deeds registry. Section 49(2) of the Act provides that if a township is situated in the area served by the deeds registry at Johannesburg, the registrar of deeds at Pretoria shall furnish the registrar of deeds at Johannesburg with certified copies of the title to the land to be included in such township and all deeds affecting it, and the registrar of deeds at Johannesburg shall thereupon enter the same in the appropriate registers in his/her deeds registry.

Conclusion
The Ordinance is only applicable to the former Transvaal and thus the registration and approval for the inclusion of land to extend the boundaries of an existing township, as discussed in this article, will only apply to Pretoria and Mpumalanga deeds registries.

Theo Bester
Assistant Registrar of Deeds (Training)
Pretoria Deeds Registry